<PAGE> 1
As filed with the Securities and Exchange Commission on July 20, 1998
Registration No. _______________
==============================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
IMMUNOTECHNOLOGY CORPORATION
----------------------------------------------
(Name of Small Business Issuer in its Charter)
Delaware 84-1016435
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1661 Lakeview Circle, Ogden, Utah 84403
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (801) 399-3632
--------------
Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
N/A N/A
Securities to be registered under Section 12(g) of the Act:
Common Stock, par value $0.00001 per share
------------------------------------------
(Title of Class)
==============================================================================
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IMMUNOTECHNOLGY CORPORATION
FORM 10-SB
TABLE OF CONTENTS
PART 1 Page
Item 1. Description of Business ..................................... 3
Item 2. Management's Discussion and Analysis or Plan of Operation ... 9
Item 3. Description of Property...................................... 10
Item 4. Security Ownership of Certain Beneficial Owners
and Management.............................................. 10
Item 5. Directors, Executive Officers, Promoters
and Control Persons......................................... 11
Item 6. Executive Compensation....................................... 12
Item 7. Certain Relationships and Related Transactions............... 13
Item 8. Description of Securities.................................... 13
PART II
Item 1. Market Price of and Dividends on the Registrant's
Common Equity and Other Shareholder Matters................. 15
Item 2. Legal Proceedings............................................ 15
Item 3. Changes in and Disagreements with Accountants................ 15
Item 4. Recent Sales of Unregistered Securities...................... 16
Item 5. Indemnification of Directors and Officers.................... 16
PART F/S
Financial Statements......................................... 17
PART III
Item 1. Index to Exhibits............................................ 35
Signatures................................................... 36
<PAGE>
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PART I
ITEM 1. DESCRIPTION OF BUSINESS
Corporate History
- -----------------
(a) Initial Business Activities
---------------------------
The Registrant was incorporated on November 30, 1989, in the state of
Delaware. The Registrant's predecessor was LJC Corporation, a Utah
corporation, organized on November 8, 1984 ("LJC"). On October 7, 1989, LJC
acquired ImmunoTechnology Laboratories, Inc., a Colorado corporation ("ITL"),
by means of a stock-for-stock exchange with the shareholder of ITL. As a
result of this transaction, ITL became a wholly owned subsidiary of LJC. On
October 10, 1989, LJC changed its name to ImmunoTechnology Laboratories, Inc.
("ITL-UT").
At a special meeting of the shareholders of ITL-UT, the shareholders
approved a proposal to redomicile ITL-UT in the state of Delaware, by forming
a Delaware corporation and merging ITL-UT into the Delaware corporation, and
changing the its name to ImmunoTechnology Corporation. The merger was
effective on December 21, 1989. As a result of the merger, ITL-UT no longer
exists.
ITL was formed for the purpose of engaging in the business of operating a
medical test related laboratory. The Registrant's only business has been the
operation of ITL, whose operations were discontinued in 1992.
(b) Current Business Activities
----------------------------
Since discontinuing the operations of ITL, the Registrant has been
seeking potential business acquisition or opportunities to enter in an effort
to commence business operations. The Registrant does not propose to restrict
its search for a business opportunity to any particular industry or
geographical area and may, therefore, engage in essentially any business in
any industry. The Registrant has unrestricted discretion in seeking and
participating in a business opportunity, subject to the availability of such
opportunities, economic conditions, and other factors.
The selection of a business opportunity in which to participate is
complex and risky. Additionally, as the Registrant has only limited resources,
it may be difficult to find good opportunities. There can be no assurance
that the Registrant will be able to identify and acquire any business
opportunity which will ultimately prove to be beneficial to the Registrant and
its shareholders. The Registrant will select any potential business
opportunity based on management's business judgment.
The activities of the Registrant are subject to several significant risks
which arise primarily as a result of the fact that the Registrant has no
specific business and may acquire or participate in a business opportunity
based on the decision of management which potentially could act without the
consent, vote, or approval of the Registrant's shareholders. The risks faced
by the Registrant are further increased as a result of its lack of resources
and its inability to provide a prospective business opportunity with
significant capital.
<PAGE> 4
In November 1997, the directors determined that the Registrant should
become active in seeking potential operating businesses and business
opportunities with the intent to acquire or merge with such businesses. The
Registrant then began to consider and investigate potential business
opportunities. Because of the Registrant's current status having no assets
and no recent operating history, in the event the Registrant does successfully
acquire or merge with an operating business opportunity, it is likely that the
Registrant's present shareholders will experience substantial dilution and
there will be a probable change in control of the Registrant.
The Registrant is voluntarily filing its registration statement on Form
10SB in order to make information concerning itself more readily available to
the public. Management believes that being a reporting company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), could
provide a prospective merger or acquisition candidate with additional
information concerning the Registrant. In addition, management believes that
this might make the Registrant more attractive to an operating business
opportunity as a potential business combination candidate. As a result of
filing its registration statement, the Registrant is obligated to file with
the Commission certain interim and periodic reports including an annual report
containing audited financial statements. The Registrant intends to continue
to voluntarily file these periodic reports under the Exchange Act even if its
obligation to file such reports is suspended under applicable provisions of
the Exchange Act.
Any target acquisition or merger candidate of the Registrant will become
subject to the same reporting requirements as the Registrant upon consummation
of any such business combination. Thus, in the event that the Registrant
successfully completes an acquisition or merger with another operating
business, the resulting combined business must provide audited financial
statements for at least the two most recent fiscal years or, in the event that
the combined operating business has been in business less than two years,
audited financial statements will be required from the period of inception of
the target acquisition or merger candidate.
Sources of Business Opportunities
- ---------------------------------
The Registrant intends to use various sources in its search for potential
business opportunities including its officers and directors, consultants,
special advisors, securities broker-dealers, venture capitalists, members of
the financial community and others who may present management with unsolicited
proposals. Because of the Registrant's lack of capital, it may not be able to
retain on a fee basis professional firms specializing in business acquisitions
and reorganizations. Rather, the Registrant will most likely have to rely on
outside sources, not otherwise associated with the Registrant, that will
accept their compensation only after the Registrant has finalized a successful
acquisition or merger. To date, the Registrant has not engaged nor entered
into any discussions, negotiations, agreements nor understandings regarding
retention of any consultant to assist the Registrant in its search for
business opportunities, nor is management presently in a position to actively
seek or retain any prospective consultants for these purposes.
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The Registrant does not intend to restrict its search to any specific
kind of industry or business. The Registrant may investigate and ultimately
acquire a venture that is in its preliminary or development stage, is already
in operation, or in various stages of its corporate existence and development.
Management cannot predict at this time the status or nature of any venture in
which the Registrant may participate. A potential venture might need
additional capital or merely desire to have its shares publicly traded. The
most likely scenario for a possible business arrangement would involve the
acquisition of, or merger with, an operating business that does not need
additional capital, but which merely desires to establish a public trading
market for its shares. Management believes that the Registrant could provide a
potential public vehicle for a private entity interested in becoming a
publicly held corporation without the time and expense typically associated
with an initial public offering.
Evaluation
- ----------
Once the Registrant has identified a particular entity as a potential
acquisition or merger candidate, management will seek to determine whether
acquisition or merger is warranted or whether further investigation is
necessary. Such determination will generally be based on management's
knowledge and experience, or with the assistance of outside advisors and
consultants evaluating the preliminary information available to them.
Management may elect to engage outside independent consultants to perform
preliminary analysis of potential business opportunities. However, because of
the Registrant's lack of capital it may not have the necessary funds for a
complete and exhaustive investigation of any particular opportunity.
In evaluating such potential business opportunities, the Registrant will
consider, to the extent relevant to the specific opportunity, several factors
including potential benefits to the Registrant and its shareholders; working
capital, financial requirements and availability of additional financing;
history of operation, if any; nature of present and expected competition;
quality and experience of management; need for further research, development
or exploration; potential for growth and expansion; potential for profits; and
other factors deemed relevant to the specific opportunity.
Because the Registrant has not located or identified any specific
business opportunity as of the date hereof, there are certain unidentified
risks that cannot be adequately expressed prior to the identification of a
specific business opportunity. There can be no assurance following
consummation of any acquisition or merger that the business venture will
develop into a going concern or, if the business is already operating, that it
will continue to operate successfully. Many of the potential business
opportunities available to the Registrant may involve new and untested
products, processes or market strategies which may not ultimately prove
successful.
<PAGE>
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Form of Potential Acquisition or Merger
- ---------------------------------------
Presently, the Registrant cannot predict the manner in which it might
participate in a prospective business opportunity. Each separate potential
opportunity will be reviewed and, upon the basis of that review, a suitable
legal structure or method of participation will be chosen. The particular
manner in which the Registrant participates in a specific business opportunity
will depend upon the nature of that opportunity, the respective needs and
desires of the Registrant and management of the opportunity, and the relative
negotiating strength of the parties involved. Actual participation in a
business venture may take the form of an asset purchase, lease, joint venture,
license, partnership, stock purchase, reorganization, merger or consolidation.
The Registrant may act directly or indirectly through an interest in a
partnership, corporation, or other form of organization, however, the
Registrant does not intend to participate in opportunities through the
purchase of minority stock positions.
Because of the Registrant's current status and recent inactive status for
the prior eight years, and its concomitant lack of assets or relevant
operating history, it is likely that any potential merger or acquisition with
another operating business will require substantial dilution of the
Registrant's existing shareholders. There will probably be a change in
control of the Registrant, with the incoming owners of the targeted merger or
acquisition candidate taking over control of the Registrant. Management has
not established any guidelines as to the amount of control it will offer to
prospective business opportunity candidates, since this issue will depend to a
large degree on the economic strength and desirability of each candidate, and
corresponding relative bargaining power of the parties. However, management
will endeavor to negotiate the best possible terms for the benefit of the
Registrant's shareholders as the case arises.
Management does not have any plans to borrow funds to compensate any
persons, consultants, promoters, or affiliates in conjunction with its efforts
to find and acquire or merge with another business opportunity. Management
does not have any plans to borrow funds to pay compensation to any prospective
business opportunity, or shareholders, management, creditors, or other
potential parties to the acquisition or merger. In either case, it is
unlikely that the Registrant would be able to borrow significant funds for
such purposes from any conventional lending sources. In all probability, a
public sale of the Registrant's securities would also be unfeasible, and
management does not contemplate any form of new public offering at this time.
In the event that the Registrant does need to raise capital, it would
most likely have to rely on the private sale of its securities or loans from
its officers and directors. Such a private sale would be limited to persons
exempt under the Commission's Regulation D or other rule or provision for
exemption, if any applies. However, no private sales are contemplated by the
Registrant's management at this time. If a private sale of the Registrant's
securities is deemed appropriate in the future, management will endeavor to
acquire funds on the best terms available to the Registrant. However, there
can be no assurance that the Registrant will be able to obtain funding when
and if needed, or that such funding, if available, can be obtained on terms
reasonable or acceptable to the Registrant. The Registrant does not
anticipate using Regulation S promulgated under the Securities Act of 1933 to
raise any funds any time within the next year, subject only to its potential
applicability after consummation of a merger or acquisition.
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Although not presently anticipated by management, there is a remote
possibility that the Registrant might sell its securities to its management or
affiliates.
In the event of a successful acquisition or merger, a finder's fee, in
the form of cash or securities of the Registrant, may be paid to persons
instrumental in facilitating the transaction. The Registrant has not
established any criteria or limits for the determination of a finder's fee,
although most likely an appropriate finder's fee will be negotiated between
the parties, including the potential business opportunity candidate, based
upon economic considerations and reasonable value as estimated and mutually
agreed at that time. A finder's fee would only be payable upon completion of
the proposed acquisition or merger in the normal case, and management does not
contemplate any other arrangement at this time. Management has not actively
undertaken a search for, nor retention of, any finder's fee arrangement with
any person. It is possible that a potential merger or acquisition candidate
would have its own finder's fee arrangement, or other similar business
brokerage or investment banking arrangement, whereupon the terms may be
governed by a preexisting contract; in such case, the Registrant may be
limited in its ability to affect the terms of compensation, but most likely
the terms would be disclosed and subject to approval pursuant to submission of
the proposed transaction to a vote of the Registrant's shareholders.
Management cannot predict any other terms of a finder's fee arrangement at
this time. It would be unlikely that a finder's fee payable to an affiliate
of the Registrant would be proposed because of the potential conflict of
interest issues. If such a fee arrangement was proposed, independent
management and directors would negotiate the best terms available to the
Registrant so as not to compromise the fiduciary duties of the affiliate in
the proposed transaction, and the Registrant would require that the proposed
arrangement would be submitted to the shareholders for prior ratification in
an appropriate manner.
Management does not contemplate that the Registrant would acquire or
merge with a business entity in which any affiliates of the Registrant have an
interest. Any such related party transaction, however remote, would be
submitted for approval by an independent quorum of the Board of Directors and
the proposed transaction would be submitted to the shareholders for prior
ratification in an appropriate manner. None of the Registrant's managers,
directors, or other affiliated parties have had any contact, discussions, or
other understandings regarding any particular business opportunity at this
time, regardless of any potential conflict of interest issues. Accordingly,
the potential conflict of interest is merely a remote theoretical possibility
at this time.
Rights of Shareholders
- ----------------------
It is presently anticipated by management that prior to consummating a
possible acquisition or merger, the Registrant will seek to have the
transaction ratified by shareholders in the appropriate manner. Most likely,
this would require a general or special shareholder's meeting called for such
purpose. Section 228 of the Delaware Corporations Law provides that any
action which may be taken at any annual or special meeting of the
shareholders, may be taken without a meeting, without prior notice and without
a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holder of the outstanding stock 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.
<PAGE> 8
However, a shareholder's meeting is normally the most expeditious procedure,
wherein all shareholder's would be entitled to vote in person or by proxy. In
the notice of such a shareholder's meeting and proxy statement, the Registrant
will provide shareholders complete disclosure documentation concerning a
potential acquisition of merger candidate, including financial information
about the target and all material terms of the acquisition or merger
transaction.
Competition
- -----------
Because the Registrant has not identified any potential acquisition or
merger candidate, it is unable to evaluate the type and extent of its likely
competition. The Registrant is aware that there are several other public
companies with only nominal assets that are also searching for operating
businesses and other business opportunities as potential acquisition or merger
candidates. The Registrant will be in direct competition with these other
public companies in its search for business opportunities and, due to the
Registrant's lack of funds, it may be difficult to successfully compete with
these other companies.
Employees
- ---------
As of the date hereof, the Registrant does not have any employees and has
no plans for retaining employees until such time as the Registrant's business
warrants the expense, or until the Registrant successfully acquires or merges
with an operating business. The Registrant may find it necessary to
periodically hire part-time clerical help on an as-needed basis.
Facilities
- ----------
The Registrant is currently using as its principal place of business the
personal residence of its Vice President and Director located in Ogden, Utah.
Although the Registrant has no written agreement and pays no rent for the use
of this facility, it is contemplated that at such future time as an
acquisition or merger transaction may be completed, the Registrant will secure
commercial office space from which it will conduct its business. Until such
an acquisition or merger, the Registrant lacks any basis for determining the
kinds of office space or other facilities necessary for its future business.
The Registrant has no current plans to secure such commercial office space.
It is also possible that a merger or acquisition candidate would have adequate
existing facilities upon completion of such a transaction, and the
Registrant's principal offices may be transferred to such existing facilities.
