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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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DATE OF REPORT: MAY 16, 1997
(Date of earliest event reported)
PHOTOGEN TECHNOLOGIES, INC.
(FORMERLY KNOWN AS M T FINANCIAL GROUP, INC.)
(Exact name of registrant as specified in its charter)
NEVADA 0-95440 36-4010347
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
1055 COMMERCE PARK DRIVE
OAK RIDGE, TENNESSEE 38370
(Address of principal executive offices) (Zip Code)
(423) 482-3671
(Registrant's telephone number including area code)
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
As set forth in Forms 8-K and 8-KA dated April 17, 1997 filed with
the Securities and Exchange Commission by M T Financial Group, Inc. (now
known as Photogen Technologies, Inc.) (the "Company") and incorporated herein
by reference, the Company entered into a Plan and Agreement of
Recapitalization and Merger, dated as of April 17, 1997, with M T Merging
Corp., Photogen, Inc., a Tennessee corporation ("Photogen"), Photogen,
L.L.C., and Eric A. Wachter, Ph.D., Craig Dees, Ph.D., Walter G. Fisher,
Ph.D., Tim Scott, Ph.D., and John Smolik, and joined into by Theodore
Tannebaum, Robert J. Weinstein, M.D. and Stuart P. Levine (the "Agreement").
The transactions contemplated by the Agreement closed on May 16,
1997 and, as a result, a change in control of the Company occurred
concurrently with such closing. Immediately after the closing, the Company
had 36 million shares of common stock outstanding, of which Mr. Tannebaum,
Dr. Weinstein and several other Chicago investors beneficially owned
approximately 11 million shares (30%), Drs. Wachter, Dees, Fisher and Scott
and Mr. Smolik owned approximately 24 million shares (67%) and the public
(approximately 450 shareholders) owned approximately 1 million shares (3%).
(Before the closing, Messrs. Tannebaum, Levine and Dr. Weinstein collectively
beneficially owned approximately 96% of the Company's common stock.)
The Company issued 4,800,000 shares to each of Drs. Wachter, Dees,
Fisher and Scott and Mr. Smolik (24,000,000 shares in the aggregate) in
exchange for the 100 shares of Photogen owned by each of them immediately
prior to the merger. Following the merger, the Company became the holding
company of Photogen.
Photogen has employment agreements with Drs. Wachter, Fisher and
Dees as Research Scientists and Mr. Smolik as its Chief Executive Officer.
Mr. Smolik is also the new President and CEO of the Company. At the closing,
the Board of Directors of the company was expanded to five directors and four
new members were elected. Drs. Wachter, Fisher and Dees and Mr. Smolik, join
Dr. Weinstein who retained his seat on the Board. Unanimous board approval
is required for all extraordinary transactions, as provided in Article IV of
the Company's amended Bylaws (see Exhibit 3(ii) hereto.)
Messrs. Tannebaum, Levine, Dr. Weinstein, Thomas B. Rosenberg (the
"Chicago Stockholders") and Drs. Wachter, Dees, Fisher and Scott and Mr.
Smolik (the "Tennessee Stockholders") are parties to that certain Voting
Agreement dated May 16, 1997. The Voting Agreement provides that the
Tennessee Stockholders and Chicago Stockholders will vote their shares
(including any shares beneficially owned by them) of Company Common Stock (i)
in accordance with the unanimous recommendation of the Board of Directors
with respect to any amendments to the Articles of Incorporation or Bylaws,
(ii) to fix the number of directors at five, (iii) to elect to the Board of
Directors four persons nominated by the Tennessee Stockholders and one person
nominated by the Chicago Stockholders (and to remove any such director at the
request of the stockholders who nominated him), and (iv) to fix the number of
directors on the Board's Executive Committee at three, two of whom will be
selected by the Tennessee Stockholders and one of whom will be selected by
the Chicago Stockholders. In addition, in the Company's capacity as sole
stockholder of its subsidiary, the Company agreed to comparable voting
requirements and restrictions with respect to Photogen. The Voting Agreement
has a term of 15 years, so long as the Tennessee Stockholders and Chicago
Stockholders are the beneficial owners of 20% or more of the Company's
outstanding Common Stock during that period.
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Pursuant to the Agreement referred to in Item 1 above, on May 16,
1997, the Company acquired by merger all outstanding stock of Photogen in
exchange for 24 million shares of the Company's common stock. Photogen's
assets include certain technology, including patents and know-how, which are
set forth in more detail in the Form 8-K dated April 17, 1997 filed with the
Securities and Exchange Commission and incorporated herein by reference
(which includes the Press Release of the Company dated April 18, 1997).
The conversion ratio of Photogen's shares into the Company's shares
was arrived at through arms'-length negotiations. The Company's Board of
Directors considered various factors in connection with the evaluation of the
recapitalization of the Company and the 24,000,000 shares of Common Stock to
be issued to the five shareholders of Photogen for its technology, and in
doing so valued the Photogen technology and its assets for at least $24,000,
being the par value of the Common Stock to be issued in the merger as a
result of which the Company acquired such technology and assets. However,
the Board did not find it possible to, and did not quantify or otherwise
attempt to, assign relative weights to such factors in reaching its
conclusions. The Company's Board did not seek an opinion of an independent
financial advisor nor did the Board believe such an opinion is necessary
under the circumstances.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) An audited balance sheet and statement of income and cash flow of
the business acquired (Photogen, Inc.) for the period ending
December 31, 1996 and unaudited interim financial statements are
not included in this Report and shall be filed on or before
July 30, 1997, together with a signed accountant's report for
the audited financial statements and the Financial Data Schedule.
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(b) Pro forma condensed balance sheets and statements of income of
the Company and Photogen, Inc. for the periods ending December 31,
1996 and March 31, 1997 are not included in this Report and
shall be filed on or before July 30, 1997.
