-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EXRNFhJlFk6fsO81vaY2cNDJWn9rZE+rJciOh/o+PbqNda2GZYjmKd82pmLiSVBp /peL+2hbQRaHwY3Y6PaSkg== 0001010549-02-000689.txt : 20021119 0001010549-02-000689.hdr.sgml : 20021119 20021119095240 ACCESSION NUMBER: 0001010549-02-000689 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20021118 EFFECTIVENESS DATE: 20021118 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROHEALTH MEDICAL TECHNOLOGIES INC CENTRAL INDEX KEY: 0000744452 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROCESSING & DATA PREPARATION [7374] IRS NUMBER: 592262718 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-101294 FILM NUMBER: 02832214 BUSINESS ADDRESS: STREET 1: 211 WEST WALL CITY: MIDLAND STATE: TX ZIP: 79701 BUSINESS PHONE: 9156821761 MAIL ADDRESS: STREET 1: 211 WEST WALL CITY: MIDLAND STATE: TX ZIP: 79701 FORMER COMPANY: FORMER CONFORMED NAME: DATALINK SYSTEMS INC DATE OF NAME CHANGE: 19980306 FORMER COMPANY: FORMER CONFORMED NAME: DATALINK CAPITAL CORP/TX/ DATE OF NAME CHANGE: 19980306 FORMER COMPANY: FORMER CONFORMED NAME: DCC ACQUISITION CORP DATE OF NAME CHANGE: 19990211 S-8 1 prohealths8111502.txt SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ProHealth Medical Technologies, Inc. (soon to be renamed Applied DNA Sciences, Inc.) (Exact Name of Registrant as Specified in Its Charter) Nevada (State or Other Jurisdiction of Incorporation or Organization) 59-2262718 (I.R.S. Employer Identification No.) (Address of Principal Executive Offices) (Zip Code) 2002 Professional/Employee/Consultant Stock Compensation Plan For Applied DNA Sciences, Inc. (Full Title of the Plan) Lawrence Lee President and Chief Executive Officer (Name and Address of Agent for Service) 9255 West Sunset Blvd. Suite 805, Los Angeles, CA 90699 California 90069 310-860-1362 (Telephone Number, Including Area Code, of Agent for Service) ================================================================================ Calculation of Registration Fee ================================================================================ Proposed amount of Securities to be registered: 2,000,000 Amount of Title of Securities Amount To Be Aggregate Fee Aggregate To Be Registered Registered(1) Price Per Share(2) Registration Common $130,000 Par Value, $0.0001 2,000,000 $0.065 $11.96 ================================================================================ 1 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 and benefit plans described herein. 2 Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) based on the twenty day average of the high and low prices reported on the OTC-BB, which was $0.065 per share. PART I INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. ProHealth Medical Technologies, Inc. (The Company, we, us or the Registrant) is offering a total of 2,000,000 shares of its Common Stock to professionals, employees and consultants for service including legal, administrative, marketing, introductory, recruiting and other consulting services. The issuance of shares is being made pursuant to the "2002 Professional/Consultant Stock Compensation Plan" ("the PEC Plan") adopted by the Board of Directors on or about November 5, 2002. The 2,000,000 shares will cover the costs of previously rendered services of professionals, employees and consultants as well as ongoing services to the Company, and eligible recipients will receive shares that are subject to volume limitations of no more than 8,000 shares per month, individually. A copy of the Plan has been distributed to all eligible individuals or entities. Each individual or entity has agreed to accept shares under the Plan in lieu of a cash payment for its services. The shares issued hereunder will not be subject to any resale restrictions. The Plan is not qualified under ERISA, nor is this Plan qualified under Section 401(a) of the Internal Revenue Code. There are no ongoing reporting obligations of Professionals, Employees or Consultants, nor are there any ongoing contributions from the Registrant. The purpose of this Registration of securities on Form S-8 is to compensate individuals and/or entities that have performed and continue to perform services to the Registrant. The Board has authorized this registration statement and has written the Plan to satisfy present and future compensation obligations to professionals, employees and consultants. This registration is limited to 2,000,000 shares. The individuals or entities that are eligible for shares under the Plan have performed, or will perform in the future, services or activities for which shares may be issued under a Form S-8. Such individuals or entities may contact Jaime Cardona, the Plan Administrator and Director of the Registrant, with any questions at 310-860-1362. