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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
Registration Statement
Under
The Securities Act of 1933, as amended.
PHOENIX RESOURCES TECHNOLOGIES, INC.
(Exact name of registrant as specified in charter.)
NEVADA 84-1034982
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
15945 Quality Trail North
Scandia, Minnesota 55073
(651) 433-5753
(Address and telephone of executive offices, including zip code.)
1999 Nonqualifying Stock Option Plan
(File title of plan)
Ben Traub, President
Phoenix Resources Technologies, Inc.
15945 Quality Trail North
Scandia, Minnesota 55073
(651) 433-5753
(Name, address and telephone of agent for service)
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Conrad C. Lysiak, Esq.
601 West First Avenue
Suite 503
Spokane, Washington 99201
(509) 624-1475
In addition, pursuant to rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit
plan described herein.
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CALCULATION OF REGISTRATION FEE
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Title of Each
Aggregate
Class of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered Per Unit/Share Price [1] Fee [1]
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Common Shares,
$0.001 par value,
issuable upon
exercise of
stock options
by Grantees 900,000 $7.4375 $6,693,750 $1,813.50
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Totals 900,000 $7.4375 $6,693,750 $1,813.50
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[1] Based upon the mean between the closing bid and ask prices for
common shares on December 2, 1999, in accordance with Rule
457(c).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
Registration Statement and made a part hereof:
Form 10-K filed for the period ending October 31, 1998 and all
reports filed with the SEC subsequent thereto.
ITEM 4. DESCRIPTION OF SECURITIES.
We are authorized to issue 100,000,000 shares of $0.001 par value
common stock. 9,270,400 shares of common stock are outstanding.
You have traditional rights as to voting, dividends and
liquidation. All of our shares of common stock are entitled to one
vote on all matters. There are no pre-emptive rights and cumulative
voting is not allowed. Our common stock is not subject to redemption
and carries no subscription or conversion rights. In the event of our
liquidation you are entitled to share equally in corporate assets after
satisfaction of all liabilities. Copies of the Articles of
Incorporation and Bylaws are filed herewith. All of our shares
outstanding are fully paid and non-assessable.
Dividends
We have not paid any dividends and will probably not pay any
dividends in the future.
Transfer Agent
Our transfer agent and warrant agent is Signature Stock Transfer,
Inc., Office In The Park, 14675 Midway Road, Suite 211, Dallas, Texas
75244 and its telephone number is (972) 788-4193.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada Revised Statutes and certain provisions of the Company's
Bylaws under certain circumstances provide for indemnification of the
Company's Officers, Directors and controlling persons against
liabilities which they may incur in such capacities. A summary of the
circumstances in which such indemnification is provided for is
contained herein, but this description is qualified in its entirety by
reference to the Company's Bylaws and to the statutory provisions.
In general, any Officer, Director, employee or agent may be
indemnified against expenses, fines, settlements or judgments arising
in connection with a legal proceeding to which such person is a party,
if that person's actions were in good faith, were believed to be in the
Company's best interest, and were not unlawful. Unless such person is
successful upon the merits in such an action, indemnification may be
awarded only after a determination by independent decision of the Board
of Directors, by legal counsel, or by a vote of the shareholders, that
the applicable standard of conduct was met by the person to be
indemnified.
The circumstances under which indemnification is granted in
connection with an action brought on behalf of the Company is generally
the same as those set forth above; however, with respect to such
actions, indemnification is granted only with respect to expenses
actually incurred in connection with the defense or settlement of the
action. In such actions, the person to be indemnified must have acted
in good faith and in a manner believed to have been in the Company's
best interest, and have not been adjudged liable for negligence or
misconduct.
Indemnification may also be granted pursuant to the terms of
agreements which may be entered in the future or pursuant to a vote of
shareholders or Directors. The statutory provision cited above also
grants the power to the Company to purchase and maintain insurance
which protects its Officers and Directors against any liabilities
incurred in connection with their service in such a position, and such
a policy may be obtained by the Company.
ITEM 7. EXEMPTION FROM REGISTRATION.
None; not applicable.
ITEM 8. EXHIBITS.
Number Document Description
The following documents are incorporated herein by reference from
the Registrant's Form 8-K dated November 12, 1999 and filed with the
Securities and Exchange Commission:
99.1 Stock Acquisition Agreement.
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The following documents are incorporated herein:
3.1 Articles of Incorporation
3.2 Bylaws
3.3 Amended Articles of Incorporation
3.4 Amended Articles of Incorporation
4.1 Specimen Stock Certificate for Common Stock
5.1 Opinion of Conrad C. Lysiak, regarding the legality of the
securities registered under this Registration Statement.
10.1 Nonqualifying Stock Option Plan.
23.1 Consent of S.W. Hatfield, CPA.
23.2 Consent of Conrad C. Lysiak, Attorney at Law
99.2 Indemnification and Hold Harmless Agreement
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
1. to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
2. that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and,
3. to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended the Registrant certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-8 and
has duly caused this Registration Statement thereto to be signed on its
behalf by the undersigned, thereunto duly authorized on the 16th day of
December, 1999.
PHOENIX RESOURCES TECHNOLOGIES, INC.
BY: /s/ Ben Traub
Ben Traub, President
KNOW ALL MEN BY THESE PRESENT, that each person whose signature
appears below constitutes and appoints Ben Traub, as true and lawful
attorney-in-fact and agent, with full power of substitution, for his
and in his name, place and stead, in any and all capacities, to sign
any and all amendments to this Registration Statement, and to file the
same, therewith, with the Securities and Exchange Commission, and to
make any and all state securities laws or blue sky filings, granting
unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite or necessary to be
done in about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying the confirming all that
said attorney-in-fact and agent, or any substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement thereto has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Ben Traub President and a member December 16, 1999
Ben Traub of the Board of Directors
/s/ Robert Seitz
Robert Seitz Vice President and a December 16, 1999
member of the Board
of Directors
/s/ Judee Fayle Secretary/Treasurer, December 16, 1999
Judee Fayle Chief Financial Officer
and a member of the
Board of Directors
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EXHIBIT 3.1
ARTICLES OF INCORPORATION OF
HUGHES RESOURCES, INC.
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, desiring to form a corporation under the
Laws of the State of Nevada, do hereby associate ourselves together for
that purpose and adopt the following Articles of Incorporation.
ARTICLE I
The corporate name of the Corporation shall be: Hughes Resources,
Inc.
ARTICLE II
The principal place of business of this corporation shall be 4460
Interlaken Ct., Town of Reno, County of Washoe, State of Nevada, or at
such other place within or without the State of Nevada as may be
determined by the Board of Directors, and this corporation may hold its
meeting at such place or places as the Board of Directors may
designate.
ARTICLE III
The names and addresses of the incorporators are:
Omar A. Rizvi, Esq. John D. Forster
Attorney at Law 1221 North Kenneth Place
1001 North Pasadena, Ste. #8 Chandler, Arizona 85226
Mesa, Arizona 85201
ARTICLE IV
The name and address of the resident agent shall be:
Kenneth Kirschbaum
4460 Interlaken Court
Reno, Nevada 89509
ARTICLE V
The Governing Board shall be comprised of three Directors. The
names and addresses of the Initial Board of Directors of the Company
are as follows;
(1) James R. Ray (2) George W. Smith
8283 North Hayden, Ste. 128 524 Parkview Lane
Scottsdale, Arizona 85258 Richardson, Texas 75080-5166
(3) James E. Hughes, Sr.
Post Office Box 565
Newton, Texas 75966
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ARTICLE VI
The nature of the business and the objects and purposes to be
transacted, promoted and carried on are to do any or all the things
herein mentioned as fully and to the same extent as natural persons
might or could do, and in any part of the world, viz:
(a) To transact all lawful business for which a corporation may be
incorporated pursuant to the Nevada Corporations Code.
(b) To manufacture, purchase or otherwise acquire and to hold,
own, mortgage or otherwise lien, pledge, lease, sell, assign, exchange,
transfer, or in any manner dispose of, and to invest, deal and trade in
and with goods, wares, merchandise and personal property of any and
every class and description, within or without the State of Nevada.