(c) The following exhibits are filed with this report:
2. Plan and Agreement of Recapitalization and Merger, dated as
of April 17, 1997, among the Company, Photogen, L.L.C. and
certain other parties (see Exhibit 2 to the Company's
Form 8-KA dated April 17, 1997, incorporated herein by
reference).
3(i) Restated Articles of Incorporation of Photogen Technologies,
Inc.
3(ii) Amended and Restated Bylaws of Photogen Technologies, Inc.
99(i) Press release of the Company, dated April 18, 1997, related
to the transaction in the Agreement (see Exhibit 99 to the
Company's Form 8-K dated April 17, 1997, incorporated herein
by reference).
99(ii) Press release of the Company, dated May 23, 1997, relating
to the closing of the transactions contemplated by the
Agreement.
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.
Photogen Technologies, Inc.
/s/ John Smolik
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Date: May 30, 1997 John Smolik, President
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EXHIBIT INDEX
Exhibit
No. Description
2 Plan and Agreement of Recapitalization and Merger, dated as of
April 17, 1997, among the Company, Photogen, L.L.C. and certain
other parties (see Exhibit 2 to the Company's Form 8-KA dated
April 17, 1997, incorporated herein by reference).
3(i) Restated Articles of Incorporation of Photogen Technologies, Inc.
3(ii) Amended and Restated By-laws of Photogen Technologies, Inc.
99(i) Press release of the Company, dated April 18, 1997, related to
the transaction in the Agreement (see Exhibit 99 to the Company's
Form 8-K dated April 17, 1997, incorporated herein by reference).
99(ii) Press release of the Company, dated May 23, 1997, relating to the
closing of the transactions contemplated by the Agreement.
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EXHIBIT 3(i)
RESTATED ARTICLES OF INCORPORATION
OF
PHOTOGEN TECHNOLOGIES, INC.
We, the undersigned, for the purpose of amending and restating the
Articles of Incorporation of M T Financial Group, Inc. filed December 28,
1994 with the Secretary of State of Nevada to establish a corporation under
the provisions and subject to the requirements of Title 7, Chapter 78 of the
Nevada Revised Statutes, and the acts amendatory thereof, and hereinafter
sometimes referred to as the General Corporation Law of the State of Nevada,
do hereby adopt and make the following Restated Articles of Incorporation:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is: Photogen Technologies, Inc.
SECOND: The resident agent of the Corporation within the State of
Nevada is The Corporation Trust Company of Nevada, whose address is One East
First Street, Reno, Nevada 89501.
THIRD: The nature of the business of the Corporation and the
objects or the purposes to be transacted, promoted, or carried on by it are
to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Nevada.
FOURTH: (a) The total number of shares of all classes of stock
which the Corporation shall have the authority to issue is one hundred
fifty-five million (155,000,000), of which (i) one hundred fifty million
(150,000,000) shares shall be Common Stock, par value $.001 per share
("Common Stock"), and (ii) five million (5,000,000) shares shall be Preferred
Stock, par value $.01 per share ("Preferred Stock"), which Preferred Stock
may be issued from time to time by the Board of Directors. The Board of
Directors is authorized to prescribe the classes, series and the number of
each class or series of Preferred Stock and the voting powers, designations,
preferences, limitations, restrictions and relative rights of each class or
series of Preferred Stock. The voting powers, designations, preferences,
limitations, restrictions, relative rights and distinguishing designation of
each class or series of Preferred Stock shall be described in one or more
resolutions of the Board of Directors authorizing the issuance of such class
or series of Preferred Stock.
(b) No holder of any of the shares of any class or series of
capital stock of the Corporation shall have a preemptive right to acquire
unissued shares, treasury shares or securities convertible into or carrying a
right to subscribe for or acquire any such shares.
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(c) Any paid-up shares of stock of the Corporation and any
shares of stock of the Corporation issued as fully paid-up shall not be
assessable or assessed in any manner or for any cause.
FIFTH: (a) The governing board of the Corporation shall be styled as
a "Board of Directors," and any member of said Board shall be styled as a
"director."
(b) The authorized number of members constituting the Board of
Directors of the Corporation is five (5); and the names and addresses of said
members are as follows:
NAME ADDRESS
Robert J. Weinstein, M.D. 875 North Michigan Avenue
Suite 2930
Chicago, IL 60611
John T. Smolik 1055 Commerce Park Drive
Oak Ridge, Tennessee 37830
Eric A. Wachter, Ph.D. 1055 Commerce Park Drive
Oak Ridge, Tennessee 37830
Craig Dees, Ph.D. 1055 Commerce Park Drive
Oak Ridge, Tennessee 37830
Walter G. Fisher, Ph.D. 1055 Commerce Park Drive
Oak Ridge, Tennessee 37830
(c) All vacancies on the Board of Directors, including those
caused by an increase in the number of directors, shall only be filled by vote
or consent of the stockholders.
SIXTH: The Corporation shall have perpetual existence.
SEVENTH: The personal liability of the directors to the Corporation
or its stockholders is hereby eliminated to the fullest extent permitted by the
General Corporation Law of the State of Nevada, as the same may be amended and
supplemented. No amendment to or repeal of this Article Seventh shall apply to
or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to the effective date of such amendment or repeal.
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EIGHTH: The Corporation shall, to the fullest extent permitted by the
General Corporation Law of the State of Nevada, as the same may be amended and
supplemented, indemnify each person who is or was a director of the Corporation
and each person who serves or served at the request of the Corporation as a
director of another enterprise. The indemnification provided for herein shall
not be deemed exclusive of any other rights to which such person may be entitled
under any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise. No amendment to or repeal of this Article Eighth shall apply to or
have any effect on the rights of any person referred to in this Article Eighth
for or with respect to acts or omissions of such person occurring prior to such
amendment or repeal. The indemnification provided in this Article Eighth shall
continue as to a person who has ceased to be a director and shall inure to the
benefit of the heirs, executors and administrators of such person.