<PAGE>
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Item 2. Management's Discussion and Analysis or Plan of Operation
Overview
- --------
The Registrant is considered a development stage company with no assets
or capital and with no operations or income since approximately 1992. The
costs and expenses associated with the preparation and filing of this
registration statement and other operations of the Registrant have been paid
for by shareholders of the Registrant, specifically Mark A. Scharmann (see
Item 4, Security Ownership of Certain Beneficial Owners and Management). It is
anticipated that the Registrant will require only nominal capital to maintain
the corporate viability of the Registrant and necessary funds will most likely
be provided by the Registrant's existing shareholders or its officers and
directors in the immediate future. However, unless the Registrant is able to
facilitate an acquisition of or merger with an operating business or is able
to obtain significant outside financing, there is substantial doubt about its
ability to continue as a going concern.
In the opinion of management, inflation has not and will not have a
material effect on the operations of the Registrant until such time as the
Registrant successfully completes an acquisition or merger. At that time,
management will evaluate the possible effects of inflation on the Registrant
as it relates to its business and operations following a successful
acquisition or merger.
Plan of Operation
- -----------------
During the next twelve months, the Registrant will actively seek out and
investigate possible business opportunities with the intent to acquire or
merge with one or more business ventures. In its search for business
opportunities, management will follow the procedures outlined in Item 1 above.
Because the Registrant lacks funds, it may be necessary for the officers and
directors to either advance funds to the Registrant or to accrue expenses
until such time as a successful business consolidation can be made. Management
intends to hold expenses to a minimum and to obtain services on a contingency
basis when possible. The Registrant's directors may receive compensation for
services provided to the Company until such time as an acquisition or merger
can be accomplished. However, if the Registrant engages outside advisors or
consultants in its search for business opportunities, it may be necessary for
the Registrant to attempt to raise additional funds. As of the date hereof,
the Registrant has not made any arrangements or definitive agreements to use
outside advisors or consultants or to raise any capital.
In the event the Registrant does need to raise capital most likely the
only method available to the Registrant would be the private sale of its
securities. It is unlikely that it could make a public sale of securities or
be able to borrow any significant sum from either a commercial or private
lender. There can be no assurance that the Registrant will be able to obtain
additional funding when and if needed, or that such funding, if available, can
be obtained on terms acceptable to the Registrant.
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The Registrant does not intend to use any employees, with the possible
exception of part-time clerical assistance on an as-needed basis. Outside
advisors or consultants will be used only if they can be obtained for minimal
cost or on a deferred payment basis. Management is confident that it will be
able to operate in this manner and to continue its search for business
opportunities during the next twelve months.
Item 3. Description of Property
The information required by this Item 3 is not applicable to this Form
10SB due to the fact that the Registrant does not own or control any material
property.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following tables sets forth the number of shares of the Registrant's
Common Stock, par value $0.00001, held by each person who is believed to be
the beneficial owner of 5% or more of the 1,157,996 shares of the Registrant's
common stock outstanding at June 30, 1998, based on the Registrant's transfer
agent's list, and the names and number of shares held by each of the
Registrant's officers and directors and by all officers and directors as a
group.
Title of Name and Address Amount and Nature of Percent
Class Of Beneficial Owner Beneficial Ownership of Class
- -------- ------------------- --------------------- --------
Common Mark A. Ledoux 44,872 Direct 12.4
1185 Linda Vista Drive 143,592 Indirect (1) 3.9
San Marcos, CA 92069
Common Gerald M Haase 77,539 Direct 6.7
5655 S. Grape Court
Greenwood Village, CO 80121
Common Ronald J. Roscioli 189,541 Direct 16.4
7800 South Elati #112
Littleton, CO 80120
Common Mark A. Scharmann 86,850 Indirect (2) 7.5
1661 Lakeview Circle
Ogden, UT 84403
Common Joseph S. Ventura 189,541 Direct 16.4
10542 Ravenscroft Drive
Dallas, TX 75230
Common John A. Wise 189,541 Direct 16.4
7800 South Elati #112
Littleton, CO 80120
[Footnotes appear on following page]<PAGE>
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Officers, Directors and Nominees
Common John A. Wise, President
and Director -------See Above-------
Common Mark A. Scharmann, Vice
President and Director -------See Above-------
Common David Knudson, Secretary/
Treasurer and Director 2,000 Direct 0.2
Common Gerald M Haase, Director -------See Above-------
All Officers, Directors, and
Nominees as a Group (4 Persons) 269,080 Direct 23.2
86,850 Indirect 7.5
------- ----
355,930 30.7
======= ====
- --------------------------------
(1) Shares beneficially held of record by Natural Alternatives, of which
Mr. Ledoux is the controlling principal.
(2) Shares beneficially held of record by Troika Capital Investment, of which
Mr. Scharmann is the principal owner and shareholder.
Item 5. Directors, Executive Officers, Promoters and Control Persons
The names of the Registrant's executive officers and directors and the
positions held by each of them are set forth below:
Name Position
- ---- --------
John A. Wise President and Director
Mark A. Scharmann Vice President and Director
David Knudson Secretary/Treasurer and Director
Gerald M Haase Director
The term of office of each director is one year and until his successor
is elected at the Registrant's annual shareholders' meeting and is qualified,
subject to removal by the shareholders. The term of office for each officer
is for one year and until a successor is elected at the annual meeting of the
board of directors and is qualified, subject to removal by the board of
directors.
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Biographical Information
Set forth below is certain biographical information with respect to each
of the Registrant's officers and directors.
John A. Wise, age 58, has been director of the Company since October
1989. Since 1991, Mr. Wise has been the Vice-President of Research and
Development at Natural Alternatives International, Inc. [NASDAQ: NAII], San
Marcos, California, a biotechnology company that formulates and produces
vitamins and related nutritional supplements.
Mark A. Scharmann, age 39, has been vice-president and a director of the
Company since February 1997. Since 1979, Mr. Scharmann has been the principal
owner of Troika Capital, Inc., Ogden, Utah, a financial consulting company.
David Knudson, age 38, has been the secretary/treasurer of the Company
since February 1997. From September 1994 to June 1996, Mr. Knudson was an
adjunct professor of Computer Information Systems at Weber State University,
Ogden, Utah. Since 1985, Mr. Knudson has been the principal of Twelve O Eight,
a business and computer consulting company, located in Layton, Utah.
Gerald M. Haase, age 51, has been a director of the Company since
November 1989. Since 1979, Gerald M. Haase, has been a surgeon at Denver
Pediatric Surgeons, P.C., Denver, Colorado.
ITEM 6. EXECUTIVE COMPENSATION
The Registrant has not had a bonus, profit sharing, or deferred
compensation plan for the benefit of its employees, officers or directors. The
Registrant has not paid any salaries or other compensation to its officers,
directors or employees for the years ended June 30, 1997, 1996 and 1995, nor
at any time during 1997, 1996 or 1995. Further, the Registrant has not entered
into an employment agreement with any of its officers, directors or any other
persons and no such agreements are anticipated in the immediate future. It is
intended that the Registrant's directors may be compensated for services
provided to the Company until such time as an acquisition or merger can be
accomplished. As of the date hereof, no person has accrued any compensation
from the Registrant.
The following tables set forth certain summary information concerning the
compensation paid or accrued for each of the Registrant's last three completed
fiscal years to the Registrant's or its principal subsidiaries chief executive
officer and each of its other executive officers that received compensation in
excess of $100,000 during such period (as determined at June 30, 1997, the end
of the Registrant's last completed fiscal year):
<PAGE>
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SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long Term Compensation
----------------------
Annual Compensation Awards Payouts
Other Restricted
Name and Annual Stock Options LTIP All other
Principal Position Year Salary Bonus($) Compensation Awards /SARs Payout Compensation
- ------------------ ---- ------ -------- ------------ ------ ------- ------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
John A. Wise 1997 $ -0- -0- -0- -0- -0- -0- -0-
President and CEO 1996 $ -0- -0- -0- -0- -0- -0- -0-
1995 $ -0- -0- -0- -0- -0- -0- -0-
</TABLE>
Options/SAR Grants in Last Fiscal Year
None.
Bonuses and Deferred Compensation
None.
Compensation Pursuant to Plans
None.
Pension Table
Not Applicable.
Other Compensation
None.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Mark A. Scharmann, an officer and directors of the Company has advanced
money to the Company during the nine months ending March 31, 1998 and 1997.
The advances are bearing interest at a rate of 10% and have no maturity date.
The balance of advances amounted to $32,015 and $100 at March 31, 1998 and
March 31, 1997, respectively.
ITEM 8. DESCRIPTION OF SECURITIES
General
- -------
The Registrant is authorized to issue fifty five million shares of
capital stock, consisting of 50,000,000 shares of common stock, par value
$0.00001 per share (the "Common Stock") and 5,000,000 shares of preferred
stock, par value $0.00001 per share (the "Preferred Stock"). There are
1,157,996 shares of Common Stock and no shares of Preferred Stock issued and
outstanding as of June 30, 1998.
<PAGE> 14
(a) Common Stock
------------
The holders of Common Stock are entitled to one vote per share on each
matter submitted to a vote at any meeting of shareholders. Shares of Common
Stock do not carry cumulative voting rights and, therefore, a majority of the
shares of outstanding Common Stock will be able to elect the entire board of
directors and, if they do so, minority shareholders would not be able to elect
any persons to the board of directors. The Registrant's bylaws provide that a
majority of the issued and outstanding shares of the Registrant constitutes a
quorum for shareholders' meetings, except with respect to certain matters for
which a greater percentage quorum is required by statute or the bylaws.
Shareholders of the Registrant have no preemptive rights to acquire
additional shares of Common Stock or other securities. The Common Stock is
not subject to redemption and carries no subscription or conversion rights.
In the event of liquidation of the Registrant, the shares of Common Stock are
entitled to share equally in corporate assets after satisfaction of all
liabilities.
Holders of Common Stock are entitled to receive such dividends as the
board of directors may from time to time declare out of funds legally
available for the payment of dividends. The Registrant seeks growth and
expansion of its business through the reinvestment of profits, if any, and
does not anticipate that it will pay dividends in the foreseeable future
(b) Preferred Stock
---------------
The Registrant is authorized to issue up to 5,000,000 shares of Preferred
Stock having a par value of $0.00001 per share. All shares of Preferred Stock
shall be issued for such consideration or considerations as the Board of
Directors may from time to time determine. At June 30, 1998, the Registrant
had no shares of Preferred Stock issued and outstanding.
The authority to issue the Preferred Stock is vested in the Registrant's
Board of Directors, which has authority to fix and determine the powers,
qualifications, limitations, restrictions, designations, rights, preferences,
or other variations of each class or series within each class which the
Registrant is authorized to issue. The above described authority of the Board
of Directors to fix and determine the rights, preferences and privileges of
the Preferred Stock may be exercised by corporate resolution from time to time
as the Board of Directors sees fit.
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<PAGE> 15
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity and
Other Shareholder Matters
The Registrant's Common Stock is quoted on the National Association of
Securities Dealers Electronic Bulletin Board under the symbol "ITRX." Set
forth below are the high and low bid prices for the Registrant's Common Stock
for the last three years. Although the Common Stock is quoted on the
Electronic Bulletin Board it has traded sporadically with low volume.
Consequently, the information provided below may not be indicative of the
Common Stock price under different conditions. All prices listed herein
reflect inter-dealer prices, without retail mark-up, mark-down or commissions
and may not represent actual transactions.
Quarter Ended High Bid Low Bid
- ------------- -------- -------
March 1996 N/A N/A
June 1996 N/A N/A
September 1996 N/A N/A
December 1996 N/A N/A
March 1997 N/A N/A
June 1997 N/A N/A
September 1997 $2.50 $1.80
December 1997 $2.50 $1.80
March 1998* $2.50 $0.31
June 1998* $0.25 $0.25
* The per share price gives effect to a 10 for 1 reverse split of the issued
and outstanding shares of Common Stock effective January 26, 1998.
At June 30, 1998, the bid price for the Common Stock was $0.25.
Since its inception, the Registrant has not paid any dividends on its
Common Stock, and the Registrant does not anticipate that it will pay
dividends in the foreseeable future.
As of June 30,1998, there were 1,157,996 shares of common stock
outstanding held by approximately 60 active holders of record, including
broker-dealers and clearing corporations holding shares on behalf of their
customers, as reported by the Registrant's transfer agent.
ITEM 2. LEGAL PROCEEDINGS
The Company is not a party to any pending legal proceedings and no such
action by or against it, to the best of its knowledge, has been threatened.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
The Registrant has not changed nor had any disagreements with its
independent certified accountants.
<PAGE> 16
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES
The Registrant has not issued any unregistered securities within the
past three years.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware Corporation Law provides in relevant parts as
follows:
(1) A corporation shall have power to 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 (other than an action by or in the right of
the corporation) by reason of the fact that he 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, 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 in connection with such
action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or on
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to 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 feet that he 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, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only
to the extent that the court in which such action or suit was brought shall
determine on application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in 1) or (2) of this subsection, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection therewith.
<PAGE>
<PAGE> 17
(4) The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such
a person.
The foregoing discussion of indemnification merely summarizes certain
aspects of indemnification provisions and is limited by reference to the above
discussed sections of the Delaware Corporation Law.
The Registrant's certificate of incorporation and bylaws provide that the
Registrant "may indemnify" to the full extent of its power to do so, all
directors, officers, employees, and/or agents. It is anticipated that the
Registrant will indemnify its officers and directors to the full extent
permitted by the above-quoted statute.
Insofar as indemnification by the Registrant for liabilities arising
under the Securities Act may be permitted to officers and directors of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant
is aware that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
PART F/S
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Company's unaudited balance sheets as of March 31, 1998 and 1997; the
related unaudited statements of operations and accumulated deficit, and cash
flows for the nine month periods then ended have been prepared in accordance
with generally accepted accounting principles and are attached hereto and
incorporated herein by this reference.
The Company's financial statements for the years ended June 30, 1997,
1996, 1995, and 1994, have been examined to the extentindicated in their
reports by Rose, Snyder & Jacobs, a corporation of certified public
accountants, and have been prepared in accordance with generally accepted
accounting principles and are attached hereto and incorporated herein by this
reference.<PAGE>
<PAGE> 18
ROSE, SNYDER & JACOBS
A CORPORATION OF CERTIFIED PUBLIC ACCOUNTANTS
15821 Ventura Boulevard, Suite 490
Encino, California 91436
ACCOUNTANT'S COMPILATION REPORT
To the Board of Directors of
ImmunoTechnology Corporation
San Marcos, California
We have compiled the accompanying balance sheets of ImmunoTechnology
Corporation (a Delaware corporation) as of March 31, 1998 and 1997, and the
related statements of operations and accumulated deficit, and cash flows for
the nine months then ended, in accordance with Statements on Standards for
Accounting and Review Services issued by the American Institute of Certified
Accountants.
A compilation is limited to presenting in the form of financial
statements information that is the representation of management. We have not
audited or reviewed the accompanying financial statement and, accordingly, do
not express an opinion or any other form of assurance on them.
/S/ Rose, Snyder & Jacobs
Rose, Snyder & Jacobs
A Corporation of Certified Public Accountants
Encino, California
June 8, 1998
<PAGE>
<PAGE> 19
IMMUNOTECHNOLOGY CORPORATION
BALANCE SHEETS
MARCH 31, 1998 AND 1997
ASSETS
1998 1997
------------ ------------
CURRENT ASSETS
Cash $ 952 $ 93
------------ ------------
TOTAL ASSETS $ 952 $ 93
============ ============
LIABILITIES AND STOCKHOLDERS' DEFICIT
CURRENT LIABILITIES
Accrued expenses $ 18,605 $ 17,000
------------ ------------
TOTAL CURRENT LIABILITIES 18,605 17,000
------------ ------------
LONG TERM DEBT
Advances from officer 32,015 100
Advances from individuals 7,500 -0-
------------ ------------
TOTAL LONG TERM DEBT 39,515 100
------------ ------------
STOCKHOLDERS' DEFICIT
Preferred stock, par value
$.00001 per share,
Authorized - 5,000,000 shares
Issued - none
Common Stock, par value
$0.00001 per share
Authorized - 50,000,000 shares
Outstanding - 1,587,996 11,580 11,580
Paid in capital 122,752 122,752
Accumulated deficit (191,500) (151,339)
------------ ------------
TOTAL STOCKHOLDERS' DEFICIT (57,168) (17,007)
------------ ------------
TOTAL LIABILITIES AND
STOCKHOLDERS' DEFICIT $ 952 $ 93
============ ============
Prepared without audit.
