As filed with the Securities and Exchange Commission on December 12, 1996
File No. 333-___________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under the Securities Act of 1993
IMMUNE AMERICA, INC.
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(Exact Name of Registrant as Specified in its Charter)
State of Nevada 75-2641513
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(State or Other Jurisdiction of Incorporation or (IRS Employer ID No.)
Organization
211 West Wall, Midland, Texas 79701
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(Address of Principal Executive Offices) (Zip Code)
Agreement for Consulting Services
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(Full Title of the Plan)
Secretary, 211 West Wall, Midland, Texas 79701
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(Name and Address of Agent For Service)
(915) 682-1761
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(Telephone Number, Including Area Code, of Agent For Service)
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following line: X
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to Offering Price Per Aggregate Offering
be Registered Amount to be Share (1) Price Amount of
Registered Registration Fee
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Common Stock 758,008 $.08 $60,640.64 $100.00
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(1) Estimated pursuant to Rule 457(c) of the Securities Act of 1933 solely for
the purpose of calculating the registration fee, based on the average of the
high and low bid prices of the Common Stock on December 12, 1996.
Page 1 of 11 pages contained in the sequential numbering system.
The Exhibit Index may be found on Page 6 of the sequential numbering system.
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Item 3. Incorporation of Certain Documents by Reference.
The following documents are incorporated by reference in to the registration
statement:
1. The Company's Annual Report on Form 10-KSB for the year ended December 31,
1995;
2. The Company's Quarterly Reports on Form 10-QSB for the quarters ended March
31, 1996, June 30, 1996 and September 30, 1996;
3. The Company's Report on Form 8-K filed September 16, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which de-registers all
securities covered hereby then remaining unsold shall be deemed to be
incorporated as by reference herein and to be part hereof from the date of
filing of such documents, except as to any portion of any future Annual or
Quarterly Report to Stockholders which is deemed to be modified or superseded
for purposes of this Registration Statement to the extent that such statement is
replaced or modified by a statement contained in a subsequently dated document
incorporated by reference or contained in this Registration Statement.
Item 4. Description of Securities.
The Certificate of Incorporation, as amended (the "Certificate of
Incorporation") of the Company authorizes the issuance of 100,000,000 shares of
Common Stock, par value $.001 per share. Holders of Common Stock are entitled to
one vote for each share on each matter submitted to a vote of stockholders. All
outstanding shares of Common Stock of record are fully paid, validly issued and
nonassessable and the holders of Common Stock have no preemptive rights to
subscribe for or to purchase any additional securities issued by the Company.
The Certificate of Incorporation does not provide for cumulative voting. Upon
liquidation, dissolution or winding up of the Company, the holders of Common
Stock are entitled to share ratably in the distribution of assets remaining
after payment of debts and expenses. There are no conversion, sinking fund or
redemption provisions, or any restrictions on alienability with respect to the
Common Stock.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the securities registered pursuant to this
registration statement is being passed upon for the Company by Morgan F.
Johnston, Attorney, 5825 Steeplechase, Dallas, Texas 75093.
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of Nevada permits provisions in the articles,
by-laws or resolutions approved by shareholders which limit liability of
directors for breach of fiduciary duty to certain specified circumstances. The
Company's by-laws indemnify its Officers and Directors to the full extent
permitted by Nevada law. The by-laws with certain exceptions eliminate any
personal liability of a Director to the Company or its shareholders for monetary
damages for the breach of a Director's fiduciary duty and therefore a Director
cannot be held liable for damages to the Company or its shareholders for gross
negligence or lack of due care in carrying out his fiduciary duties as a
Director. The Company's Articles provide for indemnification to the full extent
permitted under law which includes all liability, damages, and costs or expenses
arising from or in connection with service for, employment by, or other
affiliation with the Company to the maximum extent and under all circumstances
permitted by law. Nevada law permits indemnification if a director or officer
acts in good faith in a manner reasonably believed to be in, or not opposed to ,
the best interest's of the corporation. A director or officer must be
indemnified as to any matter in which he successfully defends himself.
Indemnification is prohibited as to any matter in which the director or officer
is adjudged liable to the corporation. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers, and controlling persons of the Company pursuant to the foregoing
provisions or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
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Item 7. Exemption from Registration Claimed.
Does not apply
Item 8. Exhibits.
5.1 Opinion of Morgan F. Johnston, Esq. regarding legality (including consent)
24.1 Consent of Cheshier & Fuller, Inc., a professional corporation, as
Accountants
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post
effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (1) (i) and (1) (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(6) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities
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(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that is has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Midland, State of Texas, on the 12th day of December,
1996.