NINTH: The Corporation reserves the right to amend, alter, change, or
repeal any provision contained in these Articles of Incorporation in the manner
now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
We, the undersigned President and Secretary, respectively, of the
Corporation, hereby certify that the amendment of the original Articles of the
Corporation was adopted by the holders of at least 28,074,404 shares of stock
eligible to vote thereon which represents approximately at least 96% of the
shares of the Corporation eligible to vote thereon.
IN WITNESS WHEREOF, we do hereby execute these Restated Articles of
Incorporation on May 15,1997.
/s/ Stuart P. Levine
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Stuart P. Levine, President
/s/ Kathleen A. Beauchamp
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Kathleen A. Beauchamp, Secretary
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
On this 15th day of May, 1997, personally appeared before me, a Notary
Public in and for the State and County aforesaid, Stuart P. Levine and Kathleen
A. Beauchamp, known to me to be the persons described in and who executed the
foregoing
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Restated Articles of Incorporation, and who acknowledged to me that he
and she, respectively, executed the same freely and voluntarily and for the uses
and purposes therein mentioned.
WITNESS my hand and official seal, the day and year first above
written.
/s/ Martha L. Bongiorno
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Notary Public
["Official Seal" affixed]
(Notarial Seal)
CERTIFICATE OF ACCEPTANCE
OF APPOINTMENT BY REGISTERED AGENT
The Corporation Trust Company of Nevada hereby accepts the
appointment as Registered Agent of the above named corporation.
The Corporation Trust Company of Nevada
Dated: May 15, 1997 By: /s/ Jeffrey R. Graves
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Assistant Secretary
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EXHIBIT 3(ii)
BYLAWS
OF
PHOTOGEN TECHNOLOGIES, INC.
(AMENDED AND RESTATED AS OF MAY 16, 1997)
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office
of the corporation may be located within or without the State of Nevada. The
Board of Directors (herein called the "Board") is hereby granted full power and
authority to change the principal executive office or the location of any other
corporate office from one location to another.
Section 2. OTHER OFFICES. Branch or subordinate offices may at any
time be established by the Board at any place or places.
ARTICLE II
STOCKHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall be held
either at the principal executive office of the corporation or at any other
place within or without the State of Nevada which may be designated either by
the Board or by the written consent of all persons entitled to vote thereat,
given either before or after the meeting and filed with the Secretary.
Section 2. ANNUAL MEETINGS. The annual meetings of stockholders shall
be held on the last Tuesday of each April, at 10:00 o'clock a.m., local time, or
such other date or such other time as may be fixed by the Board. At such
meetings, directors shall be elected and any other proper business may be
transacted.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders may
be called at any time by the Board, the Chairman of the Board, the President, or
by the holders of shares entitled to cast not less than 10 percent of the votes
at such meeting. Upon request in writing to the Chairman of the Board, the
President, any Vice President or the Secretary by any person (other than the
Board) entitled to call a special meeting of stockholders, the officer forthwith
shall cause notice to be given in writing to the stockholders entitled to vote
that a meeting will be held at a time requested by the person or persons calling
the meeting, not less than 10 nor more than 60 days after the receipt of the
request.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Written notice of
each annual or special meeting of stockholders shall be given not less than
ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote thereat. Such notice shall state the place,
date, and hour of the meeting and (a) in the case of a special meeting, the
general nature of the business to be transacted, and no other business may be
transacted, or (b) in the case of the annual meeting, those matters which the
Board, at the time of the mailing of the notice, intends to present for
action by the stockholders, but, subject to the provisions of applicable law,
any proper matter may be presented at the meeting for such
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action. The notice of any meeting at which directors are to be elected
shall include the names of nominees intended at the time of the notice to be
presented by management for election.
Notice of a stockholders' meeting shall be given either by mail or by
other means of written communication, addressed to the stockholder at the
address of such stockholder appearing on the books of the corporation or given
by the stockholder to the corporation for the purpose of notice, or, if no such
address appears or is given, at the place where the principal executive office
of the corporation is located or by publication at least once in a newspaper of
general circulation in the county in which the principal executive office is
located. Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient.
Section 5. QUORUM. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of
stockholders. If a quorum is present, the affirmative vote of the majority of
the shares represented at the meeting and voting at the meeting (which shares
voting affirmatively also constitute at least a majority of the required quorum)
shall be the act of the stockholders, unless the vote of a greater number or
voting by classes is required by law, by the Articles of Incorporation or the
Bylaws and except as provided in the following sentence. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any stockholders'
meeting, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares, represented either in person or by
proxy, but in the absence of a quorum (except as provided in Section 5 of this
Article) no other business may be transacted at such meeting.
It shall not be necessary to give any notice of the time and place of
the adjourned meeting or of the business to be transacted thereat, other than by
announcement at the meeting at which such adjournment is taken; provided,
however, when any stockholders' meeting is adjourned for more than 45 days, or
if after adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given as in the case of an original
meeting.
Section 7. VOTING. The stockholders entitled to notice of any meeting
or to vote at any such meeting shall be only persons in whose name shares stand
on the stock records of the corporation on the record date determined in
accordance with Section 8 of this Article.
Voting shall in all cases be subject to the provisions of Title 7 of
the Nevada Revised Statutes and to the following provisions:
(a) Shares held by an administrator, executor, guardian, conservator
or custodian may be voted by such holder either in person or by proxy, without a
transfer of such shares into the holder's name; and shares standing in the name
of a trustee may be voted by the trustee, either in person or by proxy, but no
trustee shall be entitled to vote shares held by such trustee without a transfer
of such shares into the trustee's name.
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(b) Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into the receiver's name if authority
to do so is contained in an order of the court by which such receiver was
appointed.