(c) To acquire the goodwill, rights and property to undertake the
whole or any part of the assets and liabilities of any person, firm,
association or corporation; to pay for the same in cash, the stock of
the Corporation, bonds or otherwise; to hold or in any manner dispose
of the whole or any part of the property so purchased; to conduct in
any lawful manner the whole or any part of the business so acquires and
to exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(d) To guarantee purchase or otherwise acquire, hold, sell,
assign, transfer, mortgage, pledge or otherwise dispose of shares of
the capital stocks, bonds, or other evidence of indebtedness created by
other corporations and, while the holder of such stock, to exercise all
the rights and privileges of ownership, including the right to vote
thereon, to the same extent as a natural person might or could do.
(e) To purchase or otherwise acquire, apply for, register, hold,
use, sell or in any manner dispose of and to grant licenses or other
rights in and in any manner deal with patents, inventions,
improvements, processes, formulas, trademarks, trade names, rights and
licenses secured under, letters patent, copyright or otherwise.
(f) To enter into, make and perform contracts of every kind for
every lawful purpose, with any person, firm, association, corporation,
town, city, county, body politic, state, territory, government, colony
or dependency thereof.
(g) To borrow money for any of the purposes of the corporation and
to draw, make, accept, endorse, discount, execute, issue, sell, pledge
or otherwise dispose of promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or nonnegotiable,
transferable or nontransferable instruments and evidence of
indebtedness, and to secure payment thereof and the interest thereon by
mortgage or pledge, conveyance or assignment in trust of the whole or
any part of the property of the corporation at the time owned or
thereafter acquired.
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(h) To lend money to, or guarantee the obligations of, or to
otherwise assist the directors of the corporation or of any other
corporation the majority of whose voting capital stock is owned by the
corporation, upon the affirmative vote of at least a majority of the
outstanding shares entitled to vote for directors.
(i) To purchase, take, hold, deal in, mortgage, or otherwise
pledge, and to lease, sell, exchange, convey, transfer or in any manner
whatsoever dispose of real property, within or without the State of
Nevada.
(j) To purchase, hold, sell and transfer the shares of its
capital stock.
(k) To have one or more offices and to conduct any or all
operations and business and to promote its objects, within or without
the State of Nevada, without restrictions as to place or amount.
(l) to do any and all of the things herein set forth as principal,
agent, contractor, trustee, partner or otherwise, alone or in the
company with others.
(m) The object and purpose specified herein shall be regarded as
independent objects and purposes and, except where otherwise expressed,
shall be in no way limited or restricted by reference to or inference
from the terms of any other clauses or paragraph of these Articles of
Incorporation.
(n) The foregoing shall be construed both as objects and powers
and the enumeration thereof shall not be held to limit or restrict in
any manner the general powers conferred on this corporation by the laws
of the State of Nevada.
ARTICLE VII
The aggregate number of shares which this Corporation shall have
the authority to issue is twenty-six million, five hundred ninety-five
thousand, seven hundred forty-four (26,595,744) shares of $0.001 par
value each, which shares shall be designated "Common Stock"; and ten
million (10,000,000) shares of $0.001 par value each, which shares
shall be designated "Preferred Stock" and which may be issued in one or
more series at the discretion of the Board of Directors. In
establishing a series, the Board of Directors shall give to it a
distinctive designation so as to distinguish it from the shares of all
other series and classes, shall fix the number of shares in such
series, and the preferences, rights and restrictions, thereof. All
shares of any one series shall be alike in every particular manner
except as otherwise provided by these Articles of Incorporation or the
Corporation Laws of Nevada.
ARTICLE VIII
The corporation shall have perpetual existence.
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ARTICLE IX
The governing board of this corporation shall be known as
directors, and the number of the directors may from time to time be
increased or decreased in such manner as shall be provided by the
Bylaws of this corporation, provided, however, that the initial Board
of Directors shall consist of three persons. So long as the number of
directors shall be less than three, no shares of this corporation may
be issued and held of record by more shareholders than there are
directors Any shares issued in violation of this paragraph shall be
null and void. In the event that there are less than three directors,
this provision shall also constitute a restriction of the transfer of
shares and a legend shall be conspicuously placed on each certificate
respecting shares preventing transfer of the shares to more
shareholders than there are directors.
In furtherance and not in limitation of these powers conferred by
statute, the Board of Directors is expressly authorized:
To manage and govern the corporation by majority vote of members
present at any regular or special meeting at which a quorum shall be
present unless the act of a greater number is required by the laws of
the state of incorporation, these Articles or the Bylaws of the
corporation.
To make, alter, or amend the Bylaws of the corporation at any
regular or special meeting.
To fix the amount to be reserved as working capital over and above
its capital stock paid in, to authorize and cause to be executed
mortgages and liens upon the real and personal property of the
corporation.
To designate one or more committees, each committee to consist of
two or more of the directors of the corporation, which to the extent
provided in the resolution or in the Bylaws of the corporation, shall
have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the corporation. Such
committee or committees shall have such name or names as may be stated
in the Bylaws of the corporation or as may be determined from time to
time by resolution adopted by the Board of Directors.
The Board of Directors shall have the power and authority to sell,
lease, exchange, or otherwise dispose of all or substantially all of
the property or assets of the corporation, if in the usual and regular
course of business, upon such terms and conditions as the Board of
directors may determine without vote or consent of the shareholders.
The Board of Directors shall have the power and authority to sell,
lease, exchange, or otherwise dispose of all or substantially all of
the property or assets of the corporation, including its goodwill, if
not in the usual or regular course of its business upon such terms and
conditions as Board of Directors may determine, provided that such sale
shall be authorized or ratified by the affirmative vote of the
shareholders of at least a majority of the of the shares entitled to
vote thereon at a shareholder's meeting called for that purpose, or
when authorized or ratified by the written consent of all the
shareholders of the shares entitled to vote thereon.
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The Board of Directors shall have the power and authority to
merger or consolidate the corporation upon such terms and conditions as
the Board of Directors may authorize, provided that such merger or
consolidation is approved or ratified by the affirmative vote of the
shareholders of at least a majority of the of the shares entitled to
vote thereon at a shareholders meeting called for that purpose, or when
authorized or ratified by the written consent of all the shareholders
of the shares entitled to vote thereon.
The corporation shall be dissolved upon the affirmative vote of
the shareholders of at least a majority of the of the shares entitled
to vote thereon at a shareholder's meeting called for that purpose, or
when authorized or ratified by the written consent of all the
shareholders of the shares entitled to vote thereon.
The corporation shall revoke voluntary dissolution proceedings
upon the affirmative vote of the shareholders of at least a majority of
the of the shares entitled to vote thereon at a undertaking by or on
behalf of the director, officer, employee or agent to repay such
amount, unless it shall ultimately be determined that he is entitled to
be indemnified by the corporation as authorized in this Article.
(f) The Board of Directors may exercise the corporation's power to
purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise, against any liability asserted against him
and incurred by him 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 this Article.
(g) The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under these Articles of Incorporation,
the Bylaws, agreements, vote of the shareholders or disinterested
directors, or otherwise, both as to the action in his official capacity
and as to another 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
and personal representatives of such a person.
ARTICLE XII
Whenever a compromise or arrangement is proposed by the
corporation between it and its creditors or any class of them, and/or
between said corporation and its shareholders or any class of them, any
court of equitable jurisdiction may, on the application in a summary
way by said corporation, or by a majority of its stock, or on the
application of any receiver or receivers appointed for said
corporation, or on the application of trustees in dissolution, order a
meeting of the creditors or a class of the creditors and/or of the
shareholders or a class of the shareholders of said corporation, as the
case may be, to be notified in such a manner as the said court decides.
If a majority in number, representing at least three-fourths in amount
of the creditors or class of creditors, and/or the holders of the
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majority of the stock or class of stock of said corporation, as the
case may be, agree to any compromise or arrangement and/or to any
recognition of said corporation, as a consequence of such compromise or
arrangement, the said compromise or arrangement and/or the said
recognition shall, if sanctioned by the court to which the said
application has been made, be binding upon all the creditors or class
of creditors, and/or on all the shareholders or class of shareholders
of said corporation, as the case may be, and also on said corporation.
ARTICLE XIII
No shareholder in the corporation shall have the preemptive right
to subscribe to any or all additional issues of stock and/or other
securities of any or all classes of this corporation or securities
convertible into stock or carrying stock purchase warrants, options or
privileges.