See accountants' compilation report and
notes to financial statements.
<PAGE> 20
IMMUNOTECHNOLOGY CORPORATION
STATEMENTS OF OPERATIONS
AND ACCUMULATED DEFICIT
FOR THE NINE MONTHS ENDED
MARCH 31, 1998 AND 1997
1998 1997
------------ ------------
REVENUE $ -0- $ -0-
COST OF REVENUE -0- -0-
------------ ------------
GROSS PROFIT -0- -0-
OPERATING EXPENSES
Professional fees 12,269
Taxes and licenses 50
Bank fees and service charges 1,254 7
Travel 6,031
Office expense 3,612
Interest expense 1,891
------------ ------------
TOTAL OPERATING EXPENSES 25,107 7
------------ ------------
NET LOSS (25,107) (7)
ACCUMULATED DEFICIT, BEGINNING (166,393) (151,332)
------------ ------------
ACCUMULATED DEFICIT, END $ (191,500) $ (151,339)
============ ============
BASIC LOSS PER COMMON SHARE $ (.02) $ .00
============ ============
WEIGHTED AVERAGE NUMBER OF COMMON SHARES 1,157,996 1,157,996
============ ===========
Prepared without audit.
See accountants' compilation report and
notes to financial statements.<PAGE>
<PAGE> 21
IMMUNOTECHNOLOGY CORPORATION
STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED
MARCH 31, 1998 AND 1997
1998 1997
------------ ------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (25,107) $ (7)
Adjustment to reconcile net loss to net cash
used in operating activities
Decreases in accrued expenses (4,911)
------------ ------------
NET CASH USED IN OPERATING ACTIVITIES (30,018) (7)
------------ ------------
CASH FLOWS FROM INVESTING ACTIVITIES -0- -0-
------------ ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Advances from officer 25,465 100
Advances from individuals 5,000
------------ ------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 30,465 100
------------ ------------
NET INCREASE IN CASH 477 93
CASH AT BEGINNING 505 -0-
------------ ------------
CASH AT END $ 952 $ 93
============ ============
Supplementary disclosures:
Interest paid $ 286 $ -0-
============ ============
Income taxes paid $ -0- $ -0-
============= ============
Prepared without audit.
See accountants' compilation report and
notes to financial statements.<PAGE>
<PAGE> 22
IMMUNOTECHNOLOGY CORPORATION
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 1998 AND 1997
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization
------------
ImmunoTechnology Corporation was incorporated on November 30, 1989
under the laws of the State of Delaware. ImmunoTechnology Corporation
operated a medical test laboratory until 1992, when it ceased
operations. Presently, the Company has no operations.
Cash Flows
----------
Cash consists of balances in a demand account at a bank.
Estimates
---------
Generally accepted accounting principles require that the financial
statements include estimates by management in the valuation of certain
assets and liabilities. Management uses its historical records and
knowledge of its business in making these estimates.
2. INCOME TAXES
No income tax benefit was recorded by the Company. Realization of
benefit is contingent upon future taxable earnings, whose likelihood is
not determinable at March 31, 1998.
The Company has loss carryforwards available to offset future taxable
income.
3. ADVANCES FROM INDIVIDUALS
Advances from individuals bear interest at 10%, and have no maturity
date.
4. COMMON STOCK
In January 1998, the company recorded a reverse split on a 1-for-10
basis of its outstanding shares. The total of 11,579,960 outstanding
shares of common stock at March 31, 1997 is now 1,157,996 at March 31,
1998. Accordingly, weighted average share and per share amounts for the
nine months ended March 31, 1997 have been restated to reflect the
reverse stock split.
5. RELATED PARTY TRANSACTIONS
An officer of the Company advanced money to the Company during the
nine months ending March 31, 1998 and 1997. The advances are bearing
interest at a rate of 10% and have no maturity date. The balance of
advances from an officer amounted to $32,015 and $100 at March 31, 1998
and March 31, 1997, respectively.
Prepared without audit.
See accountants' compilation report.
<PAGE> 23
ROSE, SNYDER & JACOBS, A CORPORATION OF CERTIFIED PUBLIC ACCOUNTANTS
3800 West Alameda Avenue, Suite 1700, Burbank, California 91505
INDEPENDENT AUDITORS' REPORT
To the Stockholders of
ImmunoTechnology Corporation
San Marcos, California
We have audited the accompanying balance sheet of ImmunoTechnology
Corporation (a Delaware corporation) as of June 30, 1997, and the related
statements of operations, stockholders' deficit, and cash flows for the year
then ended. These financial statements are the responsibility of the
Corporation's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of ImmunoTechnology
Corporation as of June 30, 1997, and the results of its operations and its
cash flows for the year then ended, in conformity with generally accepted
accounting principles.
Rose, Snyder & Jacobs
A Corporation of Certified Public Accountants
Burbank, California
July 29, 1997
<PAGE>
<PAGE> 24
IMMUNOTECHNOLOGY CORPORATION
BALANCE SHEET
JUNE 30, 1997
ASSETS
CURRENT ASSETS $ 505
Cash ------------
TOTAL ASSETS $ 505
============
LIABILITIES AND STOCKHOLDERS' DEFICIT
CURRENT LIABILITIES
Accrued expenses $ 23,516
Advance from an individual 2,500
------------
TOTAL CURRENT LIABILITIES 26,016
------------
LONG TERM DEBT
Advances from officer 6,550
------------
STOCKHOLDERS' DEFICIT
Preferred stock, par value
$.001 per share
Authorized - 5,000,000 shares
Issued - none
Common stock, par value
$0.001 per share
Authorized - 50,000,000 shares
Outstanding - 11,580,000 11,580
Paid in capital 122,752
Accumulated deficit (166,393)
------------
TOTAL STOCKHOLDERS' DEFICIT (32,061)
------------
TOTAL LIABILITIES AND
STOCKHOLDERS' DEFICIT $ 505
============
See independent auditors' report and
notes to financial statements.
<PAGE> 25
IMMUNOTECHNOLOGY CORPORATION
STATEMENT OF OPERATIONS
FOR THE YEAR ENDED JUNE 30, 1997
REVENUE $ -0-
COST OF REVENUE -0-
------------
GROSS PROFIT -0-
OPERATING EXPENSES
Professional fees 13,703
Taxes and licenses 1,288
Bank fees 70
------------
TOTAL OPERATING EXPENSES 15,061
------------
NET LOSS $ (15,061)
============
BASIC LOSS PER COMMON SHARE $ .00
============
See independent auditors' report and
notes to financial statements.
<PAGE> 26
IMMUNOTECHNOLOGY CORPORATION
STATEMENT OF STOCKHOLDERS' DEFICIT
FOR THE YEAR ENDED JUNE 30, 1997
Common Additional Retained
Stock Paid-in Earnings
Par Value Capital Total Total
---------- ---------- ---------- ----------
Balance at
July 1, 1996 $ 11,580 $ 122,752 $ (151,332) $ (17,000)
Net loss (15,061) (15,061)
---------- ---------- ---------- ----------
Balance at
June 30, 1997 $ 11,580 $ 122,752 $ (166,393) $ (32,061)
========== ========== ========== ==========
See independent auditors' report and
notes to financial statements.
<PAGE> 27
IMMUNOTECHNOLOGY CORPORATION
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED JUNE 30, 1997
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (15,061)
Adjustment to reconcile net loss to net cash
used in operating activities
Increase in accrued expenses 6,516
-----------
NET CASH USED IN OPERATING ACTIVITIES (8,545)
-----------
CASH FLOWS FROM INVESTING ACTIVITIES -0-
-----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Advances from officer 6,550
Advances from an individual 2,500
-----------
NET CASH PROVIDED BY FINANCING ACTIVITIES 9,050
-----------
NET INCREASE IN CASH 505
CASH AT BEGINNING OF YEAR -0-
-----------
CASH AT END OF YEAR $ 505
===========
Supplementary disclosure:
Interest paid $ -0-
===========
Income Taxes paid $ -0-
===========
See independent auditors' report and
notes to financial statements.
<PAGE> 28
IMMUNOTECHNOLOGY CORPORATION
NOTES TO FINANCIAL STATEMENTS
JUNE 30, 1997
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization
- ------------
Immunotechnology Corporation was incorporated on November 30, 1989 under the
laws of the state of Delaware. ImmunoTechnology Corporation operated a
medical test laboratory until 1992, when it ceased operations. Presently, the
Company has no operations.
Cash Flows
- ----------
Cash consists of balances in a demand account at a bank.
2. INCOME TAXES
The Company has loss carryforwards available to offset future taxable income.
3. RELATED PARTY TRANSACTIONS
An officer of the Company advanced money to the Company during the year ending
June 30, 1997. The advances are bearing interest at a rate of 10% and have no
maturity date. At June 30, 1997, the balance of advances from an officer
amounted to $6,550.
See independent auditors' report.
<PAGE> 29
ROSE, SNYDER & JACOBS, A CORPORATION OF CERTIFIED PUBLIC ACCOUNTANTS
3800 West Alameda Avenue, Suite 1700, Burbank, California 91505
INDEPENDENT AUDITORS' REPORT
To the Stockholders of
ImmunoTechnology Corporation
San Marcos, California
We have audited the accompanying balance sheets of ImmunoTechnology
Corporation (a Delaware corporation) as of June 30, 1996, 1995 and 1994, and
the related statements of operations, stockholders' deficit, and cash flows
for the years then ended. These financial statements are the responsibility of
the Corporation's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and preform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of ImmunoTechnology
Corporation as of June 30, 1996, 1995 and 1994, and the results of its
operations and its cash flows for the years then ended, in conformity with
generally accepted accounting principles.
Rose, Snyder & Jacobs
A Corporation of Certified Public Accountants
Burbank, California
September 18, 1996
<PAGE>
<PAGE> 30
IMMUNOTECHNOLOGY CORPORATION
BALANCE SHEETS
JUNE 30, 1996, 1995 and 1994
ASSETS
1996 1995 1994
------------ ------------ ------------
CURRENT ASSETS
Cash $ -0- $ -0- $ -0-
============ ============ ============
LIABILITIES AND STOCKHOLDERS' DEFICIT
1996 1995 1994
------------ ------------ ------------
CURRENT LIABILITIES
Accrued expenses $ 17,000 $ 17,000 $ 17,000
------------ ------------ ------------
TOTAL CURRENT LIABILITIES 17,000 17,000 17,000
------------ ------------ ------------
STOCKHOLDERS' DEFICIT
Preferred stock, par value
$.001 per share
Authorized - 5,000,000 shares
Issued - none
Common stock, par value
$.001 per share
Authorized - 50,000,000 shares
Outstanding - 11,580,000 11,580 11,580 11,580
Paid in capital 122,752 122,752 122,752
Accumulated deficit (151,332) (151,332) (151,332)
------------ ------------ ------------
TOTAL STOCKHOLDERS' DEFICIT (17,000) (17,000) (17,000)
------------ ------------ ------------
TOTAL LIABILITIES AND
STOCKHOLDERS' DEFICIT $ -0- $ -0- $ -0-
============ ============ ============
See independent auditors' report and
notes to financial statements.<PAGE>
<PAGE> 31
IMMUNOTECHNOLOGY CORPORATION
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED JUNE 30, 1996, 1995 AND 1994
1996 1995 1994
------------ ------------ ------------
REVENUE $ -0- $ -0- $ -0-
COST OF REVENUES -0- -0- -0-
------------ ------------ ------------
GROSS PROFIT -0- -0- -0-
OPERATING EXPENSES -0- -0- -0-
------------ ------------ ------------
NET INCOME -0- -0- -0-
============ ============ ============
NET INCOME PER COMMON SHARE $ .00 $ .00 $ .00
============ ============ ============
See independent auditors' report and
notes to financial statements.
<PAGE> 32
IMMUNOTECHNOLOGY CORPORATION
STATEMENTS OF STOCKHOLDERS' DEFICIT
FOR THE YEARS ENDED JUNE 30, 1996, 1995 AND 1994
Common Additional Retained
Stock Paid-in Earnings
Par Value Capital Total Total
---------- ---------- ---------- ----------
Balance at
June 30, 1993 $ 11,580 $ 122,752 $ (151,332) $ (17,000)
Net income
---------- ---------- ---------- ----------
Balance at
June 30, 1994 $ 11,580 $ 122,752 $ (151,332) $ (17,000)
Net income
---------- ---------- ---------- ----------
Balance at
June 30, 1995 $ 11,580 $ 122,752 $ (151,332) $ (17,000)
Net income
---------- ---------- ---------- ----------
Balance at
June 30, 1996 $ 11,580 $ 122,752 $ (151,332) $ (17,000)
========== ========== ========== ==========
See independent auditors' report and
notes to financial statements.
<PAGE> 33
IMMUNOTECHNOLOGY CORPORATION
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED JUNE 30, 1996, 1995 AND 1994
1996 1995 1994
------------ ------------ ------------
CASH FLOWS FROM OPERATING $ -0- $ -0- $ -0-
ACTIVITIES
CASH FLOWS FROM INVESTING -0- -0- -0-
ACTIVITIES
CASH FLOWS FROM FINANCING -0- -0- -0-
ACTIVITIES ------------ ------------ ------------
NET INCREASE IN CASH -0- -0- -0-
CASH AT BEGINNING OF YEAR -0- -0- -0-
------------ ------------ ------------
CASH AT END OF YEAR -0- -0- -0-
============ ============ ============
See independent auditors' report and
notes to financial statements.
<PAGE>
<PAGE> 34
IMMUNOTECHNOLOGY CORPORATION
NOTES TO FINANCIAL STATEMENTS
JUNE 30, 1996, 1995 and 1994
1. ORGANIZATION
Immunotechnology Corporation was incorporated on November 30, 1989 under the
laws of the state of Delaware. ImmunoTechnology Corporation operated a
medical test laboratory until 1992, when it ceased operations. Presently, the
Company has no operations.
2. INCOME TAXES
The Company has loss carryforwards available to offset future taxable income.
See independent auditors' report
<PAGE> 35
PART III
ITEM 1. INDEX TO EXHIBITS
Copies of the following documents are included as exhibits to this Form
10-SB pursuant to item 601 of regulation S-B.
SEC
Exhibit Reference
No. No. Title of Document
- ------- --------- -----------------
1 3 Articles of Incorporation of the Registrant and related
Amendments
2 3 Bylaws of the Registrant
3 4 Specimen Stock Certificate
4 27 Financial Data Schedule
<PAGE>
<PAGE> 36
In accordance with Section 12 of the Securities Exchange Act of 1934,
the Registrant caused this registration statement to be signed on its behalf
by the undersigned, thereunder duly authorized.
IMMUNOTECHNOLOGY CORPORATION
By: /S/ John A. Wise, President
In accordance with Section 12 of the Securities Exchange Act of 1934,
the Registrant caused this registration statement to be signed on its behalf
by the undersigned in the capacities and on the dates stated.
Signature Title Date
- --------- ----- ----
/S/ John A. Wise President, Director July 18, 1998
/S/ Mark A. Scharmann Vice President, Director July 18, 1998
/S/ David Knudson Secretary/Treasurer/Director July 18, 1998
/S/ Gerald M Haase Director July 18, 1998
EXHIBIT 1
<PAGE> 1 STATE OF DELAWARE
[CREST]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF IMMUNOTECHNOLOGY CORPORATION FILED IN THIS OFFICE ON THE
THIRTIETH DAY OF NOVEMBER, A.D. 1989, AT 9 O'CLOCK A.M.