(c) Subject to the provisions of Title 7 of the Nevada Revised
Statutes, and except where otherwise agreed in writing between the parties, a
stockholder whose shares are pledged shall be entitled to vote such shares until
the shares have been transferred into the name of the pledgee, and thereafter
the pledgee shall be entitled to vote the shares so transferred.
(d) Shares standing in the name of a minor may be voted and the
corporation may treat all rights incident thereto as exercisable by the minor,
in person or by proxy, whether or not the corporation has notice, actual or
constructive, of the minority, unless a guardian of the minor's property has
been appointed and written notice of such appointment given to the Secretary of
the corporation.
(e) Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxyholder as the bylaws of
such other corporation may prescribe or, in the absence of such provision, as
the Board of Directors of such other corporation may determine or, in the
absence of such determination, by the chairman of the board, president or any
vice president of such other corporation. Shares which are purported to be
voted or any proxy purported to be executed in the name of a corporation
(whether or not any title of the person signing is indicated) shall be presumed
to be voted or the proxy executed in accordance with the provisions of this
clause, unless the contrary is shown.
(f) If shares stand of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
husband and wife as community property, tenants by the entirety, voting
trustees, persons entitled to vote under a stockholder voting agreement or
otherwise, or if two or more persons (including proxyholders) have the same
fiduciary relationship respecting the same shares, unless the Secretary of the
corporation is given written notice to the contrary and is furnished with a copy
of the instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the following
effect:
(i) If only one votes, such act binds all;
(ii) If more than one vote, the act of the majority so voting
binds all; and
(iii) If more than one vote, but the vote is evenly split on
any particular matter, each faction may vote the securities in
question proportionately.
If the instrument so filed or the registration of the shares shows that any such
tenancy is held in unequal interests, a majority or even split for the purpose
of this section shall be a majority or even split in interest.
(g) No stockholder shall be entitled to cumulate votes at any
election of directors. Elections need not be by ballot; provided, however, that
all elections for directors must be by ballot upon demand made by the Chairman
of the Board or by a majority of the outstanding shares entitled to vote
therefor at the meeting and before the voting begins.
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Section 8. RECORD DATE. The Board may fix, in advance, a
record date for the determination of the stockholders entitled to notice of
any meeting or to vote, or entitled to receive payment of any dividend or
other distribution, or any allotment of rights, or to exercise rights in
respect of any other lawful action. The record date so fixed shall be not
more than 60 days prior to the date of the meeting nor more than 60 days
prior to any other action. When a record date is so fixed, only stockholders
of record on that date are entitled to notice of and to vote at the meeting
or to receive the dividend, distribution, or allotment of rights, or to
exercise of the rights, as the case may be, notwithstanding any transfer of
shares on the books of the corporation after the record date. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting unless
the Board fixed a new record date for the adjourned meeting. The Board shall
fix a new record date if the meeting is adjourned for more than 45 days.
If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held. The record date for determining stockholders for any
purpose other than set forth in this Section 8 or Section 10 of this Article
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto, or the sixtieth day prior to the date of such
other action, whichever is later.
Section 9. CONSENT OF ABSENTEES. The transactions of any meeting of
stockholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum
is present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice, or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents,
or approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a person shall constitute a waiver of
notice of and presence at such meeting, except when the person objects, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened and except that attendance at a
meeting is not a waiver of any right to object to the consideration of
matters required by Title 7 of the Nevada Revised Statutes to be included in
the notice but not so included, if such objection is expressly made at the
meeting. Neither the business to be transacted at nor the purpose of any
regular or special meeting of stockholders need be specified in any written
waiver of notice, consent to the holding of the meeting or approval of the
minutes thereof, except as provided in Title 7 of the Nevada Revised Statutes.
Section 10. ACTION WITHOUT MEETING. Any action which under any
provision of Title 7 of the Nevada Revised Statutes may be taken at any
annual or special meeting of stockholders, may be taken without a meeting and
without prior notice if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Unless a record date for voting purposes be fixed as
provided in Section 8 of this Article, the record date for determining
stockholders entitled to give consent to pursuant to this Section 10, when no
prior action by the Board has been taken, shall be the day on which the first
written consent is given.
Section 11. PROXIES. Every person entitled to vote shares has the right
to do so either in person or by one or more persons authorized by a written
proxy executed by such stockholder and filed with the Secretary. Any proxy duly
executed is not revoked and continues in full force and effect until revoked
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by the person executing it prior to the vote pursuant thereto by a
writing delivered to the Secretary of the corporation stating that the proxy
is revoked or by a subsequent proxy executed by the person executing the
prior proxy and presented to the meeting, or by attendance at the meeting and
voting in person by the person executing the proxy.
Section 12. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board may appoint inspectors of election to act at such
meeting and any adjournment thereof. If inspectors of election be not so
appointed, or if any persons so appointed fail to appear or refuse to act,
the chairman of any such meeting may, and on the request of any stockholder
or stockholder's proxy shall, make such appointment at the meeting. The
number of inspectors shall be either one or three. If appointed at a meeting
on the request of one or more stockholders or proxies, the majority of shares
present shall determine whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Title 7 of
the Nevada Revised Statutes and shall include: determining the number of
shares outstanding and the voting power of each; determining the shares
represented at the meeting; determining the existence of a quorum;
determining the authenticity, validity, and effect of proxies; receiving
votes, ballots, or consents; hearing and determining all challenges and
questions in any way arising in connection with the right to vote; counting
and tabulating all votes or consents; determining when the polls shall close;
determining the result; and doing such acts as may be proper to conduct the
election or vote with fairness to all stockholders. If there are three
inspectors of election, the decision, act, or certificate of a majority is
effective in all respects as the decision, act, or certificate of all.