ARTICLE XIV
Meetings of the shareholders may be held at such time and place as
the Bylaws shall provide. At all meetings of the shareholders, one-
third of all shares entitled to vote shall constitute a quorum.
ARTICLE XV
Cumulative voting shall not be allowed.
ARTICLE XVI
These Articles of Incorporation may be amended by resolution of
the Board of Directors if no shares have been issued, and if shares
have been issued, by an affirmative vote of the shareholders of at
least a majority of the shares entitled to vote thereon at a meeting
called for that purpose, or, when authorized, when such action is
ratified by the written consent or all the shareholders of the
shareholders entitled to vote thereon.
ARTICLE XVII
Any action for which the Nevada Statutes require the approval of
two-thirds of the shares of any class or series entitled to vote with
respect thereto, unless otherwise provided in the Articles of
Incorporation, shall require for approval the affirmative vote of a
majority of the shares of any class or series outstanding and entitled
to vote thereon.
ARTICLE XVIII
No director shall be personally liable to the corporation or any
shareholder for monetary damages for breach of fiduciary duty as a
director, except for any matter in respect of which such director shall
be liable under the Laws of the State of Nevada, or any amendments
thereto or successor provision thereto and except for any matter in
respect of which such director shall be liable by reason that he (i)
has breached his duty of loyalty to the corporation or its
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shareholders, (ii) has not acted in good faith or, in failing to act,
has not acted in good faith, (iii) has acted in a manner involving
intentional misconduct or a knowing violation of the law or, in failing
to act, has acted in a manner involving intentional misconduct or a
knowing violation of law, or (iv) has derived an improper personal
benefit. Neither the amended nor repeal of this Article XVIII, nor the
adoption of any provisions of the Articles of Incorporation
inconsistent with this Article XVIII, shall eliminate or reduce the
affect of this Article XVIII in respect of any manner occurring, or any
cause of action, suitor claim that, but for this Article XVIII would
accrue or arise prior to such amendment, repeal or adoption of an
inconsistent provision.
On behalf of Hughes, Resources, Inc. Omar A. Rizvi and John D.
Forster by his signature below, do hereby confirm, under penalties of
perjury, that the foregoing Articles of Incorporation of Hughes
Resources, Inc. constitute the act and deed of Hughes Resources, Inc.
and that the facts stated herein are true.
Hughes Resources, Inc.
BY: /s/ Omar A. Rizvi, Incorporator
BY: /s/ John D. Forster, Incorporator
STATE OF ARIZONA )
) ss.
County of Maricopa )
BEFORE ME, The undersigned authority, a Notary Public, on this day
Omar A. Rizvi and John D. Forster personally appeared to me (or on the
basis of satisfactory evidence) to be the person(s) and officer(s)
whose name(s) are subscribed to the foregoing instrument, and
acknowledged to me that they executed the same as a duly authorized
officer/incorporator of such corporation, for the purpose and
consideration therein expressed, in the capacity therein stated and as
the act and deed of such corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 7th day of July, 1995.
/s/ Josiah M. Sirrine
Notary Public, State of Arizona
My Commission Expires:
October 27, 1996
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PHEONIX RESOURCES TECHNOLOGIES, INC.
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office shall be 4460 Interlaken Ct.,
Town of Reno, County of Washoe, State of Nevada.
Section 2. The Corporation may also have offices at such other
places both within and without the State of Nevada as the Board of
Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time
by the Board of Directors, or at such other place either within or
without the State of Minnesota as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time
and place, within or without the State of Minnesota, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders, commencing with the
year 1995, shall be held on the first Monday of July, if not a legal
holiday, and if a legal holiday, then on the next secular day
following, at 10:30 a.m., or at such other date and time as shall be
designated from time to time by the Board of Directors and stated in
the notice of the meeting, at which they shall elect by a plurality
vote a Board of Directors, and transact such other business as may
properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating place,
date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten or more than sixty
days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the
name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or
if not so specified, at the place where the meeting is to be held. The
list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
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Section 5. Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statue or by the Articles
of Incorporation, may be called by the president and shall be called by
the president or secretary at the request in writing of a majority of
the Board of Directors, or at the request in writing of stockholders
owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty
days before the date of the meeting, to each stockholder entitled to
vote at such meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock present and
outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise
provided by statute or by the certificate of incorporation. Such quorum
present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the
meeting as originally notified, If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be give
to each stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before
such meeting, unless the question is one upon which by express
provision of the statutes or of the certificate of incorporation, a
different vote is required in which case such express provision shall
govern and control the decision of such question.
Section 10. Unless otherwise provided in the Articles of
Incorporation each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each
share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its
date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the Articles of
Incorporation, any action required to be taken at any annual or special
meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of such
stockholders, 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 the holders of outstanding stock having not
<PAGE> 16
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. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the
whole board shall be not less than three nor more than ten. The first
board shall consist of at least three directors. Thereafter, within the
limits above specified, the number of directors shall be determined by
resolution of the Board of Directors or by the stockholders at the
annual meeting. The directors shall be elected at the annual meeting of
the stockholders, except as provided in
Section 2 of this Article, and each director elected shall hold office
until his successor is elected and qualified. Directors need not be
stockholders.
Section 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen
shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced.
If there are no directors in office, then an election of directors may
be held in the manner provided by statute. If, at any time of filling
any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as
constituted immediately prior to any such increase), a Court of
appropriate jurisdiction may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the
shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill such
vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its Board of Directors which may exercise all
such powers of the corporation and do all such lawful acts and things
as are not by statute or by the certificate of incorporation or by
these by-laws directed or required to be exercised or done by the
stockholders.
MEETINGS OF THE Board of Directors
Section 4. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State
of Nevada.
<PAGE> 17
Section 5. The first meeting of each newly elected Board of
Directors shall be held at such time and place as shall be fixed by the
vote of the stockholders at the annual meeting and no notice of such
meeting shall be necessary to the newly elected directors in order
legally to constitute the meeting, provided a quorum shall be present.
In the event of the failure of the stockholders to fix the time or
place of such first meeting of the newly elected Board of Directors, in
the event such meeting is not held at the time and place so fixed by
the stockholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in
a written waiver signed by all of the directors.
Section 6. Regular meetings of the Board of Directors may be held
without notice, at such time and at such place as shall from time to
time be determined by the board.
Section 7. Special meetings of the board may be called by the
president without notice to each director; special meetings shall be
called by the president or secretary in like manner and on like notice
on the written request of two directors unless the board consists of
only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the
written request of the sole director.
Section 8. At all meetings of the board, a majority of the
directors shall constitute a quorum for the transaction of business and
the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the certificate
of incorporation. If a quorum shall not be present at any meeting of
the Board of Directors the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the Articles of
Incorporation or these by-laws, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all members of the board or
committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the
board or committee.
Section 10. Unless otherwise restricted by the Articles of
Incorporation or these by-laws, members of the Board of Directors, or
any committee designated by the Board of Directors may participate in
a meeting of the Board of Directors, or any committee, by means of
conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
such participation in a meeting shall constitute presence in person at
the meeting.
<PAGE> 18
COMMITTEES OF DIRECTORS
Section 11. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business
and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to
amending the Articles of Incorporation (except that a committee may, to
the extent authorized in the resolution or resolutions providing for
the issuance of shares of stock adopted by the Board of Directors, fix
any of the preferences or fights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation
or the conversion into, or the exchange of such shares for, shares of
any other class or classes or any other series of the same or any other
class or classes of stock of the corporation), adopting an agreement of
merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's
property and assets, recommending to the stockholders a dissolution of
the corporation or a revocation of a dissolution, or amending the by-
laws of the corporation; and, unless the resolution or the Articles of
Incorporation expressly so provide, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance
of stock or to adopt a certificate of ownership and merger. Such
committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of
Directors.
Section 12. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the Articles of
Incorporation or these by-laws, the Board of Directors shall have the
authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting
of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor. Members of special
or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE> 19
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the Articles of
Incorporation or by law, any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of
shares entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of
the Articles of Incorporation or of these by-laws, notice is required
to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it
appears on the records of the corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Articles of Incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
Board of Directors and shall be a president, a vice-president, a
secretary and a treasurer. The Board of Directors may also choose
additional vice-presidents, and one or more assistant secretaries and
assistant treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these by-laws
otherwise provide.