[SEAL OF THE DEPARTMENT OF STATE
OFFICE OF THE SECRETARY OF STATE
STATE OF DELAWARE] /S/Michael Harkin, Secretary of State
Authentication: 12433830
893190166 Date: 11/30/1989
<PAGE>
<PAGE> 2
CERTIFICATE OF INCORPORATION
OF
ImmunoTechnology Corporation
(A Delaware Corporation)
FIRST. The name of this corporation is
ImmunoTechnology Corporation
SECOND. The Corporation's Registered Office in the State of Delaware is
located at 3151 Summerset Road, City of Wilmington, County of New Castle,
Delaware 19801. The Corporation's Registered Agent at this address is Harvard
Business Services, Inc.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH. The name and mailing address of the incorporator is:
Name Mailing Address
---- ---------------
John D. Brasher, Jr. 5325 South Valentia Way, Suite 100
Englewood, Colorado 80111
Upon the filing of this Certificate of Incorporation the powers of the
incorporator shall terminate. The names and addresses of the person or persons
who are to serve as directors until the first annual meeting of shareholders
or until their successors are elected are:
Name Mailing Address
---- ---------------
John A. Wise 7800 South Elati, Suite 112
Littleton, Colorado 80120
Joseph S. Ventura 10542 Ravenscroft Drive
Dallas, Texas 75230
Gerald M. Haase 5 East Belleview Drive
Littleton, Colorado 80121
(CAPITAL STOCK)
FIFTH. The aggregate number of shares of capital stock of all classes which
the Corporation shall have authority to issue is FIFTY FIVE MILLION
(55,000,000), of which FIFTY MILLION (50,000,000) shares having a par value of
$.00001 per share shall be of a class designated "Common Stock" and FIVE
MILLION (5,000,000) shares having a par value of $.00001 per share shall be of
a class designated "Preferred Stock." All shares of the Corporation shall be
issued for such consideration or considerations as the Board of Directors may
from time to time determine.
The designations, voting powers, preferences, optional or other special rights
and qualifications, limitations, or restrictions of the above classes of stock
shall be as follows:
<PAGE>
<PAGE> 3
I. PREFERRED STOCK.
(a) Issuance in Series. Shares of Preferred Stock may be issued in one or more
series at such time or times as the Board of Directors may determine. All
shares of any one series shall be of equal rank and identical in all respects.
(b) Authority of Board for Issuance. Authority is hereby expressly granted to
the Board of Directors to fix from time to time, by resolution or resolutions
providing for the issuance of any series of Preferred Stock, the designation
of such series and the powers, preferences and rights of the shares of such
series, and the qualifications, limitations or restrictions thereof, including
the following:
(1) The distinctive designation and number of shares comprising such series,
which number may (except where otherwise provided by the Board of Directors in
creating such series) be increased or decreased (but not below the number of
shares then outstanding) from time to time by action of the Board of
Directors;
(2) The rate of dividend, if any, on the shares of that series, whether
dividends shall be cumulative and, if so, from which date or dates, the
relative rights of priority, if any, of payment of dividends on shares of that
series over shares of any other series;
(3) Whether the shares of that series shall be redeemable at the option of the
Corporation or at the option of the holder of shares of that series and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and
different redemption dates;
(4) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series and, if so, terms and amounts payable into
such sinking fund;
(5) The rights to which the holders of the shares or series shall be entitled
in the event of voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up the Corporation, relative rights of
priority; if any, of the shares of that series;
(6) Whether the shares of that series shall be converted into or exchangeable
for shares of stock of any class other series of Preferred Stock and, if so,
the terms and conditions of such conversion or exchange, including the terms
of adjusting the rates of conversion or exchange in the event of a stock
split, stock dividend, combination of shares or such other event;
(7) Whether the issuance of any additional shares or series, or of any shares
of any other series, shall be subject to restrictions as to issuance, or as to
the powers, preferences and rights of any such other series;
(8) Any other preferences, privileges and powers relative, participating,
optional or other special rights, qualifications, limitations or restrictions
of such series the Board of Directors may deem advisable and as shall not be
inconsistent with the provisions of the Corporation's Charter as from time to
time amended, and to the full extent hereinafter as permitted by the laws of
Delaware.
(c) Dividends. Payment of dividends shall be as follows:<PAGE>
<PAGE> 4
(1) The holders of Preferred Stock of each series take preference to the
holders of Common Stock, shall be entitled to receive, as and when declared by
the Board of Directors funds legally available therefor, all dividends, at the
rate of such series fixed in accordance with the provisions of Article FIFTH
and no more;
(2) Dividends may be paid upon, or declared or set for, any series of
Preferred Stock in preference to the holder of any other series of Preferred
Stock in the manner determined by the resolutions of the Board of Directors
authorizing and creating such series;
(3) So long as any shares of Preferred Stock shall be outstanding, in no event
shall any dividend, whether in cash, in property, be paid or declared nor
shall any distribution be made, on the Common Stock, nor shall any shares of
Common be purchased, redeemed or otherwise acquired for value Corporation,
unless all dividends on all cumulative Preferred Stock with respect to all
past dividend periods, and unless all dividends on all series of Preferred
Stock for the then current dividend period shall have been paid or declared,
and provided for, and unless the Corporation shall not be in default with
respect to any of its obligations with respect to any sinking fund for any
series of Preferred Stock. The foregoing provisions of this subparagraph (3)
shall not, however, apply to any dividend payable in Common Stock;
(4) No dividend shall be deemed to have accrued on any share of Preferred
Stock of any series with respect to any period prior to the date of the
original issue of such share or the dividend payment date immediately
preceding or following such date of original issue, as may be provided in the
resolutions of the Board of Directors creating such series. Preferred Stock
shall not be entitled to participate in any dividends declared and paid on
Common Stock, whether payable in cash, stock or otherwise. Accruals of
dividends shall not pay interest.
(d) Dissolution or Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution of assets or winding-up of the Corporation, the
holders of the shares of each series of Preferred Stock then outstanding shall
be entitled to receive out of the net assets of the Corporation, but only in
accordance with the preferences, if any, provided for such series, before any
distribution or payment shall be made to the holders of Common Stock, the
amount per share fixed by the resolution or resolutions of the Board of
Directors to be received by the holder of each such share in such voluntary or
involuntary liquidation, dissolution, distribution of assets or winding-up, as
the case may be. If such payment shall have been made in full to the holders
of all outstanding Preferred Stock of all series, or duly provided for, the
remaining assets of the Corporation shall be available for distribution among
the holders of Common Stock as provided in this Article FIFTH. If upon any
such liquidation, dissolution, distribution of assets or winding-up, the net
assets of the Corporation available for distribution among the holders of any
one or more series of Preferred Stock which (i) are entitled to a preference
over the holders of Common Stock upon such liquidation, dissolution,
distribution of assets or winding-up, and (ii) rank equally in connection
therewith, shall be insufficient to make payment for the preferential amount
to which the holders of such shares shall be entitled, then such assets shall
be distributed among the holders of each such series of Preferred Stock
ratably according to the respective amounts to which they would be entitled in
respect of the shares held by them upon such distribution if all amounts
payable on or with respect to such shares were paid in full.
<PAGE> 5
Neither the consolidation nor merger of the Corporation, nor the sale, lease
or conveyance (whether for cash, securities or other property) of all,
substantially all or any part of its assets, shall be deemed a liquidation,
dissolution, distribution of assets or winding-up of the Corporation within
the meaning of this provision.
(e) Voting Rights. Except to the extent otherwise required by law or provided
in the resolution of the Board of Directors adopted pursuant to authority
granted in this Article FIFTH, the shares of Preferred Stock shall have no
voting power with respect to any matter whatsoever. The Board of Directors may
determine whether the shares of any series shall have limited, contingent,
full or no voting rights, in addition to the voting rights provided by law
and, if so, the terms of such voting rights. In no event shall the Preferred
Stock be entitled to more than one vote in respect of each share of such
stock.
II. COMMON STOCK.
(a) Issuance. The Common Stock may be issued from time to time in one or more
classes or series in any manner permitted by law, as determined by the Board
of Directors and stated in the resolution or resolutions providing for
issuance thereof. Each class or series shall be appropriately designated,
prior to issuance of any shares thereof, by some distinguishing letter, number
or title. All shares of each class or series of Common Stock shall be alike in
every particular and shall be of equal rank and have the same power,
preferences and rights, and shall be subject to the same qualifications,
limitations and restrictions, if any.
(b) Voting Powers. The Common Stock may have such voting powers (full,
limited, contingent or no voting powers), such designations, preferences and
relative, participating, optional or other special rights, and be subject to
such qualifications, limitations and restrictions, as the Board of Directors
shall determine by resolution or resolutions. Unless otherwise resolved by the
Board of Directors, each Common Stock share shall be of the same class,
without any designation, preference or relative, participating, optional or
other special rights, and subject to no qualification, limitation or
restriction, and share of Common Stock shall have one vote in respect of all
matters voted upon by the shareholders.
(c) Dividends. After the requirements with respect to preferential dividends,
if any, on Preferred Stock, and after the Corporation shall have complied with
all requirements, if any, with respect to the setting aside of sums in a
sinking fund for the purchase or redemption of shares of any series of
Preferred Stock, then and not otherwise, the holders of Common Stock shall
receive, ro the extent permitted by law, such dividends as may be declared
from time to time by the Board of Directors.
(d) Dissolution or Liquidation. After distribution in full of the preferential
amount, if any, to be distributed to the holders of Preferred Stock, in the
event of the voluntary or involuntary liquidation, dissolution, distribution
of assets or winding-up of the Corporation, the holders of Common Stock shall
be entitled to receive all the remaining assets of the Corporation of whatever
kind available for distribution to shareholders ratably in proportion to the
number of shares of Common Stock respectively held by them.
III. GENERAL MATTERS.
(a) Fully Paid and Non-assessable. Any and all shares of Common or Preferred
<PAGE> 6
Stock issued by the Corporation for which the full consideration as fixed in
accordance with Article FIFTH of this Charter has been paid or delivered,
shall be deemed fully paid and non-assessable shares.
(b) Amendment of Shareholder Rights. So long as no shares of any class or
series established by resolution of the Board of Directors have been issued,
the voting rights, designations, preferences and relative, optional,
participating or other rights of these shares may be amended by resolution of
the Board of Directors.
(c) Status of Certain Shares. Shares of Preferred or Common Stock which have
redeemed, converted, exchanged, purchased, retired or surrendered to the
Corporation, or which have been reacquired in any other manner, shall have the
status of authorized and unissued Common and Preferred Stock and may be
reissued by the Board of Directors as shares of the same or any other series.
(d) Denial of Preemptive Rights. No holder of any shares of the Corporation
shall be entitled as a matter of right to subscribe for or purchase any part
of any new or additional issue of stock of any class or of securities
convertible into or exchangeable for stock of any class, whether now or
hereafter authorized or whether issued for money, for a consideration other
than money, or by way of dividend.
(e) Partial Liquidation. The Board of Directors may from time to time
distribute to shareholders in partial liquidation, out of stated capital or
capital surplus, a portion of the Corporation's assets, in cash or property,
subject to any limitations set forth in the General Corporation Law of
Delaware. Any such partial liquidation may be made without the vote or
approval of shareholders. The Corporation may also from time to time redeem
its Common or Preferred Stock, in accordance with law, without the vote or
approval of its shareholders.
(VOTING OF SHAREHOLDERS)
SIXTH. The following provisions are hereby adopted for the purpose of
regulating certain matters relating to the voting of shareholders of the
Corporation:
(a) Definitions. Whenever the term "total voting power" appears in this
Charter, it shall mean all shares of the Corporation entitled to vote at a
particular meeting or on any particular question presented for shareholder
approval, and of every class or series of shares entitled to vote by class or
series. Whenever the term "voting power present" appears in this Charter, it
shall mean that portion of the total voting power (if less than 100%) which is
present at a legal meeting of the Corporation's shareholders, duly called and
held, at which a quorum is present.
(b) Quorum. A majority of the shares of each such class or series, represented
in person or by proxy, shall constitute a quorum at any meeting of the
Corporation's shareholders.
(c) Vote Required. Any action to be taken by the Corporation's shareholders
may be taken by a majority of the total voting power, except where this
Charter or the Corporation's by-laws then in effect require a higher
proportion of the total voting power. Nothing contained in this Article shall
affect the voting rights of holders of any class or series of shares entitled
to vote as a class or by series. The By-laws may provide for the vote
necessary at any adjournment of a duly called meeting for which a quorum was
not obtained.
<PAGE> 7
(d) Manner of Voting. The vote of shareholders may be taken at a meeting by a
show of hands or other method authorized by the Board of Directors. Written
ballots shall be used only upon authorization of the Board of Directors or as
provided in the Corporation's By-laws.
(e) Action Without Meeting. Any action by the shareholders may be taken by
written consent, in lieu of a meeting and without prior notice or vote, of the
holders of that proportion of the total voting power necessary to authorize
such action. The manner of obtaining any such written consent shall be
governed by the Corporation's Bylaws.
(f) Shareholder Ratification. Any contract, transaction, or act of the
Corporation or of the directors which shall be ratified by a majority of a
quorum of the shareholders having voting powers at any annual meeting, or at
any special meeting called for such purpose, or by means of a written consent
in lieu of a meeting, shall so far as permitted by law be as valid and as
binding as though ratified by every shareholder of the Corporation.
(CONCERNING SHAREHOLDERS, DIRECTORS AND OFFICERS})
SEVENTH. The following provisions are hereby adopted for the purpose of
defining, limiting, and regulating the powers of the Corporation and of the
directors, officers and shareholders:
(a) Number of Directors. The number of Directors shall be as fixed in the
By-laws. In the absence of such provision in the By-laws, the Corporation
shall have one (1) Director. Directors shall be elected by plurality vote and
need not be elected by written ballot.
(b) Authority to Issue Securities. The Board of Directors of the Corporation
is hereby empowered to authorize and direct the issuance from time to time of
shares of its stock of any class, whether now or hereafter authorized, and
securities exercisable for, convertible into or exchangeable for shares of its
stock of any class, whether now or hereafter authorized, for such
consideration as the Board of Directors may deem advisable, subject to such
limitations and restrictions as may be set forth in the By-laws of the
Corporation.
(c) Interested Directors. Any director individually, or any firm of which any
director may be a member, or any corporation or association of which any
director may be an officer or director or in which any director may be
interested as the holder of any amount of its capital stock or otherwise, may
be a party to, or may be pecuniarily or otherwise interested in, any contract
or transaction of the Corporation, and in the absence of fraud no contract or
other transaction shall be thereby affected or invalidated; provided, that in
case a director, or a firm of which a director is a member, or is so
interested, such fact shall be disclosed or shall have been known to the Board
of Directors or a majority thereof. Any director of the Corporation who is
also a director or officer or interested in such other corporation or
association or who, or the firm of which he is a member, is so interested, may
be counted in determining the existence of a quorum at any meeting of the
Board of Directors of the Corporation which shall authorize any such contract
or transaction, with like force and effect as if he were not such director or
officer of such other corporation or association or not so interested or a
member of a firm so interested.
(d) Removal of Directors.
<PAGE> 9
(i) A director of the Corporation, or the entire Board of Directors of the
Corporation, may be removed by the shareholders without cause only upon the
affirmative vote of the holders of not less than 80% of the stock entitled to
vote in the election of directors, without considering the vote of the
director or directors sought to be removed.
(ii) A director may be removed for cause only by the affirmative vote of the
holders of a majority of the stock entitled to vote upon his election, without
considering the vote of the director sought to be removed.