Section 13. CONDUCT OF MEETING. The Chairman of the Board shall
preside as Chairman at all meetings of the stockholders. The Chairman shall
conduct each such meeting in a businesslike and fair manner, but shall not be
obligated to follow any technical, formal or parliamentary rules or
principles of procedure. The Chairman's rulings on procedural matters shall
be conclusive and binding on all stockholders, unless at the time of a ruling
a request for a vote is made to the stockholders entitled to vote and
represented in person or by proxy at the meeting, in which case the decision
of a majority of such shares shall be conclusive and binding on all
stockholders. Without limiting the generality of the foregoing, the Chairman
shall have all of the powers usually vested in the chairman of a meeting of
stockholders.
Section 14. PARTICIPATION IN MEETING BY CONFERENCE TELEPHONE.
Stockholders may participate in a meeting of the stockholders by means of
conference telephone or similar method of communication by which all persons
participating in the meeting can hear one another.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to limitations of the Articles of
Incorporation, these Bylaws, and Title 7 of the Nevada Revised Statutes relating
to action required to be approved by the stockholders or by the outstanding
shares, the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the Board. The
Board may delegate the management of the day-to-day operation of the business of
the corporation to its officers, provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised
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under the ultimate direction of the Board. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the Board shall have the following powers in addition to the
other powers enumerated in these Bylaws:
(a) To select and remove all the officers, agents, and employees of
the corporation, prescribe the powers and duties for them as may not be
inconsistent with law, the Articles of Incorporation or these Bylaws, fix their
compensation, and require from them security for faithful service.
(b) To conduct, manage, and control the affairs and business of the
corporation and to make such rules and regulations therefor not inconsistent
with law, the Articles of Incorporation or these Bylaws.
(c) To adopt, make, and use a corporate seal, and to prescribe the
forms of certification of stock, and to alter the form of such seal and of such
certificates from time to time.
(d) To authorize the issuance of shares of stock of the corporation
from time to time, upon such terms and for such consideration as may be lawful.
(e) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations, or other evidence of debt and securities therefor.
Section 2. VACANCIES. (a) Any director may resign effective upon
giving written notice to the Chairman of the Board, the President, or the
Secretary, unless the notice specifies a later time for the effectiveness of
such resignation. If the resignation is effective at a future time, a successor
may be elected to take office when the resignation becomes effective.
(b) Vacancies in the Board shall be filled by the stockholders, and
each director so elected shall hold office until the next annual meeting and
until such director's successor has been elected and qualified.
(c) A vacancy or vacancies in the Board shall be deemed to exist in
case of the death, resignation, or removal of any director, or if the authorized
number of directors is increased.
(d) The Board may declare vacant the office of a director who has
been declared of unsound mind by an order of court or convicted of a felony.
(e) No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of the director's term
of office.
Section 3. PLACE OF MEETING. Regular or special meetings of the Board
shall be held at any place within or without the State of Nevada which has been
designated from time to time by the Board. In the absence of such designation,
regular meetings shall be held at the principal executive office of the
corporation.
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Section 4. REGULAR MEETINGS. Immediately following each annual meeting
of stockholders the Board shall hold a regular meeting for the purpose of
organization, election of officers, and the transaction of other business.
Section 5. SPECIAL MEETINGS. (a) Special meetings of the Board for any
purpose or purposes may be called at any time by the Chairman of the Board, the
President, any Vice President, the Secretary, or by any two directors.
(b) Special meetings of the Board shall be held upon two days'
written notice or 24 hours' notice given personally or by telephone, telegraph,
telex, or other similar means of communication. Any such written notice shall
be addressed or delivered to each director at such director's address as it is
shown upon the records of the corporation or as may have been given to the
corporation by the director for purposes of notice or, if such address is not
shown on such records or is not readily ascertainable, at the place in which the
meetings of the directors are regularly held.
(c) Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone, to the
recipient.
Section 6. QUORUM. A majority of the authorized number of directors
constitutes a quorum of the Board for the transaction of business, except (a)
where the Articles of Incorporation or Bylaws require action by all directors,
in which case a quorum shall consist of all of the authorized number of
directors, and (b) to adjourn as hereinafter provided. Every act or decision
done or made by a majority of the directors present at a meeting duly held at
which a quorum is present shall be regarded as the act of the Board, except (x)
where the Articles of Incorporation or Bylaws require action by all directors,
in which case such act or decision shall be done or made by unanimous approval
or consent of the authorized number of directors and (y) where a greater number
is required by law, the Articles of Incorporation or elsewhere in these Bylaws.
Section 7. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members
of the Board may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another.
Section 8. WAIVER OF NOTICE. Notice of a meeting need not be given to
any director who signs a waiver of notice or a consent to holding the meeting or
an approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 9. ADJOURNMENT. A majority of the directors present, whether
or not a quorum is present, may adjourn any directors' meeting to another time
and place. Notice of the time and place of holding an adjourned meeting need
not be given to absent directors if the time and place be fixed at the meeting
adjourned, except as provided in the next sentence. If the meeting is adjourned
for more than 24 hours, notice of any adjournment to another time or place shall
be given prior to the time of the adjourned meeting to the directors who were
not present at the time of the adjournment.
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Section 10. FEES AND COMPENSATION. Directors and members of committees
may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by the Board.
Section 11. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board may be taken without a meeting if all members of the Board
shall individually or collectively consent in writing to such action. Such
consent or consents shall have the same effect as a unanimous vote of the Board
and shall be filed with the minutes of the proceedings of the Board.
Section 12. RIGHTS OF INSPECTION. Every director shall have the
absolute right at any reasonable time to inspect and copy all books, records,
and documents of every kind and to inspect the physical properties of the
corporation and also of its subsidiary corporations, domestic or foreign. Such
inspection by a director may be made in person or by agent or attorney and
includes the right to copy and obtain extracts of documents.
Section 13. COMMITTEES.