Section 2. The Board of Directors, at its first meeting after each
annual meeting of stockholders, shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The Board of Directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors.
<PAGE> 20
THE PRESIDENT
Section 6. The president shall be the chief executive officer of
the corporation, shall preside at all meetings of the stockholders and
the Board of Directors, shall have general and active management of the
business of the corporation and shall See that all orders and
resolutions of the Board of Directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiting a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there
be more than one vice-president, the vice-presidents in the order
designated by the directors, or in the absence of any designation, then
in the order of their election) shall perform the duties of the
president, and when so acting, shall have all powers of and be subject
to all the restrictions upon the president. The vice-presidents shall
perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the Board of
Directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such
other duties as may be prescribed by the Board of Directors or
president, under whose supervision he shall be. He shall have custody
of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature
or by the Signature of such assistant secretary. The Board of Directors
may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the secretary or in the event
of his inability or refusal to act, perform the duties and exercise the
powers of the secretary and shall perform such other dudes and have
such other powers as the Board of Directors may from time to time
prescribe.
<PAGE> 21
THE TREASURER AND ASSISTANT TREASURER
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to
the credit of the corporation in such depositories as may be designated
by the Board of Directors.
Section 12. He shall disburse the funds of the corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of
Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as treasurer and of the
financial condition of the corporation.
Section 13. If required by the Board of Directors, he shall give
the corporation a bond (which shall be renewed every six years) in such
sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his
office and for the restoration of the corporation, in case of his
death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the Board
of Directors (or if there be no such determination, then in the order
of their election) shall, in the absence of the treasurer or in the
event of his inability or refusal to act, perform the duties and
exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the Board of Directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
a certificate or shall be uncertificated. Certificates shall be signed
by, or in the name of the corporation by, the chairman or vice-
chairman of the Board of Directors, or the president or a vice-
president and the treasurer or the secretary or an assistant secretary
of the corporation.
Upon the face or back or each stock certificate issued to represent any
partly paid shares, or upon the books and records of the corporation in
the case of uncertified partly paid shares, shall be set forth the
total amount of the consideration to be paid therefor and the amount
paid thereon shall be stated.
Within a reasonable time after the issuance or transfer of
uncertified stock, the corporation shall send to the registered owner
thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to applicable state statue, or
a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and
<PAGE> 22
relative participating, optional or other special fights of each class
of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any
certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock
to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates or uncertificated shares, the Board of
Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority
to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its books. Upon receipt of proper
transfer instructions from the registered owner of uncertificated
shares such uncertificated shares shall be cancelled and issuance of
new equivalent uncertificated shares or certificated shares shall be
made to the person entitled thereto and the transaction shall be
recorded upon the books of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty days nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other
<PAGE> 23
action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix
a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of
shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the pan of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Nevada.
ARTICLE VII
GENERAL PROVISIONS DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the Articles of Incorporation, if any, may
be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the
Articles of Incorporation.
Section 2. Before payment of any dividend, there may be set aside
out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of
the corporation, or for such other purpose as the directors shall think
conducive to the interest of the corporation, and the directors may
modify or abolish any such reserve in the manner in which it was
created.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each meeting,
and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and
condition of the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time
designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
<PAGE> 24
SEAL
Section 6. The corporation shall not have a corporate seal. The
Board may elect at any time to have a corporate seal in which event the
corporation shall have inscribed thereon the name of the corporation,
the year of its organization and the words "Corporate Seal, Minnesota."
The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers,
directors, employees and agents to the extent permitted by Nevada law.
ARTICLE VIII
Section 1. These by-laws may be altered, amended or repealed or
new by-laws may be adopted by the stockholders or by the Board of
Directors, when such power is conferred upon the Board of Directors by
the Articles of Incorporation at any regular meeting of the
stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be contained in the notice
of such special meeting. If the power to adopt, amend or repeal by-laws
is conferred upon the Board of Directors by the Articles of
Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
Attest
/s/ George Smith Secretary
<PAGE> 25
EXHIBIT 3.3
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION OF
HUGHES RESOURCES, INC.
Pursuant to the Revised Corporate Statutes of the State of
Nevada, the undersigned corporation adopts the following Articles
of Amendment to the Articles of Incorporation:
1. Statement of Amendment. The amendment alters or changes
Article I of the original Articles of Incorporation, filed with
the State of Nevada on July 7, 1995, to read as follows:
ARTICLE I
The name of the corporation shall be: Phoenix Resources
Technologies Inc.
2. Adoption of the Amendment. The Amendment to Article I of
the original Articles of Incorporation of Hughes Resources, Inc.
was approved, in accordance with Section 78.385 and Section
78.390 of the Revised Corporate Statutes of the State of Nevada,
by a proper stockholder vote on January 31, 1996.
Executed this _____ day of _____________, 1996.
Phoenix Resources Technologies Inc.
BY: /s/ James R. Ray, President
BY: /s/ George Smith, Secretary
Page 1 of 2
<PAGE>
<PAGE> 26
STATE OF TEXAS )
) ss.
County of Newton )
BEFORE ME, The undersigned authority, a Notary Public, on
this day personally appeared James Ray, President of Phoenix
Resources Technologies, Inc., a Nevada Corporation, known to me
(or on the basis of satisfactory evidence) to be the person(s)
and officer(s) whose name(s) is (are) subscribed to the foregoing
instrument, and acknowledged to me that he (they) executed the
same as duly authorized officer(s) of such corporation, for the
purpose and consideration therein expressed, in the capacity
therein stated and as the act and deed of such corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1st day of
February, 1996.
/s/ La Juana Renfro
Notary Public, State of Texas
My Commission Expires
July 2, 1997
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public, on
this day personally appeared George Smith, Secretary of Phoenix
Resources Technologies, Inc., a Nevada Corporation, known to me
(or on the basis of satisfactory evidence) to be the person(s)
and officer(s) whose name(s) is (are) subscribed to the foregoing
instrument, and acknowledged to me that he (they) executed the
same as duly authorized officer(s) of such corporation, for the
purpose and consideration therein expressed, in the capacity
therein stated and as the act and deed of such corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 5th day of
February, 1996.
/s/ James R. Chiles, Jr.
Notary Public, State of Texas
My Commission Expires:
May 10, 1997
Page 2 of 2
<PAGE> 27
EXHIBIT 3.4
ARTILCES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION OF
PHEONIX RESOURCES TECHNOLOGIES, INC.
Pursuant to the Revised Corporate Statutes of the State of
Nevada, the undersigned corporation adopts the following Articles of
Amendment to the Articles of Incorporation:
1. Statement of Amendment: The amendment alters Article VII of
the original Articles of Incorporation, filed with the State of
Nevada on July 7, 1995
ARTICLE VII
The aggregate number of shares which the Corporation shall
have the authority to issue is One Hundred Million shares
(100,000,000) of $0.001 par value each, which shares shall be
designated "Common Stock" and ten million (10,000,000) shares of
$0.001 par value each, which shares shall be designated
"Preferred Stock" and which may be issued in one or series at
the desecration of the Board of Directors. In establishing a
series, the Board of Directors shall give to it a distinctive
designation so as to distinguish it from the shares of all other
series and classes; shall fix the number of shares in such
series, and the preferences, rights and restrictions thereof.
All shares of say one series shall be alike in every particular
manner except as otherwise provided by these Articles of
Incorporation or the Corporate Laws of Nevada.
2. Adoption of the Amendment. The Amendment to Article VII of
the Original Articles of Incorporation was approved, in accordance
with Section 78.385 and Section 78.390 of the Revised Corporate
Statutes of the State of Nevada, by proper shareholder vote on
October 2, 1999.
Executed this 4th day of October, 1999.
PHOENIX RESOURCES TECHNOLOGIES, INC.
BY: /s/ William C. Nichols, President
BY: /s/ Paula Nichols, Secretary
<PAGE>
<PAGE> 28
STATE OF MINNESOTA )
) ss.