IMMUNE AMERICA, INC.
BY: s/s Glenn A. Little
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Glenn A. Little, President
Pursuant to the requirements on the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
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Signature Title Date
/s/ Glenn A. Little President and Chairman December 12, 1996
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Glenn A. Little
/s/ Kevin B. Halter, Jr. Director December 12, 1996
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Kevin B. Halter, Jr.
/s/ Dr. Elizabeth Huntley Vice President, Principal December 12, 1996
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Dr. Elizabeth Huntley Financial Officer and Director
/s/ Matthew Blair Director
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Matthew Blair
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Exhibit Index
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Sequential
Page Number
Exhibit No. Document Or Location
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5.1 Opinion of Morgan F. Johnston, Esq. regarding
legality (including consent)
24.1 Consent of Cheshier & Fuller, Inc.,
a professional corporation, as Accountants
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EXHIBIT 5.1
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MORGAN F. JOHNSTON
Attorney-at-Law
5825 Steeplechase
Plano, Texas 75093
Phone: (972) 239-2761
Fax: (972) 239-2761
December 12, 1996
Immune America, Inc.
211 West Wall
Midland, Texas 79701
Re: S-8 Registration Statement
Gentlemen:
At your request, I have examined the form of Registration Statement,
No.333-________, which you are filing with the Securities and Exchange
Commission, on Form S-8 (the "Registration Statement"), in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
758,008 shares of your Common Stock (the "Stock") issuable to consultants under
the Agreement for Consulting Services (the "Plan").
In rendering the following opinion, I have examined and relied only upon the
documents, and certificates of officers and directors of the Company as are
specifically described below. In my examination, I have assumed the genuineness
of all signatures, the authenticity, accuracy and completeness of the documents
submitted to me as originals, and the conformity with the original documents of
all documents submitted to me as copies. My examination was limited to the
following documents and no others:
1. Certificate of Incorporation of the Company, as amended to date;
2. Bylaws of the Company, as amended to date;
3. Certified Resolutions adopted by the Board of Directors of the Company
authorizing the Plan and the issuance of the Stock under the Plan;
4. The Registration Statement; and
5. The Form of Plan. I have not undertaken, nor do I intend to undertake,
any independent investigation beyond such documents and records, or to
verify the adequacy of accuracy of such documents and records.
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Based on the foregoing, it is my opinion that the Stock to be issued under
the Plan, subject to effectiveness of the Registration Statement and compliance
with applicable blue sky laws, and execution of the Plan in the form referred to
herein, when issued under the Plan or otherwise, will by duly and validly
authorized, fully paid and non-assessable.
I express no opinion as to compliance with the securities or "blue sky" laws
of any state in which the Stock is proposed to be offered and sold or as to the
effect, if any, which non-compliance with such laws might have on the validity
of issuance of the Stock.
I consent to the filing of this opinion as an exhibit to any filing made
with the Securities and Exchange Commission or under any state or other
jurisdiction's securities act for the purpose of registering, qualifying or
establishing eligibility for an exemption from registration or qualification of
the Stock described in the Registration Statement in connection with the
offering described therein. Other than as provided in the preceding sentence,
this opinion (i) is addressed solely to you, (ii) may not be relied upon by any
other party, (iii) covers only matters of Nevada and federal law and nothing in
this opinion shall be deemed to imply any opinion related to the laws of any
other jurisdiction, (iv) may not be quoted or reproduced or delivered by you to
any other person, and (v) may not be relied upon for any other purpose
whatsoever. Nothing herein shall be deemed to relate to or constitute an opinion
concerning any matters not specifically set forth above.
The information set forth herein is as of the date of this letter. I
disclaim any undertaking to advise you of changes which may be brought to my
attention after the effective date of the Registration Statement.
Very truly yours,
/s/ Morgan F. Johnston
Morgan F. Johnston
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EXHIBIT 24.1
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EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors
Immune America, Inc.
We have issued our report dated March 26, 1996, on the balance sheets of Immune
America, Inc.. as of December 31, 1995 and 1994 and the related statements of
operations, changes in shareholder equity and cash flows for the three years
ended. December 31, 1995, 1994 and 1993. We consent to the incorporation by
reference of our report in the Registration Statement of Immune America, Inc. on
Form S-8.
CHESHIER & FULLER, INC., a professional corporation
December 12, 1996
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