(a) By unanimous vote or consent of all of the authorized number of
directors, the Board may designate one or more committees, each consisting of
one or more directors, and delegate to such committees any of the authority of
the Board except with respect to:
(i) The approval of any action for which Title 7 of the Nevada
Revised Statutes also requires stockholders' approval or approval of
the outstanding shares;
(ii) The filling of vacancies on the Board or in any committee;
(iii) The fixing of compensation of the directors for serving
on the Board or on any committee;
(iv) The amendment or repeal of the Bylaws or the adoption of new
bylaws;
(v) The amendment or repeal of any resolution of the Board which
by its express terms is not so amendable or repealable;
(vi) A distribution to the stockholders of the corporation except
at a rate or in a periodic amount or within a price range determined
by the Board; or
(vii) The appointment of other committees of the Board of the
members thereof.
Any such committee must be designated, and the members or alternate
members thereof appointed, by resolution adopted by all of the authorized number
of directors, and any such committee may be designated by such name as the Board
shall specify. The Board, acting through all of the authorized number of
directors, shall have the power to prescribe the manner in which proceeding of
any such committee shall be conducted. Unless the Board, acting through all of
the authorized number of directors, shall otherwise provide, the regular and
special meetings and other actions of any such committee shall be governed by
the provisions of this Article applicable to meetings and actions of the Board.
Minutes shall be kept of each meeting of each committee.
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(b) There shall be an Executive Committee consisting of three (3)
directors who may exercise the authority of the Board to the extent permitted by
law and these Bylaws, and all actions of such Executive Committee shall be made
only by unanimous approval or consent of the members of such Committee.
ARTICLE IV
ACTIONS REQUIRING UNANIMOUS
APPROVAL OR CONSENT OF
BOARD OF DIRECTORS
The following actions of the corporation shall require the unanimous
approval or consent of all of the authorized number of directors:
(a) Amending, altering, modifying or repealing the corporation's Articles
of Incorporation or Bylaws.
(b) Increasing the annual compensation, bonus or benefits of the
corporation's officers, directors or key employees under written employment
contracts or amending such employment contracts.
(c) Changing the corporation's purpose or line of business activity.
(d) Adopting or changing the corporation's annual operating and capital
budget.
(e) Granting any license or disposing of any right or interest in any of
the corporation's intellectual property or amending or making any material
filings with the U.S. Patent and Trademark Office regarding any intellectual
property now or hereafter owned by the corporation.
(f) Merging, consolidating, reorganizing, recapitalizing, restructuring,
acquiring or selling (including a lease, mortgage or other disposition) any
assets of the corporation (other than non-intellectual property assets in the
ordinary course of business), dissolving, liquidating or engaging in any similar
transaction.
(g) Issuing or selling any of the corporation's securities, granting any
options, rights or warrants to acquire any of the corporation's securities or
instruments convertible into the corporation's securities, or making any filings
with federal or state securities regulators.
(h) Declaring or paying any dividend, distribution (by way of redemption
or otherwise), stock split, reverse stock split, repurchase of any of the
corporation's securities or similar transaction.
(i) Changing the corporation's banking, public accounting, or principal
outside legal counsel relationships, or the terms or insurer of its directors'
or officers' insurance, as currently in effect for the corporation and its
subsidiaries.
(j) Incurring any debt or effecting any borrowing, other than accruals,
accounts payable to vendors and leasing office equipment, in the normal course
of business.
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(k) Entering into any transaction or commitment obligating the corporation
for more than $50,000 or to perform for a period longer than 12 months,
excluding confidentiality agreements.
(l) Otherwise engaging in any material transaction outside of the ordinary
course of business or day-to-day operations of the corporation.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a
President, a Secretary, and a Treasurer. The corporation may also have, at the
discretion of the Board, a Chairman of the Board, one or more Vice-Presidents,
one or more Assistant Secretaries, one or more Assistant Treasurers, and such
other officers as may be elected or appointed in accordance with the provisions
of Section 3 of this Article.
Section 2. ELECTION. The officers of the corporation, appointed in
accordance with the provisions of Section 3 or Section 5 of this Article, shall
be chosen annually by, and shall serve at the pleasure of, the Board, and shall
hold their respective offices until their resignation, removal, or other
disqualification from service, or until their respective successors shall be
elected.
Section 3. SUBORDINATE OFFICERS. The Board may elect, and may appoint,
such other officers as the business of the corporation may require, each of whom
shall hold office for such period, have such authority, and perform such duties
as are provided in these Bylaws or as the Board may from time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by the Board at any time or, except in the case of an
officer chosen by the Board, by any officer upon whom such power of removal may
be conferred by the Board. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause shall be filled in
the manner prescribed in these Bylaws for regular election or appointment to
such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board and stockholders and exercise and perform such other powers and duties as
may be from time to time assigned by the Board.
Section 7. PRESIDENT. Subject to such powers, if any, as may be given
by the Board to the Chairman of the Board, if there be such an officer, the
President is the chief executive officer of the
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corporation and has, subject to the control of the Board, general
supervision, direction, and control of the business and affairs of the
corporation. In the absence of the Chairman of the Board, the President
shall preside at all meetings of the stockholders and at all meetings of the
Board. The President has the general powers and duties of management usually
vested in the office of president of a corporation and such other powers and
duties as may be prescribed by the Board.
Section 8. VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board or,
if not ranked, the Vice President designated by the Board, shall perform all the
duties of the President, and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the President. The Vice Presidents shall
have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board.
Section 9. SECRETARY. The Secretary shall keep or cause to be kept, at
the principal executive office and such other place as the Board may order, a
book of minutes of all meetings of stockholders, the Board, and its committees,
with the time and place of holding, whether regular or special and, if special,
how authorized, the notice thereof given, the names of those present at Board
and committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof. The Secretary shall keep,
or cause to be kept, a copy of the Bylaws of the corporation at the principal
executive office or business in accordance with Title 7 of the Nevada Revised
Statutes.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent or
registrar, if one be appointed, a share register, or a duplicate share register,
showing the names of the stockholders and their addresses, the number and
classes of shares held by each, the number and date of cancellation of every
certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the stockholders and of the Board and of any committees thereof
required by these Bylaws or by law to be given, shall keep the seal of the
corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board.