County of Drew Winds )
Before me, the undersigned, Notary Public, on this day
personally appeared William C. Nichols, President, and Paul Nichols,
Secretary, of Phoenix Resources Technologies, Inc., a Nevada
Corporation, known to me to be the persons and officers whose names
are subscribed to the foregoing instrument, and acknowledged to me
that they executed the same as the duly authorized officers of such
corporation, for the purposes and consideration therein expressed, in
the capacity therein stated and as the act and deed of such
corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 4th day of October,
1999.
/s/ JoAnn M. Rehberger, Notary Public
Seal
<PAGE> 30
EXHIBIT 4.1
STOCK CERTIFICATE
This certificate reflects New Post Split Shares of
PHOENIX RESOURCES TECHNOLOGIES, INC.
Subject to a 1 New Share for 100 Old Shares Reverse Stock Split
Effective Date - October 14, 1999
New Cusip No. 719131 20 3
Number Shares
[ ] [ ]
PHOENIX RESOURCES TECHNOLOGIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA
PAR VALUE $0.001 NEW CUSIP NO.
COMMON STOCK 719131 20 3
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK PAR VALUE OF
$0.001 EACH OF
PHOENIX RESOURCES TECHNOLOGIES, INC.
transferable on the books of the Corporation in person or by duly
authorized attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned by the
Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signature of its duly authorized officers.
_____________________ Dated _______________________
President Countersigned and Registered:
IDATA INC.
_____________________ Seal (Dallas, Texas) Transfer Agent
Secretary Successor Transfer Agent
SIGNATURE STOCK TRANSFER, INC.
_____________________________
Authorized Signature
<PAGE> 31
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ________ Custodian __________ under Uniform
Gifts to Minors Act ___________
Additional abbreviations may also be used though not in the above list.
For Value Received _______________ hereby sell, assign and transfer
unto [ ] Please insert social security or some other
identifying number of assignee.
_____________________________________________________________________
Please print or typewrite name and address of assignee
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_______________ Shares of the Capital Stock represented by the within
Certificate, and do hereby irrevocably constitute and appoint _______
_____________________ Attorney to transfer the said Stock on the books
of the within-named Corporation with full power of substitution in the
premises.
Dated _____________________
_______________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE, IN
EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT, OR ANY CHANGE WHATEVER.
_____________________________
SIGNATURE GUARANTEE
(BY: BANK, CORPORATE OFFICER)
<PAGE> 32
EXHIBIT 5.1
CONRAD C. LYSIAK
Attorney and Counselor at Law
601 West First Avenue
Suite 503
Spokane, Washington 99201
(509) 624-1478
FAX (509) 747-1770
December 16, 1999
Phoenix Resources Technologies, Inc.
15945 Quality Trail North
Scandia, Minnesota 55073
RE: Registration Statement on Form S-8 (S.E.C.
File No. 333- _________) covering the
Public Offering of Common Shares
Gentlemen:
I have acted as counsel for Phoenix Resources Technologies,
Inc. (the "Company"), in connection with registration by the
Company of an aggregate of 900,000 Common Shares, par value
$0.001 per share, underlying Options issued to employees,
directors and/or officers of the Company (the "Options"), all as
more fully set forth in the Registration Statement on Form S-8 to
be filed by the Company.
In such capacity, I have examined, among other documents,
the Articles of Incorporation, as amended, Bylaws and minutes of
meetings of its Board of Directors and shareholders, and the
Non-Qualifying Stock Option Plan of the Company.
Based upon the foregoing, and subject to such further
examinations as I have deemed relevant and necessary, I am of the
opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Nevada.
2. The Options and underlying Common Shares have been
legally and validly authorized under the Articles of
Incorporation, as amended, of the Company, and when issued and
paid for upon exercise of the Options, the Common Shares
underlying the Options will constitute duly and validly issued
and outstanding, fully paid and nonassessable, Common Shares of
the Company.
Yours truly,
/s/ Conrad C. Lysiak
Conrad C. Lysiak
<PAGE> 33
EXHIBIT 10.1
PHOENIX RESOURCES TECHNOLOGIES, INC.
1999 NONQUALIFYING STOCK OPTION PLAN
ARTICLE I
Purpose of Plan
This 1999 NONQUALIFYING STOCK OPTION PLAN (the "Plan") of Phoenix
Resources Technologies, Inc. (the "Company") for persons employed or
associated with the Company, including without limitation any employee,
director, general partner, officer, attorney, accountant, consultant or
advisor, is intended to advance the best interests of the Company by
providing additional incentive to those persons who have a substantial
responsibility for its management, affairs, and growth by increasing
their proprietary interest in the success of the Company, thereby
encouraging them to maintain their relationships with the Company.
Further, the availability and offering of Stock Options under the Plan
supports and increases the Company's ability to attract, engage and
retain individuals of exceptional talent upon whom, in large measure,
the sustained progress growth and profitability of the Company for the
shareholders depends.
ARTICLE II
Definitions
For Plan purposes, except where the context might clearly indicate
otherwise, the following terms shall have the meanings set forth below:
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
"Committee" shall mean the Compensation Committee, or such other
committee appointed by the Board, which shall be designated by the
Board to administer the Plan. The Committee shall be composed of two
or more persons as from time to time are appointed to serve by the
Board and may be members of the Board.
"Common Shares" shall mean the Company's Common Shares $0.0001 par
value per share, or, in the event that the outstanding Common Shares
are hereafter changed into or exchanged for different shares or
securities of the Company, such other shares or securities.
"Company" shall mean PHOENIX RESOURCES TECHNOLOGIES, INC., a
Nevada corporation, and any parent or subsidiary corporation of PHOENIX
RESOURCES TECHNOLOGIES, INC., as such terms are defined in Section
425(e) and 425(f), respectively of the Code.
"Optionee" shall mean any person employed or associated with the
affairs of the Company who has been granted one or more Stock Options
under the Plan.
"Stock Option" or "NQSO" shall mean a stock option granted
pursuant to the terms of the Plan.
<PAGE> 34
"Stock Option Agreement" shall mean the agreement between the
Company and the Optionee under which the Optionee may purchase Common
Shares hereunder.
ARTICLE III
Administration of the Plan
1. The Committee shall administer the plan and accordingly, it
shall have full power to grant Stock Options, construe and interpret
the Plan, establish rules and regulations and perform all other acts,
including the delegation of administrative responsibilities, it
believes reasonable and proper.
2. The determination of those eligible to receive Stock Options,
and the amount, price, type and timing of each Stock Option and the
terms and conditions of the respective stock option agreements shall
rest in the sole discretion of the Committee, subject to the provisions
of the Plan.
3. The Committee may cancel any Stock Options awarded under the
Plan if an Optionee conducts himself in a manner which the Committee
determines to be inimical to the best interest of the Company and its
shareholders as set forth more fully in paragraph 8 of Article X of the
Plan.
4. The Board, or the Committee, may correct any defect, supply
any omission or reconcile any inconsistency in the Plan or in any
granted Stock Option, in the manner and to the extent it shall deem
necessary to carry it into effect.
5. Any decision made, or action taken, by the Committee or the
Board arising out of or in connection with the interpretation and
administration of the Plan shall be final and conclusive.
6. Meetings of the Committee shall be held at such times and
places as shall be determined by the Committee. A majority of the
members of the Committee shall constitute a quorum for the transaction
of business, and the vote of a majority of those members present at any
meeting shall decide any question brought before that meeting. In
addition, the Committee may take any action otherwise proper under the
Plan by the affirmative vote, taken without a meeting, of a majority of
its members.
7. No member of the Committee shall be liable for any act or
omission of any other member of the Committee or for any act or
omission on his/her own part, including, but not limited to, the
exercise of any power or discretion given to him/her under the Plan
except those resulting from his/her own gross negligence or willful
misconduct.
8. The Company, through its management, shall supply full and
timely information to the Committee on all matters relating to the
eligibility of Optionees, their duties and performance, and current
information on any Optionee's death, retirement, disability or other
termination of association with the Company, and such other pertinent
<PAGE> 35
information as the Committee may require. The Company shall furnish
the Committee with such clerical and other assistance as is necessary
in the performance of its duties hereunder.
ARTICLE IV
Shares Subject to the Plan
1. The total number of shares of the Company available for
grants of Stock Options under the Plan shall be 900,000 Common Shares,
subject to adjustment as herein provided, which shares may be either
authorized but unissued or reacquired Common Shares of the Company.