(iii) As used herein, "cause" for the removal of a director shall be deemed to
exist if (A) there has been a finding by not less than 2/3 of the entire Board
of Directors (80% if the Board of Directors consists of five or more persons)
that cause exists and the directors have recommended removal to the
shareholders, or (B) any other cause defined by law.
(e) Removal of Officers and Employees. Unless the By-laws otherwise provide,
any officer or employee of the Corporation (other than a director) may be
removed at any time with or without cause by the Board of Directors or by any
committee or superior officer upon whom such power of removal may be conferred
by the By-laws or by authority of the Board of Directors.
(f) Corporate Opportunities. The officers, directors and other members of
management of the Corporation shall be subject to the doctrine of "corporate
opportunities" only insofar as it applies to any business opportunity in which
the Corporation has expressed an interest as determined from time to time by
the Corporation's Board of Directors as evidenced by resolutions appearing in
the Corporation's minutes. Once such areas of interest are delineated, all
such business opportunities within such areas of interest which come to the
attention of the officers, directors, and other members of management of the
Corporation shall be disclosed promptly to the Corporation and made available
to it. The Board of Directors may reject any business opportunity presented to
it, and only thereafter may any officer, director or other member of
management avail himself of such opportunity. Until such time as the
Corporation, through its Board of Directors, has designated an area of
interest, the officers, directors and other members of management of this
Corporation shall be free to engage in such area of interest on their own, and
this doctrine shall not limit the rights of any officer, director or other
member of management of the Corporation to continue a business existing prior
to the time that such area of interest is designated by the Corporation. This
provision shall not be construed to release any employee of the Corporation
from any duties which he may have to this Corporation.
(BY-LAWS)
EIGHTH. The initial By-laws of the Corporation shall be adopted by its Board
of Directors. The power to alter, amend or repeal the By-laws or adopt new
By-laws shall be vested in the Board of Directors, subject to the right of the
shareholders to alter, amend or repeal such By-laws or adopt new By-laws by
the affirmative vote of at least two-thirds (2/3) of the total voting power.
The By-laws may contain any provisions for the regulation and management of
the affairs of the Corporation not inconsistent with law or this Charter.
(INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS)
NINTH. The following provisions are hereby adopted for the purpose of defining
and regulating certain rights of directors, officers and others in respect of
indemnification and related matters.
<PAGE> 10
(a) Actions. Suits or Proceedings Other than by or in the Right of the
Corporation. The Corporation may 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 (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action,
suit or proceeding and any appeal therefrom, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests
of the Corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation or that, with respect to any criminal proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(b) Actions or Suits by or in the Right of the Corporation. The Corporation
may 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 by or
in the right of the Corporation to procure a judgment in its favor by reason
of the fact that he is or was or has agreed to become a director, officer,
employee or agent of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted
in such capacity, against costs, charges and expenses (including amounts paid
in settlement and attorney's fees) actually and reasonably incurred by him or
on his behalf in connection with the defense or settlement of such action or
suit and any appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and
expenses which the Court of Chancery or such other court shall deem proper.
(c) Indemnification for Costs. Charges and Expenses of Successful Party.
Notwithstanding the other provisions of this Article NINTH, to the extent that
a director, officer, employee or agent of the Corporation has been successful
on the merits or otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit or proceeding
referred to in Sections (a) and (b) of this Article NINTH, or in defense of
any claim, issue or matter therein, he may be indemnified against all costs,
charges and expenses (including attorney's fees) actually and reasonably
incurred by him or on his behalf in connection therewith.
<PAGE>
<PAGE> 11
(d) Determination of Right to Indemnification. Any indemnification under
Sections (a) and (b) of this Article NINTH (unless ordered by a court) shall
be paid by the Corporation unless a determination is made (i) by a
disinterested majority of the Board of Directors who were not parties to such
action, suit or proceeding, or(ii) if such disinterested majority of the Board
of Directors so directs, by independent legal counsel in a written opinion, or
(iii) by the shareholders, that indemnification of the director or officer is
not proper in the circumstances because he has not met the applicable standard
of conduct set forth in Sections (a) and (b) of this Article NINTH.
(e) Advances of Costs. Charges and Expenses. Costs, charges and expenses
(including attorney's fees) incurred by a person referred to in Sections (a)
or (b) of this Article NINTH in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding; provided, however, that the payment of
such costs, charges and expenses incurred by a director or officer in his
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified
by the Corporation as authorized in this Article, accompanied by evidence
satisfactory to the Board of Directors of ability to make such repayment. Such
costs, charges and expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the majority of the Directors
deems appropriate. The majority of the Directors may, in the manner set forth
above, and upon approval of such director, officer, employee or agent of the
Corporation, authorize the Corporation's counsel to represent such person, in
any action, suit or proceeding, Whether or not the Corporation is a party to
such action, suit or proceeding.
(f) Procedure for Indemnification. Any indemnification under Sections (a), (b)
and (c), or advance of costs, charges and expenses under Section (e) of this
Article NINTH, shall be made prompt~y, and in any event within 60 days, upon
the written request of the director or officer. The right to indemnification
or advances as granted by this Article shall be enforceable by the director or
officer in any court of competent jurisdiction if the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such person's costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part,
in any such action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section (e) of this
Article NINTH where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth
in Sections (a) or (b) of this Article NINTH, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, its independent legal counsel and its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections
(a) or (b) of this Article NINTH, nor the fact that there has been an actual
determination by the Corporation "including its Board of Directors, its
independent legal counsel and its shareholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
<PAGE> 11
(g) Settlement. If in any action, suit or proceeding, including any appeal,
within the scope of Sections (a) or (b) of this Article NINTH, the person to
be indemnified shall have unreasonably failed to enter into a settlement
thereof, then, notwithstanding any other provision hereof, the indemnification
obligation of the Corporation to such person in connection with such action,
suit or proceeding shall not exceed the total of the amount at which
settlement could have been made and the expenses by such person prior to the
time such settlement could reasonably have been effected.
(h) Other Rights; Continuation of Right to Indemnification. The
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which any director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory),
agreement, vote of shareholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding office or while employed by or acting as agent for the
Corporation, and shall continue as to a person who has ceased to be a
director, officer, employee or agent, and shall inure to the benefit of the
estate, heirs, executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract between
the Corporation and each director or officer of the Corporation who serves or
served in such capacity at any time while this Article NINTH is in effect. Any
repeal or modification of this Article NINTH or any repeal or modification of
relevant provisions of the General Corporation Law of Delaware or any other
applicable laws shall not in any way diminish any rights to indemnification of
such director, officer, employee or agent or the obligations of the
Corporation arising hereunder. This Article NINTH shall be binding upon any
successor corporation to this Corporation, whether by way of acquisition,
merger, consolidation or otherwise.
(i) Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was or has agreed to become a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him or on his behalf in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article NINTH; provided, however, that such insurance
is available on acceptable terms, which determination shall be made by a vote
of a majority of the Directors.
(j) Savings Clause. If this Article NINTH or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation (i) shall nevertheless indemnify each director and officer of the
Corporation and (ii) may nevertheless indemnify each employee and agent of the
Corporation, as to any cost, charge and expense (including attorney's fees),
judgment, fine and amount paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article NINTH that shall not have
been invalidated and to the full extent permitted by applicable law.
(k) Amendment. The affirmative vote of at least two-thirds (2/3) of the total
voting power shall be required to amend, repeal, or adopt any provision
inconsistent with, this Article NINTH. No amendment, termination or repeal of
this Article NINTH shall affect or impair in any way the rights of any
director or officer of the Corporation to indemnification under the provisions
<PAGE> 12
hereof with respect to any action, suit or proceeding arising out of, or
relating to, any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or appeal.
(1) Subsequent Legislation. If the General Corporation Law of Delaware is
amended after adoption of this Charter to further expand the indemnification
permitted to directors, officers, employees or agents of the Corporation, then
the Corporation shall indemnify such persons to the fullest extent permitted
by the General Corporation Law of Delaware, as so amended.
(m) Restriction. Notwithstanding any other provision hereof whatsoever, no
person shall be indemnified under this Article NINTH who is adjudged liable
for (i) a breach of duty to the Company or its shareholders that resulted in
personal enrichment to which he was not legally entitled, (ii) intentional
fraud or dishonesty or illegal conduct, or (iii) for any other cause
prohibited by applicable state or federal law, unless a court determines
otherwise.
(EXCLUSION OF DIRECTOR LIABILITY)
TENTH. As authorized by Section 102(b)(7) of the General Corporation Law of
Delaware, no director of the Corporation shall be personally liable to the
Corporation or any shareholder thereof for monetary damages for breach of his
fiduciary duty as a director, except for liability (i) for any breach of a
Director's duty of loyalty to the Corporation or its shareholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) for acts in violation of Section 174 of the
General Corporation Law of Delaware, as it now exists or may hereafter be
amended, (iv) for any transaction from which the director derives an improper
personal benefit, or (v) for any act or omission occurring prior to the date
when this Article TENTH becomes effective. This Article TENTH shall apply to a
person who has ceased to be a director of the Corporation with respect to any
breach of fiduciary duty which occurred when such person was serving as a
director. This Article TENTH shall not be construed to limit or modify in any
way any director's right to indemnification or other right whatsoever under
this Charter, the Corporation's By-laws or the General Corporation Law of
Delaware.
If the General Corporation Law of Delaware hereafter is amended to authorize
the further elimination or limitation of the liability of directors, then the
liability of the Corporation's directors, in addition to the limitation on
personal liability-provided herein, shall be limited to the fullest extent
permitted by the General Corporation Law of Delaware as so amended. Any repeal
or modification of this Article TENTH by the shareholders shall be prospective
only and shall not adversely affect any limitation on the personal liability
of any director existing at the time of such repeal or modification. The
affirmative vote of at least two-thirds (2/3) of the total voting power shall
be required to amend or repeal, or adopt any provision inconsistent with, this
Article TENTH.
IN WITNESS WHEREOF, the undersigned, being the Incorporator named above, for
the purpose of forming a corporation pursuant to the General Corporation Law
of Delaware does hereby make and file this Certificate.
INCORPORATOR:
/S/ JOHN D. BRASHER, JR.
<PAGE>
<PAGE> 13
STATE OF DELAWARE
[CREST]
OFFICE OF SECRETARY OF STATE
I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
OWNERSHIP OF IMMUNOTECHNOLOGY CORPORATION, A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, MERGING IMMUNOTECHNOLOGY
LABORATORIES, INC A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF UTAH, PURSUANT TO SECTION 253 OF THE GENERAL CORPORATION LAW OF THE
STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE ON THE TWENTY-FIRST
DAY OF DECEMBER, A.D. 1989, AT 2 O'CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
[SEAL OF THE DEPARTMENT OF STATE
OFFICE OF THE SECRETARY OF STATE
STATE OF DELAWARE] /S/Michael Harkin, Secretary of State
Authentication: 12461817
8999355384 Date: 12/22/1989
<PAGE>
<PAGE> 14
CERTIFICATE OF OWNERSHIP
MERGING
IMMUNOTECHNOLOGY LABORATORIES, INC.
(A Utah Corporation)
INTO
IMMUNOTECHNOLOGY CORPORATION
(A Delaware Corporation)
(Pursuant to Section 253 of the General Corporation Law of Delaware)
ImmunoTechnology Laboratories, Inc., a corporation incorporated on the
12th day of November, 1985, pursuant to the provisions of the Utah Business
Corporation Act DOES HEREBY CERTIFY that this Corporation owns at least 90% of
the capital stock of ImmunoTechnology Corporation, a corporation incorporated
on the 30th of November, 1989, pursuant to the provisions of the General
Corporation Law of Delaware and that this Corporation, by resolution of its
Board of Directors duly adopted by means of a unanimous written consent in
lieu of a directors' meeting dated November 30, 1989, determined to and did
merge itself into said ImmunoTechnology Corporation, which resolution is in
the following words, to wit:
WHEREAS, this Corporation lawfully owns 100% (and thus for statutory
purposes at least 90%) of the outstanding capital stock of ImmunoTechnology
Corporation, a corporation organized and existing under the laws of Delaware:
and
WHEREAS, this Corporation desires to merge itself into the said
ImmunoTechnology Corporation and for said corporation to be possessed of all
the estate, property, rights, privileges and franchises of this Corporation;
therefore, be it
RESOLVED, FIRST, that this Corporation merge itself into and it hereby
does merge itself into said ImmunoTechnology Corporation and assumes all of
its liabilities and obligations; and it is
RESOLVED, SECOND, that the Certificate of Incorporation of said
Immunotechnology Corporation shall continue to be the certificate of
incorporation of the merged entity; and it is
RESOLVED, THIRD, that the President and any Vice President and the
Secretary or any assistant secretary, of this Corporation be and they hereby
are directed to make and execute under corporate seal of this Corporation, a
Certificate of Ownership setting forth a copy of this resolution to merge
itself into said ImmunoTechnology Corporation and for said corporation to
assume all of this Corporation's liabilities and obligations, and the date of
adoption thereof, and to file the same in the office of the Secretary of State
of Delaware, and a certified copy thereof in the office of the Recorder of
Deeds of New Castle County; and it is
RESOLVED, FOURTH, that the officers of this Corporation be and they are
hereby authorized and directed to do all acts and things whatsoever, whether
within or without the State of Delaware, which may be in any way necessary or
proper to effect such merger.
IN WITNESS WHEREOF, Whitney American Corporation has caused it corporate
seal to be affixed and this certificate to be signed by John A Wise, its
President, and attested by Gerald M. Haase, its Secretary, this 30th day of
November, 1989.
/S/ John A. Wise, President
(Seal)
Attest: /S/ Gerald M. Haase, Secretary
<PAGE> 15
STATE OF UTAH
BUSINESS REGULATION
CERTIFICATE OF INCORPORATION
OF
LJC CORPORATION
THE UTAH DIVISION OF CORPORATION AND COMMERCIAL CODE, HEREBY CERTIFIES
THAT DUPLICATE COPIES OF ARTICLES OF INCORPORATION FOR THE INCORPORATION OF
LJC CORPORATION
DULY SIGNED AND VERIFIED PURSUANT TO THE PROVISIONS OF THE UTAH BUSINESS
CORPORATION ACT, HAVE BEEN RECEIVED IN THIS OFFICE AND ARE FOUND TO CONFORM TO
LAW.
ACCORDINGLY, THE DIVISION OF CORPORATIONS AND COMMERCIAL CODE, HEREBY
ISSUES THIS CERTIFICATE OF INCORPORATION OF
LJC CORPORATION
AND ATTACHES HERETO A DUPLICATE COPY OF THE ARTICLES OF INCORPORATION.
117672.
[SEAL OF THE DIVISION OF
CORPORATIONS AND COMMERCIAL CODE,
STATE OF UTAH] DATED THIS 12TH DAY OF NOVEMBER, 1985.
/S/ RANDALL R. SMART, DIRECTOR,
DIVISION OF CORPORATIONS AND
COMMERCIAL CODE
<PAGE>
<PAGE> 16
ARTICLES OF INCORPORATION
OF
LJC CORPORATION
We, the undersigned, natural persons over the age of eighteen (18) years
or more, acting as incorporators of the corporation under the Utah Business
Corporation Act, adopt the following Articles of Incorporation for such
corporation.
ARTICLE I
CORPORATE NAME
The name of the Corporation is LJC CORPORATION.
ARTICLE II
DURATION
The duration of the Corporation shall be perpetual.
ARTICLE III
GENERAL PURPOSES
This Corporation is organized for the following purposes:
A. To purchase, sell and invest in new products, technologies and businesses
of any and all types and kinds.
B. To acquire or merge into existing businesses.
C. To buy, sell, mortgage, exchange, lease, hold for investment or otherwise
operate real and personal property of all kinds and any interest therein.