Section 10. TREASURER. Unless the Board has elected or appointed
another person to be the corporation's chief financial officer, the Treasurer
shall be the chief financial officer of the corporation and shall keep and
maintain, or cause to be kept and maintained, adequate and correct accounts of
the properties and business transactions of the corporation, and shall send or
cause to be sent to the stockholders of the corporation such financial
statements and reports as are by law or these Bylaws required to be sent to
them. The books of account shall at all times be open to inspection by any
director.
The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the corporation with such depositaries as may be designated
by the Board. The Treasurer shall disburse the funds of the corporation as may
be ordered by the Board, shall render to the President and directors, whenever
they request it, an account of all transactions as Treasurer and of the
financial condition of the corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board.
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ARTICLE VI
INDEMNIFICATION
Section 1. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The
corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he or
she is or was a director or officer, of the corporation, or is or was serving at
the request of the corporation as a director, officer, partner, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with the action, suit or proceeding if he or she acted in good faith
and in a manner which he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding, has no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding any judgment,
order, settlement, conviction, or upon plea of NOLO CONTENDERE or its
equivalent, does not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interest of the corporation, and that, with respect
to any criminal action or proceeding, he or she had reasonable cause to believe
that his or her conduct was unlawful.
Section 2. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he or she is or was a director or officer
of the corporation, or is or was serving at the request of the corporation as a
director, officer, partner, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses,
including amounts paid in settlement and attorneys' fees actually and reasonably
incurred by him or her in connection with the defense or settlement of the
action or suit if he or she acted in good faith and in manner which he or she
reasonably believed to be in or not opposed to the best interests of the
corporation. Indemnification may not be made for any claim, issue or matter as
to which such a person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the corporation or
for amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that, in view of all the
circumstances of the case, the person if fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
Section 3. INDEMNIFICATION AGAINST EXPENSES. To the extent that a
director, officer, employee or agent of the corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Sections 1 or 2 of this Article, or in defense of any claim, issue or matter
therein, he or she must be indemnified by the corporation against expenses,
including attorneys' fees, actually and reasonably incurred by him or her in
connection with the defense.
Section 4. REQUIRED DETERMINATIONS. Any indemnification under Section
1 and 2 of this Article, unless ordered by a court or advanced pursuant to
Section 5 of this Article, must be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director or
officer is proper in the circumstances. The determination must be made:
(a) By the stockholders;
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(b) By the Board of Directors by majority vote of a quorum consisting
of directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were
not parties to the act, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
act, suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
Section 5. ADVANCE OF EXPENSES. Expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he or she is not entitled
to be indemnified by the corporation. The provisions of this Section 5 do not
affect any rights to advancement of expenses to which corporate personnel other
than directors or officers may be entitled under any contract or otherwise by
law.
Section 6. NONEXCLUSIVITY; CONTINUATION. The indemnification and
advancement of expenses authorized in or ordered by a court pursuant to this
Article VI:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the Articles of
Incorporation or any agreement, vote of stockholders or disinterested directors
or otherwise for either an action in his or her official capacity or an action
in another capacity while holding his or her office, except that
indemnification, unless ordered by a court pursuant to Section 2 of this Article
or for the advancement of expenses made pursuant to Section 5 of the Article,
may be made to or on behalf of any director or officer if a final adjudication
establishes that his or her acts or omissions involved intentional misconduct,
fraud or a knowing violation of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director or officer
and inures to the benefit of the heirs, executors and administrators of such a
person.
Section 7. INSURANCE.
(a) The corporation may purchase and maintain insurance or make other
financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, partner, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise of
any liability asserted against him or her and liability and expenses incurred by
him or her in his or her capacity as a director, officer, employee or agent, or
arising out of his or her status as such, whether or not the corporation has the
authority to indemnify him against such liability and expenses.
(b) The other financial arrangements made by the corporation pursuant
to subsection (a) of his Section 7 may include the following:
(i) The creation of a trust fund.
(ii) The establishment of a program of self-insurance.
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(iii) The securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the
corporation.
(iv) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection (b) of this
Section 7 may provide protection for any person adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable for
intentional misconduct, fraud or a knowing violation of law, except with respect
to the advancement of expenses of indemnification ordered by a court.
(c) Any insurance or other financial arrangement made on behalf of a
person pursuant to this Section 7 may be provided by the corporation or any
other person approved by the Board of Directors, even if all or part of the
other person's stock or other securities is owned by the corporation.
ARTICLE VII
MISCELLANEOUS
Section 1. INSPECTION OF BYLAWS. The corporation shall keep in its
principal executive office the original or a copy of these Bylaws as amended to
date, which shall be open to inspection by stockholders at all reasonable times
during customary office hours. If the principal executive office of the
corporation is outside the State of Nevada and the corporation has no principal
business office in such state, it shall upon the written request of any
stockholder furnish to such stockholder a copy of these Bylaws as amended to
date.
Section 2. ENDORSEMENT OF DOCUMENTS; CONTRACTS. Subject to the
provisions of applicable law, any note, mortgage, evidence of indebtedness,
contract, share certificate, conveyance, or other instrument in writing and any
assignment or endorsements thereof executed or entered into between the
corporation and any other person, when signed by the Chairman of the Board, the
President or any Vice President, and the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the corporation shall be valid and
binding on the corporation in the absence of actual knowledge on the part of the
other person that the signing officers had no authority to execute the same.