2. If a Stock Option or portion thereof shall expire or
terminate for any reason without having been exercised in full, the
unpurchased shares covered by such NQSO shall be available for future
grants of Stock Options.
ARTICLE V
Stock Option Terms and Conditions
1. Consistent with the Plan's purpose, Stock Options may be
granted to any person who is performing or who has been engaged to
perform services of special importance to management in the operation,
development and growth of the Company.
2. Determination of the option price per share for any stock
option issued hereunder shall rest in the sole and unfettered
discretion of the Committee.
3. All Stock Options granted under the Plan shall be evidenced
by agreements which shall be subject to applicable provisions of the
Plan, and such other provisions as the Committee may adopt, including
the provisions set forth in paragraphs 2 through 11 of this Article V.
4. All Stock Options granted hereunder must be granted within
ten years from the date this Plan is adopted.
5. No Stock Option granted hereunder shall be exercisable after
the expiration of ten years from the date such NQSO is granted. The
Committee, in its discretion, may provide that an option shall be
exercisable during such ten year period or during any lesser period of
time. The Committee may establish installment exercise terms for a
Stock Option such that the NQSO becomes fully exercisable in a series
of cumulating portions. If an Optionee shall not, in any given
installment period, purchase all the Common Shares which such Optionee
is entitled to purchase within such installment period, such Optionee's
right to purchase any Common Shares not purchased in such installment
period shall continue until the expiration or sooner termination of
such NQSO. The Committee may also accelerate the exercise of any NQSO.
6. A Stock Option, or portion thereof, shall be exercised by
delivery of (i) a written notice of exercise to the Company specifying
the number of Common Shares to be purchased, and (ii) payment of the
full price of such Common Shares, as fully set forth in paragraph 7 of
this Article V. No NQSO or installment thereof shall be reusable
<PAGE> 36
except with respect to whole shares, and fractional share interests
shall be disregarded. Not less than 100 Common Shares may be purchased
at one time unless the number purchased is the total number at the time
available for purchase under the NQSO. Until the Common Shares
represented by an exercised NQSO are issued to an Optionee, he/she
shall have none of the rights of a shareholder.
7. The exercise price of a Stock Option, or portion thereof, may
be paid:
A. In United States dollars, in cash or by cashier's check,
certified check, bank draft or money order, payable to the order
of the Company in an amount equal to the option price; or,
B. At the discretion of the Committee, through the delivery
of fully paid and nonassessable Common Shares, with an aggregate
fair market value (determined as the average of the highest and
lowest reported sales prices on the Common Shares as of the date
of exercise of the NQSO, as reported by such responsible reporting
service as the Committee may select, or if there were not
transactions in the Common Shares on such day, then the last
preceding day on which transactions took place), as of the date of
the NQSO exercise equal to the option price, provided such
tendered shares, or any derivative security resulting in the
issuance of Common Shares, have been owned by the Optionee for at
least thirty (30) days prior to such exercise; or,
C. By a combination of both A and B above.
The Committee shall determine acceptable methods for tendering
Common Shares as payment upon exercise of a Stock Option and may impose
such limitations and prohibitions on the use of Common Shares to
exercise an NQSO as it deems appropriate.
8. With the Optionee's consent, the Committee may cancel any
Stock Option issued under this Plan and issue a new NQSO to such
Optionee.
9. Except by will, the laws of descent and distribution, or with
the written consent of the Committee, no right or interest in any Stock
Option granted under the Plan shall be assignable or transferable, and
no right or interest of any Optionee shall be liable for, or subject
to, any lien, obligation or liability of the Optionee. Upon petition
to, and thereafter with the written consent of the Committee, an
Optionee may assign or transfer all or a portion of the Optionee's
rights and interest in any stock option granted hereunder. Stock
Options shall be exercisable during the Optionee's lifetime only by the
Optionee or assignees, or the duly appointed legal representative of an
incompetent Optionee, including following an assignment consented to by
the Committee herein.
10. No NQSO shall be exercisable while there is outstanding any
other NQSO which was granted to the Optionee before the grant of such
option under the Plan or any other plan which gives the right to the
Optionee to purchase stock in the Company or in a corporation which is
a parent corporation (as defined in Section 425(e) of the Code) of the
<PAGE> 37
Company, or any predecessor corporation of any of such corporations at
the time of the grant. An NQSO shall be treated as outstanding until
it is either exercised in full or expires by reason of lapse of time.
11. Any Optionee who disposes of Common Shares acquired on the
exercise of a NQSO by sale or exchange either (i) within two years
after the date of the grant of the NQSO under which the stock was
acquired, or (ii) within one year after the acquisition of such Shares,
shall notify the Company of such disposition and of the amount realized
upon such disposition. The transfer of Common Shares may also be
restricted by applicable provisions of the Securities Act of 1933, as
amended.
ARTICLE VI
Adjustments or Changes in Capitalization
1. In the event that the outstanding Common Shares of the
Company are hereafter changed into or exchanged for a different number
or kinds of shares or other securities of the Company by reason of
merger, consolidation, other reorganization, recapitalization,
reclassification, combination of shares, stock split-up or stock
dividend:
A. Prompt, proportionate, equitable, lawful and adequate
adjustment shall be made of the aggregate number and kind of
shares subject to Stock Options which may be granted under the
Plan, such that the Optionee shall have the right to purchase such
Common Shares as may be issued in exchange for the Common Shares
purchasable on exercise of the NQSO had such merger,
consolidation, other reorganization, recapitalization,
reclassification, combination of shares, stock split-up or stock
dividend not taken place;
B. Rights under unexercised Stock Options or portions
thereof granted prior to any such change, both as to the number or
kind of shares and the exercise price per share, shall be adjusted
appropriately, provided that such adjustments shall be made
without change in the total exercise price applicable to the
unexercised portion of such NQSO's but by an adjustment in the
price for each share covered by such NQSO's; or,
C. Upon any dissolution or liquidation of the Company or
any merger or combination in which the Company is not a surviving
corporation, each outstanding Stock Option granted hereunder shall
terminate, but the Optionee shall have the right, immediately
prior to such dissolution, liquidation, merger or combination, to
exercise his/her NQSO in whole or in part, to the extent that it
shall not have been exercised, without regard to any installment
exercise provisions in such NQSO.
2. The foregoing adjustment and the manner of application of the
foregoing provisions shall be determined solely by the Committee, whose
determination as to what adjustments shall be made and the extent
thereof, shall be final, binding and conclusive. No fractional Shares
shall be issued under the Plan on account of any such adjustments.
<PAGE> 38
ARTICLE VII
Merger, Consolidation or Tender Offer
1. If the Company shall be a party to a binding agreement to any
merger, consolidation or reorganization or sale of substantially all
the assets of the Company, each outstanding Stock Option shall pertain
and apply to the securities and/or property which a shareholder of the
number of Common Shares of the Company subject to the NQSO would be
entitled to receive pursuant to such merger, consolidation or
reorganization or sale of assets.
2. In the event that:
A. Any person other than the Company shall acquire more
than 20% of the Common Shares of the Company through a tender
offer, exchange offer or otherwise;
B. A change in the "control" of the Company occurs, as such
term is defined in Rule 405 under the Securities Act of 1933;
C. There shall be a sale of all or substantially all of the
assets of the Company;
any then outstanding Stock Option held by an Optionee, who is deemed by
the Committee to be a statutory officer ("insider") for purposes of
Section 16 of the Securities Exchange Act of 1934 shall be entitled to
receive, subject to any action by the Committee revoking such an
entitlement as provided for below, in lieu of exercise of such Stock
Option, to the extent that it is then exercisable, a cash payment in an
amount equal to the difference between the aggregate exercise price of
such NQSO, or portion thereof, and, (i) in the event of an offer or
similar event, the final offer price per share paid for Common Shares,
or such lower price as the Committee may determine to conform an option
to preserve its Stock Option status, times the number of Common Shares
covered by the NQSO or portion thereof, or (ii) in the case of an event
covered by B or C above, the aggregate fair market value of the Common
Shares covered by the Stock Option, as determined by the Committee at
such time.