D. For any other purposes allowed by law.
E. The provisions of this Article shall be construed as purposes and powers
and each as an independent purpose and power. The enumeration of specific
purposes and powers shall not be held to limit or restrict in any manner the
purposes and powers of the Corporation, and the purposes and powers therein
specified shall not be limited or restricted by reference to, or inference
from, the terms of any provision of this or any other article hereof.
ARTICLE IV
AUTHORIZED SHARES
The aggregate number of shares the Corporation shall have authority to
issue is ONE HUNDRED MILLION (100,000,000) shares with a par value of ONE
TENTH OF ONE CENT ($0.001) per share. All stock of this Corporation shall be
of the same class which shall be designated common stock.
ARTICLE V
COMMENCEMENT OF BUSINESS
The Corporation will not commence business until at least ONE THOUSAND
DOLLARS ($1,000) in cash or property has been received by it as consideration
for the issuance of its shares.
<PAGE> 17
ARTICLE VI
REGISTERED OFFICE AND AGENT
The post office address of the Corporation's initial registered office is
420 East South Temple, Suite 334, Salt Lake City, UT 84111 and the name of its
initial registered agent at such address is A.O. Headman, Jr.
ARTICLE VII
PRE-EMPTIVE RIGHTS
The shareholders shall have no pre-emptive rights to acquire any
securities of this Corporation.
ARTICLE VIII
DIRECTORS
The number of directors constituting the initial Board of Directors of
the Corporation is three (3) and the names and addresses of the persons who
are to serve as directors until their successors are elected and shall qualify
are:
James C. Berry 358 South Grant Street
Denver, CO 80290
Lawrence E. Jansen 6300 West Mansfield Ave., #67
Denver, CO 80235
Charles W. Pippenger 7447 South Lamar Street
Littleton, CO 80123
ARTICLE IX
INCORPORATORS
The names and addresses of the incorporators are:
James C. Berry 358 South Grant Street
Denver, CO 80290
Lawrence E. Jansen 6300 West Mansfield Ave., #67
Denver, CO 80235
Charles W. Pippenger 7447 South Lamar Street
Littleton, CO 80123
ARTICLE X
NON-ASSESSABILITY
Shares of the Corporation shall not be subject to assessment for payment
of the debts of the Corporation.
ARTICLE XI
EXEMPTION FROM CORPORATE DEBTS
The private property of the shareholders shall not be subject to the
payment of any corporate debts to any extent whatsoever.
<PAGE>
<PAGE> 18
ARTICLE XII
COMMON DIRECTORS - TRANSACTIONS BETWEEN CORPORATIONS
No contract or other transaction between this corporation and any one or
more of its directors or any other corporation, firm, association, or entity
in which one or more of its directors or officers are financially interested,
shall be either void or voidable because of such relationship or interest, or
because such director or directors are present at the meeting of the Board of
Directors, or a committee thereof, which authorizes, approves, or ratifies
such contract or transaction, or because his or their votes are counted for
such purpose if: (a) the fact of such relationship or interest is disclosed or
known to the Board of Directors or committee which authorizes, approves, or
ratifies the contract or transaction by vote or consent sufficient for the
purpose without counting the votes or consents of such interested directors;
or(b) the fact of such relationship or interest is disclosed or known to the
shareholders entitled to vote and they authorize, approve, or ratify such
contract or transaction by vote or written consent, or to) the contract or
transaction is fair and reasonable to the corporation.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or committee thereof which
authorizes, approves or ratifies such contract or transaction.
DATED this 7th day of November 1985.
/S/ Lawrence E. Jansen, Incorporator
/S/ James C. Berry, Incorporator
/S/ Charles W. Pippenger, Incorporator
A.O. Headman, Jr., hereby accepts the appointment as registered agent for
LJC Corporation.
/S/ A.O. Headman, Jr., Registered Agent
State of Colorado)
) ss.
County of Denver )
On the 7th day of November, 1985, personally appeared before me James C.
Berry, who being by me first duly sworn, declared that he is the person who
signed the foregoing document as an incorporator and that the statements
therein contained are true.
IN WITNESS WHEREOF, I have hereunder set my hand and seal this 7th day of
November, 1985.
/S/ Rebecca N. [Frikes], Notary Public
Residing at 6502 S. Vance St., Littleton, CO 80123
My Commission Expires: 3-31-87
<PAGE>
<PAGE> 19
State of Colorado)
) ss.
County of Denver )
On the 7th day of November, 1985, personally appeared before me Lawrence
E. Jansen, who being by me first duly sworn, declared that he is the person
who signed the foregoing document as an incorporator and that the statements
therein contained are true.
IN WITNESS WHEREOF, I have hereunder set my hand and seal this 7th day of
November, 1985.
/S/ Rebecca N. [Frikes], Notary Public
Residing at 6502 S. Vance St., Littleton, CO 80123
My Commission Expires: 3-31-87
State of Colorado)
) ss.
County of Denver )
On the 7th day of November, 1985, personally appeared before me Charles
W. Pippenger, who being by me first duly sworn, declared that he is the person
who signed the foregoing document as an incorporator and that the statements
therein contained are true.
IN WITNESS WHEREOF, I have hereunder set my hand and seal this 7th day of
November, 1985.
/S/ Rebecca N. [Frikes], Notary Public
Residing at 6502 S. Vance St., Littleton, CO 80123
My Commission Expires: 3-31-87
State of Utah )
) ss.
County of Salt Lake)
On the 30th day of October, 1985, personally appeared before me A.O.
Headman, who being by me first duly sworn, declared that he is the registered
agent who signed the foregoing document as the registered agent.
IN WITNESS WHEREOF, I have hereunder set my hand and seal this 30th day
of October, 1985.
/S/ Tanya M. Sargent, Notary Public
Residing at Salt Lake City, Utah
My Commission Expires: 1-13-86
<PAGE>
<PAGE> 20
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION OF
LJC CORPORATION
Pursuant to the provisions of Section 16-10-57 of the Utah Business
Corporation Act, the undersigned corporation hereby adopts the following
Articles of Amendment to its Articles of Incorporation.
FIRST: The name of the Corporation is LJC CORPORATION.
SECOND: The following amendment to the Articles of Incorporation of LJC
Corporation, was duly adopted by the shareholders of the corporation at a
meeting held October 4, 1989, in the manner prescribed by the Utah Business
Corporation Act, to Wit:
Article I - Name
----------------
The name of this corporation is IMMUNOTECHNOLOGY LABORATORIES, INC.
THIRD: The number of shares of the corporation outstanding at the time of
the adoption of such amendments was 1,158,000 and the number entitled to vote
thereon was 1,158,000.
FOURTH: The designation and number of outstanding shares of each classs
entitled to vote thereon as a class were as follows, to wit:
Class Number of Shares
----- ----------------
Common 1,158,000
FIFTH: The number of shares voted for such amendment was 644,300, with -0-
opposing and -0- abstaining.
SIXTH: This amendment does not provide for any exchange, reclassification
or cancellation of issued shares.
SEVENTH: This amendment does not effect a change in the stated capital of
the corporation as set forth above.
IN WITNESS WHEREOF, the undersigned president and secretary having been
thereunto duly authorized, have executed the foregoing Articles of Amendment
for the corporation this 7th day of October, 1989.
LJC Corporation Attest:
By /S/ Rebecca N. Semone /S/ Charles W. Pippenger
- ------------------------- ------------------------
President Vice President
State of Colorado)
) ss.
County of Denver )
Subscribed and sworn before me this 7th day of October, 1989, by Rebecca
N. Semone, President of LJC Corporation.
/S/ John D. Brasher, Jr., Notary Public
Residing at 3212 South Florence Ct., Denver, CO 80231
<PAGE> 21
State of Colorado)
) ss.
County of Denver )
Subscribed and sworn before me this 7th day of October, 1989, by Charles
W. Pippenger, Vice President of LJC Corporation.
/S/ John D. Brasher, Jr., Notary Public
Residing at 3212 South Florence Ct., Denver, CO 80231
<PAGE> 1
EXHIBIT NO. 2
BY LAWS
OF
IMMUNOTECHNOLOGY CORPORATION
(A Delaware Corporation)
ARTICLE I General
1.01 Offices. The principal office of this Corporation (hereinafter, the
"Company") shall be selected by the Board of Directors from time to time and
may be within or without the State of Delaware. The Company may have such
other offices, within or without the State of Delaware, as the Board of
Directors may, from time to time, determine.
1.02 Registered Office. The registered office of the Company required by the
General Corporation Law of Delaware to be maintained in Delaware may be, but
need not be, identical with the principal office if in Delaware, and the
address of the registered office may be changed from time to time by the Board
of Directors.
1.03 Reseal of Inconsistent Provisions. All prior by-laws and resolutions of
the Board of Directors are repealed to the extent in conflict with the
provisions of these By-Laws.
1.04 Definition of Terms. Terms defined in the Company's Certificate of
Incorporation, as amended and restated from time to time in effect (the
"Charter"), shall have the same meanings when used in these By-Laws.
ARTICLE II
Stock Certificates and Transfer
2.01 Stock Certificates. The shares of the Company's capital stock shall be
represented by consecutively numbered certificates signed by the President or
a Vice President and the Secretary or Assistant Secretary of the Company, and
sealed with the seal of the Company, or a facsimile thereof. If certificates
are signed by a transfer agent and registrar other than the Company or an
employee thereof, the signatures of the officers of the Company may be
facsimile. In case any officer who has signed (by real or facsimile signature)
shall have ceased to be such officer before such certificate is issued, it may
be issued by the Company with the same effect as if he were such officer on
the date of its issue. Each certificate representing shares shall state upon
the face thereof: (i) that the Company is organized under the laws of the
State of Delaware; (ii) the name of the person to whom issued; (iii) the
number, class and series (if any) of shares which such certificate represents;
and (iv) the par value, if any, of the shares represented by such certificate,
or a statement that the shares have no par value.
If any class or series of shares is subject to special powers, designations,
preferences or relative, participating or other special rights, then such
(together with all qualifications, limitations or restrictions of such
preferences or rights) shall be set forth in full or summarized on the
certificate representing such class or series. Moreover, each certificate
shall state that the Company will furnish, without charge, to the registered
holder of the shares represented by such certificate who so requests a
statement setting forth such information in full.
Each certificate also shall set forth restrictions upon transfer, if any, or a
reference thereto, as shall be adopted by the Board of Directors or by the
shareholders, or as may be contained in this Article II. No certificate shall
be issued for any share until such share is fully paid, as defined in the
Charter.
<PAGE> 2
2.02 Consideration for Shares. Shares shall be issued for such consideration
or considerations as shall be fixed from time to time by the Board of
Directors. Treasury shares may be disposed of by the Company for such
consideration as may be fixed from time to time by the Board of Directors. No
shares shall be issued for less than the par value thereof. The consideration
for the issuance of shares may be paid, in whole or in part, in money, in
other property, tangible or intangible, or in labor or services actually
received by or performed for the Company or for its benefit or in its
formation or reorganization, or as otherwise permitted in the Charter. Future
services shall not constitute payment or part payment for shares of the
Company.
2.03 Lost Certificates. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Company alleged to have been lost or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, and the Board of Directors when authorizing such issue of
a new certificate or certificates may in its discretion, and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates or his legal representative to advertise the same
in such manner as it shall require, and/or furnish to the Company a bond in
such sum as it may direct, as indemnity against any claim that may be made
against the Company. Except as hereinabove in this section provided, no new
certificate or certificates evidencing shares of stock shall be issued unless
and until the old certificate or certificates, in lieu of which the new
certificate or certificates are issued, shall be surrendered for cancellation.
2.04 Registered Holder as Owner. The Company shall be entitled to treat the
holder of record of any share of stock as the owner thereof entitled to
receive dividends and to vote such shares, and accordingly shall not be bound
to recognize any equitable or any other claim to or interest in such shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as may be required by a valid proxy or by the laws of
the State of Delaware.
2.05 Returned Certificates. All certificates for shares changed or returned to
the Company for transfer shall be marked by the Secretary "CANCELLED," with
the date of cancellation, and the transaction shall be immediately recorded in
the certificate book opposite the memorandum of their issue. The returned
certificate may be inserted in the certificate book.
2.06 Transfer of Shares. Upon surrender to the Company or to a Transfer agent
or one company of a certificate of stock endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, and such
documentary stamps as may be required by law, it shall be the duty of the
Company to issue a new certificate upon receipt of such nominal fee therefor
as the Company or its transfer agent may impose. Each such transfer of stock
shall be entered on the stock book of the Company.
2.07 Transfer Agent. The Board of Directors shall have power to appoint one or
more transfer agents and registrars for the transfer and registration of
certificates of stock of any class, and may require that stock certificates
shall be countersigned and registered by one or more of such transfer agents
and registrars. Any powers or duties with respect to the transfer and
registration of certificates may be delegated to the transfer agent and
registrar.
<PAGE> 3
ARTICLE III
Meetings of the Shareholders
3.01 Annual Meeting. The annual meeting of the shareholders shall be held
between and , at such date and time and at such place,
within or without the State of Delaware, as is designated from time to time by
the Board of Directors and stated in the notice of the meeting. At each annual
meeting the shareholders shall elect a Board of Directors in accordance with
the Charter and shall transact such other business as may properly be brought
before the meeting.
3.02 Special Meetings. Unless otherwise proscribed by law, the Charter or
these By-Laws, special meetings of the shareholders may be called by the
Chairman of the Board, the President, or a majority of the Board of Directors.
The President shall call a special meeting upon the Secretary's receipt of
written demand therefor by the holders of not less than twenty percent (20%)
of the total voting power. Requests for special meetings shall state the
purpose or purposes of the proposed meeting.
3.03 Notice of Meetings. Except as otherwise provided by law, the Charter or
these By-Laws, written notice of any annual or special meeting of the
shareholders shall state the place, date, and time thereof and, in the case of
a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each shareholder of record entitled to vote at such meeting
not fewer than 10 nor more than 60 days prior to the meeting by any means
permitted in Section 9.01 hereof. No business other than that specified in the
notice of a special meeting shall be transacted at any such special meeting.
3.04 Record Date. In order that the Company may determine shareholders of
record who are entitled (i) to notice of or to vote at any shareholders
meeting or adjournment thereof, (ii) to express written consent to corporate
action in lieu of a meeting, (iii) to receive payment of any dividend or other
distribution, or (iv) to allotment of any rights or to exercise any rights in
respect of any change, conversion or exchange of stock, or in order that the
Company may make a determination of shareholders of record for any other
lawful purpose, the Board of Directors may fix in advance a date as the record
date for any such determination. Such date shall not be more than 60 days, and
in case of a meeting of shareholders, not less than 10 days prior to the date
on which the particular action, requiring such determination of shareholders,
is to be taken, and in no event may the record date precede the date upon
which the Directors adopt a resolution fixing the record date.
If no record date is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders, or shareholders entitled to
receive payment of a dividend, the date on which notice of the meeting is
given (as defined in Section 9.01 hereof) or the date on which the resolution
of the Board of Directors declaring such dividend is adopted, as the case may
be, shall be the record date for such determination of the shareholders. When
a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section such determination
shall apply to any adjournment thereof, unless the Record of Directors fixes a
new record date for the adjournment. The record date for determining
shareholders entitled to consent to core actions without a meeting shall be
fixed as provided in Section 3.12 hereof.
3.05 Voting List. At least 10 days but nor more than 60 days before any
meeting of shareholders, the officer or transfer age. in charge of the
Company's stock transfer books shall prepare a complete alphabetical list of
<PAGE> 4
the shareholders entitled to vote at such meeting, which list shows the
address of each shareholder and the number of shares registered in his or her
name. The list so prepared shall be maintained at the corporate offices of the
Company and shall be open to inspection by any shareholder, for any purpose
germane to the meeting, at any time during usual business hours during a
period of no fewer than 10 days prior to the meeting. The list shall also be
produced and kept open at any shareholders meeting and, except as otherwise
provided by law, may be inspected by any shareholder or proxy of a shareholder
who is present in person at the meeting. The original stock transfer books
shall be prima facie evidence as to who are the shareholders entitled to
examine the list of shareholders and to vote at any meeting of shareholders.
