As filed with the Securities and Exchange Commission on May 5, 1997
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 1933
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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<S> <C> <C>
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Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share (1) Price
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Common Stock 958,018 $.08 $76,641.44 $23.22
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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 May ___, 1997.
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,
1996;
2. The Company's Quarterly Reports on Form 10-QSB for the quarter ended March
31, 1997;
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 Rudolph L. Ennis,
Attorney, 16910 Dallas Parkway, Dallas, Texas 75248.
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 in certain specified circumstances. The
Company's by-laws provide for the indemnification of 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.
2
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Item 7. Exemption from Registration Claimed.
Does not apply.
Item 8. Exhibits.
5 Opinion of Rudolph L. Ennis, Esq. regarding legality
24.1 Consent of Cheshier & Fuller, Inc., a professional corporation, as
Accountants
24.2 Consent of Rudolph L. Ennis, Esq. (included in Exhibit 5)
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,
3
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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 (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 5th day of May, 1997.
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.
Signature Title Date
/s/ Glenn A. Little President and Chairman May 5, 1997
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Glenn A. Little
/s/ Kevin B. Halter, Jr. Director May 5, 1997
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Kevin B. Halter, Jr.
/s/ Dr. Elizabeth Huntley Vice President, Principal May 5, 1997
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Dr. Elizabeth Huntley
/s/ Matthew Blair Secretary and Director May 5, 1997
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Matthew Blair
5
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Exhibit Index
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Sequential
Exhibit No. Document Or Location Page Number
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5 Opinion of Rudolph L. Ennis, Esq. regarding
legality
24.1 Consent of Cheshier & Fuller, Inc.,
a professional corporation, as Accountants
24.2 Consent of Rudolph L. Ennis, Esq.
(included in Exhibit 5)
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EXHIBIT 5
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Rudolph L. Ennis
Attorney at Law
16910 Dallas Parkway, Suite 100
Dallas, Texas 75248
Phone: (972) 248-1922
Fax: (972) 248-4797
May 5, 1997
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
958,018 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 Agreement for Consulting Services dated March 3, 1997 between
Halter Capital Corporation and Immune America, Inc.
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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.
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, 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/ Rudolph L. Ennis
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Rudolph L. Ennis
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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.
/s/ CHESHIER & FULLER, INC.
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CHESHIER & FULLER, INC.
A Professional Corporation
May 5, 1997