3. Any payment which the Company is required to make pursuant to
paragraph 2 of this Article VII, shall be made within fifteen (15)
business days, following the event which results in the Optionee's
right to such payment. In the event of a tender offer in which fewer
than all the shares which are validity tendered in compliance with such
offer are purchased or exchanged, then only that portion of the shares
covered by an NQSO as results from multiplying such shares by a
fraction, the numerator of which is the number of Common Shares
acquired and the denominator of which is the number of Common Shares
tendered in compliance with such offer, shall be used to determine the
payment thereupon. To the extent that all or any portion of a Stock
Option shall be affected by this provision, all or such portion of the
NQSO shall be terminated.
<PAGE> 39
4. Notwithstanding paragraphs 1 and 3 of this Article VII, the
Company may, by unanimous vote and resolution, unilaterally revoke the
benefits of the above provisions; provided, however, that such vote is
taken no later than ten business days following public announcement of
the intent of an offer of the change of control, whichever occurs
earlier.
ARTICLE VIII
Amendment and Termination of Plan
1. The Board may at any time, and from time to time, suspend or
terminate the Plan in whole or in part or amend it from time to time in
such respects as the Board may deem appropriate and in the best
interest of the Company.
2. No amendment, suspension or termination of this Plan shall,
without the Optionee's consent, alter or impair any of the rights or
obligations under any Stock Option theretofore granted to him/her under
the Plan.
3. The Board may amend the Plan, subject to the limitations
cited above, in such manner as it deems necessary to permit the
granting of Stock Options meeting the requirements of future amendments
or issued regulations, if any, to the Code.
4. No NQSO may be granted during any suspension of the Plan or
after termination of the Plan.
ARTICLE IX
Government and Other Regulations
The obligation of the Company to issue, transfer and deliver
Common Shares for Stock Options exercised under the Plan shall be
subject to all applicable laws, regulations, rules, orders and approval
which shall then be in effect and required by the relevant stock
exchanges on which the Common Shares are traded and by government
entities as set forth below or as the Committee in its sole discretion
shall deem necessary or advisable. Specifically, in connection with
the Securities Act of 1933, as amended, upon exercise of any Stock
Option, the Company shall not be required to issue Common Shares unless
the Committee has received evidence satisfactory to it to the effect
that the Optionee will not transfer such shares except pursuant to a
registration statement in effect under such Act or unless an opinion of
counsel satisfactory to the Company has been received by the Company to
the effect that such registration is not required. Any determination
in this connection by the Committee shall be final, binding and
conclusive. The Company may, but shall in no event be obligated to
take any other affirmative action in order to cause the exercise of a
Stock Option or the issuance of Common Shares purchased thereto to
comply with any law or regulation of any government authority.
<PAGE> 40
ARTICLE X
Miscellaneous Provisions
1. No person shall have any claim or right to be granted a Stock
Option under the Plan, and the grant of an NQSO under the Plan shall
not be construed as giving an Optionee the right to be retained by the
Company. Furthermore, the Company expressly reserves the right at any
time to terminate its relationship with an Optionee with or without
cause, free from any liability, or any claim under the Plan, except as
provided herein, in an option agreement, or in any agreement between
the Company and the Optionee.
2. Any expenses of administering this Plan shall be borne by the
Company.
3. The payment received from Optionee from the exercise of Stock
Options under the Plan shall be used for the general corporate purposes
of the Company.
4. The place of administration of the Plan shall be in the State
of Nevada and the validity, contraction, interpretation, administration
and effect of the Plan and its rules and regulations, and rights
relating to the Plan, shall be determined solely in accordance with the
laws of the State of Nevada.
5. Without amending the Plan, grants may be made to persons who
are foreign nationals or employed outside the United States, or both,
on such terms and conditions, consistent with the Plan's purpose,
different from those specified in the Plan as may, in the judgment of
the Committee, be necessary or desirable to create equitable
opportunities given differences in tax laws in other countries.
6. In addition to such other rights of indemnification as they
may have as members of the Board or Committee, the members of the
Committee shall be indemnified by the Company against all costs and
expenses reasonably incurred by them in connection with any action,
suit or proceeding to which they or any of them may be party by reason
of any action taken or failure to act under or in connection with the
Plan or any Stock Option granted thereunder, and against all amounts
paid by them in settlement thereof (provided such settlement is
approved by independent legal counsel selected by the Company) or paid
by them in satisfaction of a judgment in any such action, suit or
proceeding, except a judgment based upon a finding of bad faith;
provided that upon the institution of any such action, suit or
proceeding a Committee member shall in writing, give the Company notice
thereof and an opportunity, at its own expense, to handle and defend
the same before such Committee member undertakes to handle and defend
it on his/her own behalf.
7. Stock Options may be granted under this Plan from time to
time, in substitution for stock options held by employees of other
corporations who are about to become employees of the Company as the
result of a merger or consolidation of the employing corporation with
the Company or the acquisition by the Company of the assets of the
employing corporation or the acquisition by the Company of stock of the
employing corporation as a result of which it becomes a subsidiary of
<PAGE> 41
the Company. The terms and conditions of such substitute stock options
so granted may vary from the terms and conditions set forth in this
Plan to such extent as the Board of Directors of the Company at the
time of grant may deem appropriate to conform, in whole or in part, to
the provisions of the stock options in substitution for which they are
granted, but no such variations shall be such as to affect the status
of any such substitute stock options as a stock option under Section
422A of the Code.
8. Notwithstanding anything to the contrary in the Plan, if the
Committee finds by a majority vote, after full consideration of the
facts presented on behalf of both the Company the Optionee, that the
Optionee has been engaged in fraud, embezzlement, theft, commission of
a felony or proven dishonesty in the course of his/her association with
the Company or any subsidiary corporation which damaged the Company or
any subsidiary corporation, or for disclosing trade secrets of the
Company or any subsidiary corporation, the Optionee shall forfeit all
unexercised Stock Options and all exercised NQSO's under which the
Company has not yet delivered the certificates and which have been
earlier granted the Optionee by the Committee. The decision of the
Committee as to the case of an Optionee's discharge and the damage done
to the Company shall be final. No decision of the Committee, however,
shall affect the finality of the discharge of such Optionee by the
Company or any subsidiary corporation in any manner. Further, if
Optionee voluntarily terminates employment with the Company, the
Optionee shall forfeit all unexercised stock options.
ARTICLE XI
Securities Regulations
The securities issued pursuant to this Plan will be registered on
a Form S-8 registration statement.
ARTICLE XII
Written Agreement
Each Stock Option granted hereunder shall be embodied in a written
Stock Option Agreement which shall be subject to the terms and
conditions prescribed above and shall be signed by the Optionee and by
the President or any Vice President of the Company, for and in the name
and on behalf of the Company. Such Stock Option Agreement shall
contain such other provisions as the Committee, in its discretion shall
deem advisable.
ARTICLE XIII
Effective Date
This Plan shall become unconditionally effective as of the date of
approval of the Plan by the Board of Directors of the Company. No
Stock Option may be granted later than ten (10) years from the
effective date of the Plan; provided, however, that the Plan and all
outstanding Stock Options shall remain in effect until such NQSO's have
expired or until such options are cancelled.
<PAGE> 42
Number of Shares: ________________ Date of Grant: ____________
NONQUALIFYING STOCK OPTION AGREEMENT
AGREEMENT made this _____ day of ______________, 19___, between
___________________________ (the "Optionee"), and PHOENIX RESOURCES
TECHNOLOGIES, INC., a Nevada corporation (the "Company").
1. Grant of Option. The Company, pursuant to the provisions of
the PHOENIX RESOURCES TECHNOLOGIES, INC. 1999 Nonqualifying Stock
Option Plan (the "1999 Plan"), set forth as Attachment A hereto, hereby
grants to the Optionee, subject to the terms and conditions set forth
or incorporated herein, an Option to purchase from the Company all or
any part of an aggregate of _____________________. Common Shares, as
such Common Shares are now constituted, at the purchase price of
$_____________ per share. The provisions of the 1999 Plan governing
the terms and conditions of the Option granted hereby are incorporated
in full herein by reference.