Any such instruments may be signed by any other person or persons and in such
manner as from time to time shall be determined by the Board and, unless so
authorized by the Board, no officer, agent, or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or amount.
Section 3. CERTIFICATES OF STOCK. Every holder of shares of the
corporation shall be entitled to have a certificate signed in the name of the
corporation by the Chairman of the Board, the President or a Vice President and
by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the stockholder. Any or all of the signatures on the certificate may
be facsimile. If any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if such
person were an officer, transfer agent, or registrar at the date of issue.
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Except as provided in this Section, no new certificate for shares
shall be issued in lieu of an old one unless the latter is surrendered and
cancelled at the same time. The Board may, however, if any certificate for
shares is alleged to have been lost, stolen, or destroyed, authorize the
issuance of a new certificate in lieu thereof, and the corporation may require
that the corporation be given a bond or other adequate security sufficient to
indemnify it against any claim that may be made against it (including expense or
liability) on account of the alleged loss, theft, or destruction of such
certificate or the issuance of such new certificate.
Section 4. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
President or any other officer or officers authorized by the Board or the
President are each authorized to vote, represent, and exercise on behalf of the
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the corporation. The authority herein
granted may be exercised either by any such officer in person or by any other
person authorized so to do by proxy or power of attorney duly executed by said
officer.
Section 5. STOCK PURCHASE PLANS. The corporation may adopt and carry
out a stock purchase plan or agreement or stock option plan or agreement
providing for the issue and sale for such consideration as may be fixed of its
unissued shares, or of issued shares acquired or to be acquired, to one or more
of the employees or directors of the corporation or of a subsidiary or to a
trustee on their behalf and for the payment for such shares in installments or
at one time, and may provide for aiding any such persons in paying for such
shares by compensation for services rendered, promissory notes, or otherwise.
Any such stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefor, reservation of title until full payment therefor,
the effect of the termination of employment, an option or obligation on the part
of the corporation to repurchase the shares upon termination of employment,
restrictions upon transfer of the shares, the time limits of and termination of
the plan, and any other matters, not in violation of applicable law, as may be
included in the plan as approved or authorized by the Board or any committee of
the Board.
Section 6. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction, and definitions
contained in the general provisions of Title 7 of the Nevada Revised Statutes
shall govern the construction of these Bylaws.
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EXHIBIT 99(ii)
FOR IMMEDIATE RELEASE
CHICAGO, ILLINOIS MAY 23, 1997
M T Financial Group, Inc. of Chicago, Illinois and Photogen, Inc. of
Oak Ridge, Tennessee today jointly announce that on May 16, 1997 they closed the
transactions contemplated by the Plan and Agreement of Recapitalization and
Merger dated April 17, 1997. (M T Financial Group, Inc. is the successor to
Bemax Corporation.)
As part of the transaction, M T Financial Group, Inc. changed its name
to Photogen Technologies, Inc. (the "Company") and became the holding company of
Photogen, Inc. ("Photogen"). The new CUSIP number for the Company's common
stock is: 71932A 10 1 and its new stock symbol is: PHGN. All stock
certificates representing issued and outstanding shares of M T Financial common
stock will continue to represent the same number of shares of Photogen
Technologies common stock. The Company's principal executive offices are
currently located at 1055 Commerce Park Drive, Oak Ridge, Tennessee 38370, but
will be moved in June to 7327 Oak Ridge Highway, Suite B, Knoxville, Tennessee
37931.
The transaction resulted in a change of control of the Company. As a
result of the closing, the five former principals of Photogen own approximately
67% of the Company's outstanding shares (24 million shares), certain Chicago
investors own approximately 30% of the outstanding shares (11 million shares)
and the public owns approximately 3% of the outstanding shares (1 million
shares). Also, at the closing, the Board was expanded to five directors and
four new members were elected. Eric A. Wachter, Ph.D., Walter G. Fisher, Ph.D.,
Craig Dees, Ph.D., and John Smolik (all former principals of Photogen) join
Robert J. Weinstein, M.D. (who was a director prior to the consummation of the
transaction) on the Board. (Stuart Levine and Kathleen Beauchamp resigned as
directors of the Company in connection with the closing.) Unanimous Board
approval is required for certain extraordinary transactions. In addition,
Mr. Smolik was named President and Chief Executive Officer of the Company.
As of the closing, the Company held approximately $3,000,000 in cash
and government securities. In addition, the Company holds (through Photogen)
intellectual property relating to two inventions covered by patent applications
pending with the United States Patent and Trademark Office. Through these
inventions, Photogen is attempting to develop proprietary laser-based
technologies to enhance the safety and efficacy of photodynamic therapy and
photodynamic imaging for the diagnosis and treatment of cancer and infectious
diseases.
The statements in this press release that relate to the description of
Photogen's business are forward looking statements. Such forward looking
statements involve risks and uncertainties relating to, without limitation, the
issuance of Letters Patent in the United States and worldwide covering the
Company's principal claims in its pending patent applications, the demonstration
of safety and efficacy of Photogen's technology in animal and human models, and
receipt of appropriate regulatory approvals from the U.S. Food and Drug
Administration and other agencies. While the Company is optimistic about
receiving patent protection in the United States and in the industrialized
countries of the world regarding the principal claims made in the patent
applications and in overcoming the risks referred to above, no assurance of such
results can be made at this time.
Completing human testing and seeking FDA licensure of therapeutic and
diagnostic modalities is expected to take considerably longer than a year and
will require substantial additional financing or contributions from strategic
partners, perhaps as much as $50 million. While the Company is guardedly
optimistic about achieving these goals, it cannot, however, provide assurances
that it will successfully achieve these goals or the commercial development of
its technology in the foreseeable future. The Company's success in the
commercialization of its technology must at this time be deemed speculative.
For further information, please call John Smolik, President and Chief
Executive Officer, at 423/482-3671.