3.06 Quorum: Adjournments. (a) The holders of a majority of the total voting
power at any given shareholders meeting present in person or by proxy shall be
necessary to and shall constitute a quorum for the transaction of business at
all shareholders meetings, except as otherwise provided by law or by the
Charter.
(b) If a quorum is not present in person or by proxy at any shareholders
meeting, a majority of the voting power present shall have the power to
adjourn the meeting from time to time to the same or another place within 30
days thereof and no further notice of such adjourned meeting need be given if
the time and place thereof are announced at the meeting at which the
adjournment is taken.
(c) Even if a quorum is present in person or by proxy at any shareholders
meeting, a majority of the total voting power, present in person or by proxy,
shall have the power to adjourn the meeting from time to time, for good cause,
without notice of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, until a new date
which is not more than 30 days after the date of the original meeting.
(d) Any business which might have been transacted at a shareholders meeting as
originally called may be transacted at any meeting held after adjournment as
provided in this Section 3.06 at which reconvened meeting a quorum is present
in person or by proxy. Anything in paragraph (b) of this Section to the
contrary notwithstanding, if an adjournment is for more than 30 days, or if
after an adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote thereat.
(e) The shareholders present at a duly called meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
3.07 Proxies. At all meetings of shareholders, a shareholder may vote by
proxy, executed in writing by the shareholder or by iris duly authorized
attorney in fact. Any proxy holder shall be authorized to sign, on the
shareholder's behalf, any written consent for shareholder action taken in lieu
of a meeting. Such proxy shall be filed with the Secretary of the Company
before or at the time of the meeting. No proxy shall be valid after three (3)
years from the date of its execution, unless otherwise provided in the proxy.
3.08 Voting of Shares. Each outstanding share shall be entitled to one vote
and each fractional share shall be entitled to a corresponding fractional vote
on each matter submitted to vote at a meeting of shareholders. Unless a
greater proportion is required by the Charter or the General Corporation Law
of Delaware, the affirmative vote of a majority of the total voting power is
necessary for shareholder approval of any matter.
<PAGE> 5
3.09 Voting of Shares by Certain Holders. Neither treasury shares, nor shares
of its own stock held by the Company in a fiduciary capacity, nor shares held
by another corporation if the majority of the shares entitled to vote for the
election of directors of such other corporation is held by the Company, shall
be voted at any meeting or counted in determining the total number of
outstanding shares at any given time.
Shares standing in the name of another corporation, domestic or foreign, may
be voted by such officer, agent, or proxy as the bylaws of such corporation
may prescribe, or, in the absence of such provision, as the board of directors
of such corporation may determine.
Shares held by an administrator, executor, personal representative, guardian,
or conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares standing in the name of a
trustee may be voted by him, either in person or by proxy, but no trustee
shall be entitled to vote shares held by him without a transfer of such shares
into his name.
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 his name if authority to do so be
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are-pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledges, and
thereafter the pledges shall be entitled to vote the shares so transferred.
3.10 Chairman. The Chairman of the Board of Directors of the Company, if there
is one, or in his absence, the President, shall act as chairman at all
meetings of shareholders.
3.11 Manner of Shareholder Voting. Voting at any shareholders meeting shall be
oral or by show of hands; provided, however, that voting shall be by written
ballot if such demand is made by any shareholder present in person or by proxy
and entitled to vote.
3.12 Action by Shareholders Without a Meeting: Record Date. Any action
required or permitted to be taken at a meeting of the shareholders may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by a majority
of the total voting power; Provided, that where an action requires a greater
proportion of the total voting power, then the consent shall be signed by such
greater proportion. No written consent will be effective unless written
consents, signed by a sufficient proportion of shareholders to take action,
are delivered to the Company within sixty (60) days of the date of the
earliest such consent. Such consent shall have the same force and effect as a
vote of the shareholders, and may be stated as such in any document filed with
the Secretary of State of Delaware under the General Corporation Law of
Delaware. Prompt notice of such action by written consent of less than all
shareholders entitled to vote shall be given to all shareholders who have not
consented in writing to the action taken.
The record date for determining shareholders entitled to consent to corporate
actions in writing without a meeting (the "consent record date") shall not
precede, and shall not be more than ten (10) days after, the date upon which
<PAGE> 6
the resolution fixing the record date was adopted. However, if no consent
record date is fixed, the consent record date shall be, respectively, (i) if
prior action by the Board of Directors is required under the General
Corporation Law of Delaware for the consent to be validly taken, the close of
business on the day on which the Board of Directors adopts the resolution
taking such prior action; and (ii) if prior action by the Board of Directors
not so required, the first date on which a properly signed and dated consent
setting forth the action taken or proposed to be taken is delivered as
required above.
3.13 Presiding Officers: Order of Business. (a) Shareholders meetings shall be
presided over by the Chairman of the Board; or if the Chairman (and Vice
Chairman) is not present, by the President; or if the President is not
present, by a Vice President; or it Vice President is not present, by such
person chosen by the Board of Directors; or if none, by a chairperson to be
chosen at the meeting by shareholders present in person or by proxy who own a
majority of the voting power present. The Secretary of a shareholders meeting
shall be the Secretary of the Company; or if the Secretary is not present, an
Assistant Secretary; or if an Assistant Secretary is not present, such person
as may be chosen by the Board of Directors; or if none, by such person who is
chosen by the chairperson at the meeting.
(b) The following order of business, unless otherwise ordered at the
shareholders meeting by the chairperson thereof, shall be observed as far as
practicable and consistent with the purposes of the meet.:
1. Calling of the shareholders meeting to order.
2. Presentation of proof of mailing of the notice of the meeting and, if a
special meeting, the call thereof.
3. Presentation of proxies.
4. Determination and announcement that a quorum is present.
5. Reading and approval (or waiver thereof) of the minutes of the previous
meeting of shareholders.
6. Reports, if any, of officers.
7. Election of directors, if the meeting is an annual meeting or a meeting
called for such purpose.
8. Consideration of the specific purpose or purposes for which the meeting has
been called, other than election of directors.
9. Transaction of such other business as may properly come before the meeting.
10. Adjournment.
3.14 Annual Report. The President of the Company shall prepare an annual
report which will set forth a statement of affairs of the Company as of the
end of its last fiscal year, including a balance sheet, an income statement
and a statement of changes in financial position, which need not be audited,
and present them at the annual meeting of shareholders. Failure to prepare or
present an annual report shall not affect the validity of any shareholder
meeting. No such report need be prepared or presented for any fiscal year in
which the Company was inactive. This Section shall not apply as to any fiscal
<PAGE> 7
year if on the last day of such year the Company (i) had less than fifteen
(15) shareholders of record, or (ii) was subject to the reporting requirements
of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended to
date, and subsequently furnishes to the shareholders an annual report or
report on Form 10-K under such Act covering such fiscal year.
ARTICLE IV
Directors, Powers and Meetings
4.01 General Powers. All corporate powers shall be exercised, and the business
and affairs of the Company shall be managed, by or under the authority of its
Board of Directors, except as otherwise provided in the General Corporation
Law of Delaware or the Charter.
4.02 Number, Tenure and Qualifications. The Company's Board of Directors shall
consist of not less than three (3) and not more than seven (7) Directors, as
resolved from time to time by the Board of Directors. If such number is not so
fixed, the Company shall have three (3) Directors. Directors shall be elected
at each annual meeting of shareholders, except as otherwise provided below.
Each Director shall hold office until the next annual meeting of shareholders
and thereafter until his successor shall have been elected and duly qualified.
Directors need not be residents of Delaware or shareholders of the Company.
Directors shall be elected by plurality vote. No decrease in the number of
Directors shall shorten the term of any incumbent Director.
4.03 Vacancies: Resignation. (a) Any vacancy occurring in the Board of
Directors, except resulting from an increase in the number of directors, may
be filled by the affirmative vote of a majority of the remaining Directors,
though less than a quorum, or by a sole remaining Director. A Director elected
to fill a vacancy shall be elected for the unexpired term of his predecessor
in office. Any directorship to be filled by reason of an increase in the
number of Directors shall be filled by the affirmative vote of a majority of
the entire board or by a majority of the total voting power at any annual
meeting or at a special meeting of shareholders called for that purpose, or by
means of written shareholder consents taken in lieu of a meeting. Every
director chosen to fill a vacancy as provided in this Section shall hold
office until the next annual meeting of shareholders or until his successor
has been elected and qualified.
(b) Any Director may resign at any time by giving written notice to the Board,
the Chairman of the Board, the President or the Secretary of the Company.
Unless otherwise specified in such written notice, a resignation shall take
effect upon delivery to the Board or the designated officer. A resignation
need not be accepted in order for it to be effective.
4.04 Removal of Directors. Any Director may be removed only by the
shareholders in the manner provided in the Company's Charter and, if no such
provision appears therein, then as provided by law. Such action may be taken
at any special meeting called for that purpose or by means of written
shareholder consents. In case any vacancy so created shall not be filled by
the shareholders at such meeting or in the written consent effecting removal,
such vacancy may be filled by' a majority of the Board of Directors.
4.05 Place of Meetings. The Board of Directors may hold both regular and
special meetings either within or without the State of Delaware, at such place
as the Board of Directors from time to time deems advisable.
<PAGE> 8
4.06 Regular Meetings. A regular meeting of the Board of Directors shall be
held without other notice than these by-laws immediately after and at the same
place as the annual meeting of shareholders. The Board of Directors may
provide by resolution the time and place for the holding of additional regular
meetings without other notice than such resolution; provided, that any
Director not present when any such resolution is passed is given notice of the
resolution.
4.07 Special Meetings. A special meeting of the Board of Directors shall be
held without other notice than these by-laws immediately after and at the same
place as every special meeting of shareholders. Special meetings of the Board
of Directors also may be called by or at the request of the Chairman of the
Board, the President, or any two Directors upon two days' notice to each
director if such notice is delivered personally or sent by telegram, or upon
five days' notice if sent by mail.
4.08 Telephonic Meetings. One or more members of the Board of Directors or any
committee designated by the Board may participate in a meeting of the Board of
Directors or committee by means of conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear one another at the same time. Such participation shall constitute
presence in person at the meeting. All participants in any meeting of
Directors, by virtue of their participation and without further action on
their part, shall be deemed to have consented to the recording of such meeting
by electronic device or otherwise, and to the making of a written transcript
thereof, in order that minutes thereof shall be available for the Company's
records.
4.09 Notice. Except as otherwise provided above, notice of the time, date and
place, of every special meeting of Directors or any committee thereof shall be
given. Any Director may waive notice of any meeting. The attendance of a
Director at a meeting shall constitute a waiver of notice of such meeting,
except where a Director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
4.10 Quorum; Adjournments. A majority of the number of directors then in
office, present in person or by means of conference telephone or similar
equipment, shall constitute a quorum for the transaction of business at every
Board meeting, and the act of the majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors, except as may otherwise specifically be provided by law, the
Charter Or these By-Laws. If a quorum is not present at any Board meeting, the
directors present may adjourn the meeting, from time to time, without notice
other than announcement of the meeting, until a quorum is present.
4.11 Compensation. Directors shall be entitled to such compensation for their
services as directors as from time to time may be fixed by the Board and shall
be entitled to reimbursement of all reasonable expenses incurred by them in
attending Board meetings. A director may waive compensation for any Board
meeting. No director who receives compensation as a director shall be barred
from serving the Company in any other capacity or from receiving compensation
and reimbursement of reasonable expenses for any or all such other services.
4.12 Presumption of Assent. A Director of the Company who is present at a
meeting of the Board of Directors at which action on any corporate matter is
<PAGE> 9
taken shall be presumed to have assented to the action taken unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as the Secretary of
the meeting before the adjournment thereof, or shall forward such dissent by
registered or certified mail, first class, postage prepaid, to the Secretary
of the Company, provided such mailing is postmarked within ten calendar days
after the adjournment of the meeting. Such right to dissent shall not apply to
a Director who voted in favor of such action.
4.13 Action by Directors Without Meeting. Any action required to be taken at a
meeting of the Directors of the Company or of a committee of Directors or any
action which may be taken at such a meeting, may be taken without a meeting if
a consent in writing, setting forth the action so taken, shall be signed by
all of the Directors entitled to vote with respect to the subject matter
thereof. A consent shall be sufficient for this Section if it is executed in
counterparts, in which event all of such counterparts, when taken together,
shall constitute one and the same consent.
4.14 Bank Accounts. etc. Anything herein to the contrary notwithstanding, the
Board of Directors may, except as may otherwise be required by law, authorize
any officer or officers, agent or agents, in the name of and on behalf of the
Company, to sign checks, drafts, or other orders for the payment of money or
notes or other evidences of indebtedness, to endorse for deposit, deposit to
the credit of the Company at any bank or trust company or banking institution
in which the Company may maintain an account or to cash checks, notes, drafts,
or other bankable securities or instruments, and such authority may be general
or confined to specific instances, as the Board of Directors may elect.
4.15 Inspection of Records. Every Director shall have the absolute right at
any reasonable time to inspect all books, records, documents of every kind,
and the physical properties, of the Company and of its subsidiaries. Such
inspection may be made personally Or by an agent and includes the right to
make copies and extracts.
4.16 Executive Committee. (a) The Board of Directors may, by resolution
adopted by a majority of the whole Board, appoint two or more of its members
to constitute an Executive Committee. One of such directors shall be
designated as Chairman of the Executive Committee. Each member of the
Executive Committee shall continue as a member thereof until the expiration of
his term as a director, or until his earlier resignation from the Executive
Committee, in either case unless sooner removed as a director or member of the
Executive Committee by any means authorized by the Charter or herein.
(b) The Executive Committee shall have and may exercise, to the extent
provided in such resolution and except as prohibited by law, all of the
rights, power and authority of the Board of Directors.
(c) The Executive Committee shall fix its own rules of procedure and shall
meet at such times and at such place or places as may be provided by its
rules. The Chairman of the Executive Committee, or in the absence of the
Chairman, a member of the Executive Committee chosen by a majority of the
members present, shall preside at all meetings of the Executive Committee, and
another member thereof chosen by the Executive Committee shall act as
Secretary. A majority of the Executive Committee shall constitute a quorum for
the transaction of business, and the affirmative vote of a majority of the
members thereof shall be required for any action of the Executive Committee.
The Executive Committee shall keep minutes of its meetings and deliver such
minutes to the Board of Directors.
<PAGE> 10
4.17 Other Committees. The Board of Directors may, by resolution duly adopted
by a majority of directors at a meeting at which a quorum is present, appoint
an audit committee, compensation committee, and such other committee or
committees as it shall deem advisable and with such limited authority as the
Board of Directors shall from time to time determine.
4.18 Other Provisions Regarding Committees. (a) The Board of Directors shall
have the power at any time to fill vacancies in, change the membership of, or
discharge any committee. The members of any committee present at any meeting
of a committee, whether or not they constitute a quorum, may appoint a
director to act in the place of an absent member.
(b) Members of any committee shall be entitled to such compensation for their
services as such as from time to time may be fixed by the Board of Directors
and in any event shall be entitled to reimbursement of all reasonable expenses
incurred in attending committee meetings. Any member of a committee may waive
compensation for any meeting. No member of a committee who receives
compensation as a member of one or more committees shall be barred from
serving the Company in any other capacity or from receiving compensation and
reimbursement of reasonable expenses for any or all such other services.