2. Exercise. The Option evidenced hereby shall be exercisable in
whole or in part (but only in multiples of 100 Shares unless such
exercise is as to the remaining balance of this Option) on or after
___________________ and on or before __________________________,
provided that the cumulative number of Common Shares as to which this
Option may be exercised (except as provided in paragraph 1 of Article
VI of this 1999 Plan) shall not exceed the following amounts:
Cumulative Number Prior to Date
of Shares (Not Inclusive of)
The Option evidenced hereby shall be exercisable by the delivery to and
receipt by the Company of (i) a written notice of election to exercise,
in the form set forth in Attachment B hereto, specifying the number of
shares to be purchased; (ii) accompanied by payment of the full
purchase price thereof in case or certified check payable to the order
of the Company, or by fully-paid and nonassessable Common Shares of the
Company properly endorsed over to the Company, or by a combination
thereof; and, (iii) by return of this Stock Option Agreement for
endorsement of exercise by the Company on Schedule I hereof. In the
event fully paid and nonassessable Common Shares are submitted as whole
or partial payment for Shares to be purchased hereunder, such Common
Shares will be valued at their Fair Market Value (as defined in the
1999 Plan) on the date such Shares are received by the Company and
applied to payment of the exercise price.
3. Transferability. The Option evidenced hereby is NOT
assignable or transferable by the Optionee other than by the Optionee's
will, by the laws of descent and distribution, as provided in paragraph
9 of Article V of the 1999 Plan. The Option shall be exercisable only
by the Optionee during his/her lifetime.
<PAGE>
<PAGE> 43
4. Securities Regulations. The securities issued pursuant to
this Plan have been registered on a Form S-8 registration statement
under the Securities Act of 1933. Resales thereof may only be made in
compliance with applicable federal and state securities laws.
PHOENIX RESOURCES TECHNOLOGIES, INC.
BY: ___________________________________
Ben Traub, President
ATTEST:
________________________
Secretary
Optionee hereby acknowledges receipt of a copy of the 1999 Plan,
attached hereto and accepts this Option subject to each and every term
and provision of such Plan. Optionee hereby agrees to accept as
binding, conclusive and final, all decisions or interpretations of the
Compensation Committee of the Board of Directors administering the 1999
Plan on any questions arising under such Plan. Optionee recognizes
that if Optionee's employment with the Company or any subsidiary
thereof shall be terminated with cause, or by the Optionee, all of the
Optionee's rights hereunder shall thereupon terminate; and that,
pursuant to paragraph 10 of Article V of the 1999 Plan, this Option may
not be exercised while there is outstanding to Optionee any unexercised
Stock Option, granted to Optionee before the date of grant of this
Option, to purchase Common Shares of the Company or any parent or
subsidiary thereof.
Dated: ___________________
_________________________________
Optionee
_________________________________
Type or Print Name
_________________________________
Address
_________________________________
_________________________________
Social Security No.
<PAGE> 44
Attachment B
(Suggested form of letter to be used for notification of election to
exercise.)
Date:
Secretary,
PHOENIX RESOURCES TECHNOLOGIES, INC.
Dear Sir/Madame:
In accordance with paragraph 2 of the Nonqualifying Stock Option
Agreement evidencing the Option granted to me on _______________ under
the PHOENIX RESOURCES TECHNOLOGIES, INC. 1999 Nonqualifying Stock
Option Plan, I hereby elect to exercise this Option to the extent of
____________________ Common Shares.
Enclosed are (i) Certificate(s) No.(s) ______________
representing fully-paid Common Shares of PHOENIX RESOURCES
TECHNOLOGIES, INC. endorsed to the Company with signature guaranteed,
and/or a certified check payable to the order of Phoenix Resources
Technologies, Inc. in the amount of $______________ as the balance of
the purchase price of $______________ for the Shares which I have
elected to purchase and (ii) the original Stock Option Agreement for
endorsement by the Company as to exercise on Schedule I thereof. I
acknowledge that the Common Shares (if any) submitted as part payment
for the exercise price due hereunder will be valued by the Company at
their Fair Market Value (as defined in the 1999 Plan) on the date this
Option exercise is effected by the Company. In the event I hereafter
sell any Common Shares issued pursuant to this option exercise within
one year from the date of exercise or within two years after the date
of grant of this Option, I agree to notify the Company promptly of the
amount of taxable compensation realized by me by reason of such sale
for federal income tax purposes.
When the certificate for Common Shares which I have elected to
purchase has been issued, please deliver it to me, along with my
endorsed Stock Option Agreement in the event there remains an
unexercised balance of Shares under the Option, at the following
address:
____________________________________________
____________________________________________
____________________________________
Signature of Optionee
____________________________________
Type or Print Name
Optionee __________________________ Date of Grant _____________
<PAGE> 45
SCHEDULE I
Unexercised Issuing
Shares Payment Shares Officer
Date Purchased Received Remaining Initial
<PAGE> 46
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use, by incorporation by reference, in the Form
S-8 Registration Statement under The Securities Act of 1933 of
Phoenix Resources Technologies, Inc. (a Nevada corporation)
(Registrant) of our report dated June 25, 1999 on the financial
statements of Phoenix Resources Technologies, Inc. as of October
31, 1998 and 1997 and for each of the two years then ended
accompanying the financial statements contained in the
Registrant's Annual Report on Form 10-KSB as of and for the
period ended October 31, 1998.
/s/ S.W. Hatfield, CPA
S.W. Hatfield, CPA
Dallas, Texas
December 14, 1999
<PAGE> 47
EXHIBIT 23.2
CONRAD C. LYSIAK
Attorney and Counselor at Law
601 West First Avenue
Suite 503
Spokane, Washington 99201
(509) 624-1475
FAX: (509) 747-1770
CONSENT
I HEREBY CONSENT to the inclusion of my name in
connection with the Form S-8 Registration Statement filed with
the Securities and Exchange Commission as attorney for the
registrant, Phoenix Resources Technologies, Inc.
DATED this 16th day of December, 1999.
Yours truly,
/s/ Conrad C. Lysiak
Conrad C. Lysiak
<PAGE> 48
EXHIBIT 99.2
INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
AGREEMENT made this _____ day of October, 1999, by and
between Phoenix Resources Technologies, Inc., a Nevada
corporation (the "Phoenix") and Clark Nichols, William Nichols
and Milton Price ("Nichols, Nichols and Price").
WHEREAS, Phoenix and one Ben Traub ("Traub") have entered
into an agreement whereby Phoenix is going to issue to Traub on
behalf of certain third parties, 9,000,000 restricted shares of
common stock in consideration of the payment of $300,000;
WHEREAS, it appears that certain former officers and
directors of Phoenix may have claims for indemnification against
Phoenix;
WHEREAS, Traub is concerned that in the future, former
officers and directors of Phoenix may make indemnification claims
against Phoenix; and,
WHEREAS, in order to induce Traub to proceed with the
acquisition of the aforementioned 9,000,000 shares, Nichols,
Nichols and Price have agreed to personally indemnify and hold
Phoenix harmless from any and all claims and judgments, including
attorney's fees, made by former officers and directors of
Phoenix.
NOW THEREFORE, in consideration of the mutual covenants and
promises contained herein, it is agreed as follows:
1. The foregoing recitals are hereby made part of this
agreement.
2. Upon Traub purchasing 9,000,000 shares of Phoenix common
stock, Nichols, Nichols and Price, jointly and severally, hereby
indemnify and hold Phoenix safe and harmless from any and all
claims made by any former officers or directors of Phoenix for
any reason. Such indemnification and hold harmless includes, but
is not limited to claims, judgments, causes of action, demands
and includes any and all attorney's fees incurred by Phoenix in
connection with any of the foregoing. Upon noitce of a claim,
Nichols, Nichols, and Price will select the attorneys to defend
or respond to actions or claims intiated or threatened and will
be responsible for the payment of all fees due the attorney's so
selected by them. Further, Nichols, Nichols, and Price will be
responsible for the attorney's so selected.
3. The obligation of Nichols, Nichols and Price will
continue for a period of fifteen (15) years from the date hereof.
<PAGE> 49
IN WITNESS WHEREOF, the parties hereto have executed this
agreement the day and year first above written.
PHOENIX RESOURCES TECHNOLOGIES, INC.
BY: _____________________________
William Nichols, President
NICHOLS, NICHOLS AND PRICE
_________________________________
Clark Nichols
_________________________________
William Nichols
_________________________________
Milton Price