(c) Unless otherwise prohibited by law, the provisions above concerning action
by written consent of directors and meetings of directors by telephonic or
similar means shall apply to all committees from time to time created by the
Board of Directors.
ARTICLE V
Officers
5.01 Positions. The Company's officers shall be chosen by the Board of
Directors and shall consist of a Chairman of the Board, a President, one or
more Vice Presidents if desired, a Secretary and a Treasurer. The Board of
Directors may appoint one or more Assistant Secretaries and/or Assistant
Treasurers and such other officers, assistant officers and agents as it from
time to time deems necessary or appropriate, who shall be chosen in such
manner and hold their offices for such terms and have such authority and
duties as from time to time may be determined by the Board of Directors. The
Board may delegate to the Chairman of the Board the authority to appoint any
officer or agent of the Company and to fill a vacancy other than the Chairman
of the Board or President. Any two or more offices may be held by the same
person, except that no person may simultaneously hold the offices of President
and Secretary and of President and Vice President. In all cases where the
duties of any officer, agent or employee are not prescribed by these by-laws
or by the Board of Directors, such officer, agent or employee shall follow the
orders and instructions of the President.
5.02 Term of Office: Removal. Each officer of the Company shall hold office at
the pleasure of the Board and any officer may be removed, with or without
cause, at any time by the affirmative vote of a majority of the directors then
in office, provided that any officer appointed by the Chairman of the Board
pursuant to authority delegated to the Chairman may be removed, with or
without cause, at any time by the Chairman whenever the Chairman in his or her
absolute discretion shall consider that the Company's best interests shall be
served by such removal. Removal of an officer by the Board (or the Chairman,
as the case may be) shall not prejudice the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not in
itself create contract rights.
<PAGE> 11
5.03 Vacancies. A vacancy in any office, however occurring, may be filled by
the Board of Directors or Executive Committee, for the unexpired portion of
the term by majority vote of its members, or by the Chairman of the Board in
the case of a vacancy occurring in an office to which -the Chairman has been
delegated authority to make appointments.
5.04 Compensation. The salaries of all officers of the Company shall be fixed
from time to time by the Board, and no officer shall be prevented from
receiving a salary by reason of the fact that he also receives compensation
from the Company in any other capacity.
5.05 Chairman of the Board. The Chairman of the Board, if such officer shall
be chosen by the Board of Directors, shall preside at all meetings of the
Board of Directors and meetings of shareholders at which he is present and
shall exercise general supervision and direction over the implementation of
Board policy affecting the affairs of the Company.
5.06 President. Unless otherwise designated by the Board of Directors, the
President shall be the Chief Executive Officer and Chief Operating Officer of
the Company. The President shall have general active management of the
business of the Company and general supervision of its officers, agents and
employees. In the absence of the Chairman of the Board, he shall preside at
all meetings of the shareholders and of the Board of Directors. In the absence
of a designated Chief Executive Officer (other than the president) he shall
see that all policies and directives of the Board of Directors are carried
into effect.
He shall, unless otherwise directed by the Board of Directors, attend in
person or by substitute appointed by him, or shall execute in behalf of the
Company written instruments appointing a proxy or proxies to represent the
Company, at all meetings of the stockholders of any other company in which the
Company shall hold any stock. He may, on behalf of the Company, in person or
by substitute or by proxy, execute written waivers of notice and consents with
respect to any such meetings. At all such meetings and otherwise, the
President, in person or by substitute or proxy as aforesaid, may vote the
stock so held by the Company and may execute written consent and other
instruments and power incident to the ownership of said stock, subject however
to the instructions, if any, of the Chairman or the Board of Directors. The
President shall have custody of the Treasurer's bond, if any.
5.07 Vice Presidents. The Vice Presidents, if any, including any Senior Vice
President or Executive Vice President, shall assist the President and shall
perform such duties as may be prescribed by the Board of Directors. In the
absence or disability of the President, the Vice President, if any (or if
there is more than one, the Vice Presidents in the order designated by the
Board of Directors, or in the absence of any such designation, in the order of
their election), shall exercise the powers and perform the duties of the
President.
5.08 Secretary. The Secretary shall: (i) keep the minutes of the proceedings
of the shareholders and the Board of Directors and record all votes and
proceedings thereof in a book kept for that purpose; (ii) see that all notices
are duly given in ac~ord~rce with the provisions of these By-Laws or as
required by law; ~ if) be custodian of the corporate records and of the seal
of the Company and affix the seal to all documents when authorized by the
Board of Directors; (iv) keep at its registered office or principal place of
business within or outside Delaware a record containing the names and
addresses of all shareholders and the number and class of shares held by each,
<PAGE> 12
unless such a record shall be kept at the office of the Company's transfer
agent or registrar; (v) sign with the President, or a Vice President,
certificates for shares of the Company, the issuance of which shall have been
authorized by resolution of the Board of Directors: (vi) have general charge
of the stock transfer books of the Company, unless the Company has a transfer
agent; and (vii) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the President or the Board of Directors. The Board of Directors may give
general authority to officers other than the Secretary or any Assistant
Secretary to affix the Company's seal and to attest the fixing thereof by his
or her signature.
5.09 Assistant Secretary. The Assistant Secretary, if any (or if there is more
than one, the Assistant Secretaries in the order designated, or in the absence
of any designation, in the order of their appointment), in the absence or
disability of the Secretary, shall perform the duties and exercise the powers
of the Secretary. The Assistant Secretary(ies) shall perform such other duties
and have such other powers as from time to time may be prescribed by the
Board.
5.10 Treasurer. The Treasurer shall be the principal financial officer and
principal accounting officer of the Company and shall have the care and
custody of all funds, securities, evidence of indebtedness and other valuable
effects of the Company, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Company and shall deposit all money
and other valuable effects of the Company in the name and to the credit of the
Company in such depositories as from time to time may be designated by the
Board. The Treasurer shall disburse the funds of the Company in such manner as
may be ordered by the Board from time to time and shall render to the Chairman
of the Board, the President and the Board, at regular Board meetings or
whenever any of them may so require, an account of all transactions and of the
Company's financial condition.
5.11 Assistant Treasurer. The Assistant Treasurer, if any (or if there is more
than one, the Assistant Treasurers in the order designated, or in the absence
of any designation, in the order of their appointment), in the absence or
disability of the Treasurer, shall perform the duties and exercise the powers
of the Treasurer. The Assistant Treasurer(s) shall perform such other duties
and have such other powers as from time to time may be prescribed by the
Board.
5.12 Chief Executive Officer: Chief Operating Officer. The Board of Directors
may, from time to time, designate the Chairman of the Board or the President
to be the Chief Executive Officer and designate the President to be the Chief
Operating Officer of the Company. If the Chairman is designated Chief
Executive Officer, the President shall automatically be designated the Chief
Operating Officer. A person designated to serve in either such capacity shall
serve at the pleasure of the Board of Directors.
A person designated Chief Executive Officer (CEO) shall haste primary
responsibility for the management and supervision of the Company's business.
In the event that the President is not the CEO, then the CEO shall supervise
the performance of the President and shall be responsible for the execution of
the policies and directives of the Board of Directors. The CEO shall report
directly to the Board of Directors. The CEO shall perform such other duties as
may be assigned by the Board of Directors.
<PAGE> 13
A person designated Chief Operating Officer (COO) shall be responsible for the
day-to-day management of the Company's operations. The COO shall report
directly to the CEO of the Company and shall consult with the CEO on all
matters of corporate policy and material business activity. The COO shall
perform such other duties as may be assigned by the Board of Directors or the
CEO.
ARTICLE VI
Indemnification
Every Director, officer, employee and agent of the Company, and every person
serving at the Company's request as a director, officer (or in a position
functionally equivalent to that of officer or director), employee or agent of
another corporation, partnership, joint venture, trust or other entity, shall
be indemnified to the extent and in the manner provided by the Company's
Charter, as it may be amended, and if no such provision appears therein, in
accordance with Delaware law.
ARTICLE VII
Miscellaneous
7.01 Declaration of Dividends. The Board of Directors at any regular or
special meeting may declare dividends payable, whenever in the exercise of its
discretion it may deem such declaration advisable and such is permitted by
law. Such dividends may be paid in cash, property, or shares of the Company.
7.02 Benefit Programs. Directors shall have the power to install and authorize
any pension, profit sharing, stock option, insurance, welfare, educational,
bonus, health and accident or other benefit program which the Board deems to
be in the interest of the Company, at the expense of the Company, and to amend
or revoke any plan so adopted.
7.03 Seal. The corporate seal of the Company shall be circular in form and
shall contain the name of the Company, the yeas of its incorporation and the
words "Seal, Delaware".
7.04 Fiscal Year. The Board of Directors shall have the power to fix, and from
time to time change, the fiscal year of the Company. Any such adoption of or
change in a fiscal year shall not constitute or require an amendment to these
By-laws.
ARTICLE VIII
Amendments To By-Laws
8.01 Manner of Amendment. These by-laws may be amended or repealed in the
manner provided for in the Charter, or if none is there provided: by majority
vote of the Board of Directors, taken at any meeting or by written consent,
subject to the shareholders' right to change or repeal any by-laws so made or
adopt new By-Laws by acts of at least two thirds (2/3) of the total voting
power. By-laws amendments may be proposed by any Director or shareholder.
8.02 Integration of Amendments. The Secretary or any assistant secretary of
the Company is authorized and empowered from time to time to compile these
By-Laws and integrate into them the text of any amendment or addition hereto,
so that any Section hereof thus affected reflects accurately and completely
all the amendments adopted through the date of any compilation. In every
subsequent compilation of these By-Laws, following the end of every Section or
subsection hereof which is added to these By-Laws or into which an amendment
<PAGE> 14
is integrated, there shall be added in brackets the words "Amended (date) ."
If a Section or subsection has been amended more than once, the date of each
amendment shall be given. Dates used shall be the dates of adoption, if no
effective date is specified at the time of adoption. Deletions need not be
shown in any such compilation and integration. Unless the adopting resolution
effecting an amendment specifies a numbering or renumbering of Sections, the
Secretary may number and renumber Sections existing after such amendment in
any logical fashion. The Secretary may, under seal of the Company, certify to
any such compilation of these By-Laws, provided that all additions and
amendments are reflected in conformity with this Section, and any such
certification shall represent the By-Laws of the Company as amended to the
date of certification.
ARTICLE IX
Notices
9.01 Giving of Notice. Except as otherwise provided by the General Corporation
Law of Delaware, these By-Laws, the Charter, or resolution of the Board of
Directors, every meeting notice o;- other notice, demand, bill, statement or
other communication (collectively, "Notice") to or from the Company from or to
a Director, Officer or shareholder shall be duly given if it is written or
printed and is (i) sent by first class mail or by overnight service of the
U.S. Postal Service, postage prepaid, (ii) sent by any commercial overnight
air courier service, such as DHL, Federal Express, Emery, Airborne, OP~ or
similar service, (iii) sent by telegraph, cablegram, telex, telecopier or
other facsimile transmission, (iv) delivered by any commercial messenger
service which regularly retains its receipts, or (v) personally delivered,
provided a receipt is obtained reflecting the date of delivery. Notice shall
not be duly given unless all delivery, postage or other charges are prepaid.
Notice shall be given to an addressee's most recent address as it appears on
the Company's records or to such other address as has been provided in writing
to the Secretary. A Notice shall be deemed "given" when dispatched for
delivery, when personally delivered, when transmitted electronically, or if
mailed, on the date postmarked. This Section shall not have the effect of
shortening any notice period provided for in these by-laws.
9.02 Waiver of Notice. Any Notice required or permitted by the General
Corporation Law of Delaware, the Charter or these by-laws may be waived in
writing at any time by the person entitled to the Notice, and such waiver
shall be equivalent to the giving of notice. Notice of any shareholder meeting
shall be waived by attendance, in person or by proxy, at the meeting, unless
any question of lack of or defect in a Notice is raised prior to conclusion of
a meeting. No waiver of notice of a meeting need specify the purpose of the
meeting or the business to be transacted thereat.
APPROVED AND ADOPTED by the Board of Directors as of November 30, 1989.
/S/ John A. Wise
/S/ Joseph S. Ventura
/S/ Gerald M. Haase
[SEAL]<PAGE>
<PAGE> 15
SECRETARY'S CERTIFICATION
I, the undersigned Secretary of this corporation, hereby certify that the
foregoing By-Laws were duly adopted by its Board of Directors on the date
above indicated and that the foregoing text of the By-Laws is currently in
full force and effect and has not keen revoked or suspended, nor amended
except as may be noted in brackets to indicate date(s) of amendment, and that
the foregoing text faithfully reflects all amendments through the date hereof.
Dated: November 30, 1989
/S/ Gerald M. Haase, Secretary
[SEAL]
<PAGE>
Exhibit No. 3 - SPECIMEN STOCK CERTIFICATE
NOT VALID UNLESS COUNTERSIGNED BY TRANSFER AGENT
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
- --0154---
--VOID--
IMMUNOTECHNOLOGY CORPORATION
Total Authorized Issue 50,000,000 Shares
50,000,000 Shares Common Stock 5,000,000 Shares
Preferred Stock
Par Value $0.00001 Each Par Value
$0.00001 Each
CUSIP NO. 45253M 20 9
Common Stock
This Certifies that ----------SPECIMEN-------------- is the
registered holder of --------------------VOID--------------------
Shares, fully paid and nonassessable shares of the Common Stock of
IMMUNOTECHNOLOGY CORPORATION transferable only on the books of the
Corporation by the holder hereof in person or by Attorney upon
surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate
to be signed by its duly authorized officers and its Corporate Seal
to be hereunto affixed this ----- day of ----------- A.D. 19xx.
/s/---------------------- [Corporate Seal]
/s/-------------------------
Secretary President
Countersigned:
Corporate Stock Transfer, Inc.
370 17th Street, Suite 2350
Denver, Colorado 80202
(303) 595-3300
By:----------------------
[ARTICLE] 5
[CIK] 0000789097
[NAME] IMMUNOTECHNOLOGY CORPORATION
<TABLE>
<S> <C> <C>
<C>
[PERIOD-TYPE] 9-MOS YEAR
YEAR
[FISCAL-YEAR-END] JUN-30-1998 JUN-30-1997
JUN-30-1996
[PERIOD-END] MAR-31-1998 JUN-30-1997
JUN-30-1996
[CASH] 952 505
0
[SECURITIES] 0 0
0
[RECEIVABLES] 0 0
0
[ALLOWANCES] 0 0
0
[INVENTORY] 0 0
0
[CURRENT-ASSETS] 952 505
0
[PP&E] 0 0
0
[DEPRECIATION] 0 0
0
[TOTAL-ASSETS] 952 505
0
[CURRENT-LIABILITIES] 18605 26,016
17,000
[BONDS] 0 0
0
[PREFERRED-MANDATORY] 0 0
0
[PREFERRED] 0 0
0
[COMMON] 134,332 134,332
134,332
[OTHER-SE] (191,500) (166,393)
(151,332)
[TOTAL-LIABILITY-AND-EQUITY] 952 505
0
[SALES] 0 0
0
[TOTAL-REVENUES] 0 0
0
[CGS] 0 0
0
[TOTAL-COSTS] 0 0
0
[OTHER-EXPENSES] 23,216 15,061
0
[LOSS-PROVISION] 0 0
0
[INTEREST-EXPENSE] 1,891 0
0
[INCOME-PRETAX] (25,107) (15,061)
0
[INCOME-TAX] 0 0
0
[INCOME-CONTINUING] 0 0
0
[DISCONTINUED] 0 0
0
[EXTRAORDINARY] 0 0
0
[CHANGES] 0 0
0
[NET-INCOME] (25,107) (15,061)
0
[EPS-PRIMARY] (0.02) (0.00)
0.00
[EPS-DILUTED] (0.02) (0.00)
0.00
</TABLE>