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL. In addition to receiving a copy of the Plan, each eligible individual or entity shall have access, upon oral or written request, to any documentation regarding the Plan that may not be included in this Registration Statement. PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which are on file with the Securities and Exchange Commission, are incorporated herein by reference: (a) The Company's most recent annual report, filed on Form 10-KSB for the fiscal year 2001, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), which report contains audited financial statements for the Company's latest fiscal year for which such statements have been filed. The description of the Company's Common Stock is contained in the annual report incorporated by reference herein. 2 (b) The Company's recent quarterly reports, filed on Form 10-QSB. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS. Section 78.7502 of the Nevada General Corporation Law contains provisions authorizing indemnification by the Company of directors, officers, employees or agents against certain liabilities and expenses, which they may incur as directors, officers, employees, or agents of the Company or of certain other entities. Section 78.7502(3) provides for mandatory indemnification, including attorney's fees, if the director, officer, employee or agent has been successful on the merits or otherwise in defense of any action, suit or proceeding or in defense of any claim, issue or matter therein. Section 78.751 provides that such indemnification may include payment by the Company of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding upon receipt of an undertaking by the person indemnified to repay such payment if he shall be ultimately found not to be entitled to indemnification under the Section. Indemnification may be provided even though the person to be indemnified is no longer a director, officer, employee or agent of the Company or such other entities. Section 78.752 authorizes the Company to obtain insurance on behalf of any such director, officer, employee or agent against liabilities, whether or not the Company would have the power to indemnify such person against such liabilities under the provisions of Section 78.7502. Under Section 78.751(e) the indemnification and advancement of expenses provided pursuant to Sections 78.7502 and 78.751 are not exclusive, and subject to certain conditions, the Company may make other or further indemnification or advancement of expenses of any of its directors, officers, employees or agents. Because neither the Articles of Incorporation, as amended, or By-Laws of our Company otherwise provide, notwithstanding the failure of the Company to provide indemnification and despite a contrary determination by the Board of Directors or its shareholders in a specific case, a director, officer, employee or agent of the Company who is or was a party to a proceeding may apply to a court of competent jurisdiction for indemnification or advancement of expenses or both, and the court may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses if it determines that the petitioner is entitled to mandatory indemnification pursuant to Section 78.7502(3) because he has been successful on the merits, or because the Company has the power to indemnify on a discretionary basis pursuant to Section 78.7502 or because the court determines that the petitioner is fairly and reasonably entitled to indemnification or advancement of expenses or both in view of all the relevant circumstances. Articles of Incorporation and By-Laws - ------------------------------------- Our Articles of Incorporation and By-Laws empower us to indemnify current or former directors, officers, employees or agents of the Company or persons serving by request of the Company in such capacities in any other enterprise or persons who have served by the request of the Company in such capacities in any other enterprise to the full extent permitted by the laws of the State of Nevada. 3 Indemnity Agreements - -------------------- To induce and encourage highly experienced and capable persons to serve as directors and officers, our Company has entered into an Indemnity Agreement with each director and officer presently serving the Company and will provide the same agreement to future directors and officers as well as certain agents and employees. The Agreement provides that we shall indemnify the director and/or officer, or other person, when he or she is a party to, or threatened to be made a party to, a proceeding by, or in the name of, the Company. Expenses incurred by the indemnified person in any proceeding are to be paid to the fullest extent permitted by applicable law. The Agreement may at some time require the Company to pay out funds that might otherwise be utilized to further the Company's business objectives, thereby reducing our ability to carry out our projected business plans. SEC Position on Indemnification for Security Act Liability - ---------------------------------------------------------- Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy expressed in the Securities Act of 1933, as amended, and will be governed by the final adjudication of such issue. Officers and Directors Liability Insurance - ------------------------------------------ At present, we do not maintain Officers and Directors Liability Insurance and, because of the anticipated cost of such insurance, we have no present plans to obtain such insurance. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. Exhibits. Copies of the following documents are included as exhibits to this registrationstatement pursuant to Item 601 of regulation S-B. 4 SEC Exhibit No. Description - -------------------------------------------------------------------------------- 3.01 Articles of Incorporation *3.02 Bylaws. *5.01 Letter opinion, including consent of Law Office of Andrea Cataneo Ltd. regarding legality of Common Stock to be issued Pursuant to the 2002 Professional/Employee/Consultant Stock Compensation Plan. 10.8 2002 Professional/Employee/Consultant Stock Compensation Plan 23.01 Consent of Law Office of Andrea Cataneo Ltd. (included in Opinion in Exhibit 5.1). 23.02 Consent of accountant S.W. Hatfield, C.P.A. * Filed previously ITEM 9. UNDERTAKINGS. (a) 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. (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. (b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe it meets all the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, State of California on this 7th day of November, 2002. PROHEALTH MEDICAL TECHNOLOGIES, INC. /s/ Lawrence Lee By: --------------------------- Lawrence Lee, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Lawrence Lee, his true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, may lawfully do or cause to be done. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons as of the date indicated below. SIGNATURES DATE November 7, 2002 /s/ Lawrence Lee - ----------------------------------------------- Lawrence Lee, President, CEO and sole Director /s/ Jaime Cardona - ----------------------------------------------- Jaime Cardona, Secretary and Plan Administrator 6 EX-5.1 3 prohealths8ex51111502.txt CONSENT OF ANDREA CATANEO LTD. Exhibit 5.01 LAW OFFICE OF ANDREA CATANEO LTD. 81 MEADOWBROOK ROAD RANDOLPH, NJ 07860 (973) 442-9944 (973) 442-9933 November 7, 2002 Board of Directors ProHealth Medical Technologies, Inc. In re: ProHealth Medical Technologies, Inc. (soon to be renamed Applied DNA Sciences, Inc. Registration Statement on Form S-8 Professional/Employee/Consultant Stock Compensation Plan for Applied DNA Sciences, Inc. Gentlemen: We have acted as special counsel to ProHealth Medical Technologies, Inc., a Nevada Corporation, ("the Company") in connection with the preparation of a registration statement to be filed with the Securities and Exchange Commission on Form S-8 (Registration Statement) on or about November 7, 2002, relating to the proposed issuance of up to 2,000,000 (Shares) of the Company's Common Stock, (par value of $0.0001 per share) pursuant to the terms of a 2002 Professional/Employee/Consultant Stock Compensation Plan for Applied DNA Sciences, Inc. (the "PEC Plan") dated November 5, 2002. In this connection, we have examined such documents, corporate records and other papers as we deemed necessary to examine for the purposes of this opinion. We have examined the PEC Plan and the underlying contracts of the eligible individuals, where appropriate, as well as such corporate records, documents, instruments and certificates of the Company, and have reviewed such other documents, as we have deemed relevant under the circumstances. In such examination, we have assumed without independent investigation the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all natural persons, and the conformity of any documents submitted to us as copies to their respective originals. As to certain questions of fact material to this opinion, we have relied without independent investigation upon statements or certificates of public officials and officers of the Company. Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued in accordance with the Plans, will be legally issued, fully paid and non-assessable. In connection with this opinion, we have examined the Registration Statement, the Company's Articles of Incorporation and By-laws, and such other documents as we have deemed necessary to enable us to render the opinion hereinafter expressed. We render no opinion as to the laws of any jurisdiction other than the internal laws of the State of Nevada. We hereby consent to the use of this opinion as an exhibit. This opinion is conditioned upon the compliance by the Company with all applicable provisions of the Securities Act of 1933, as amended, and such state securities rules, regulations and laws as may be applicable. Very truly yours, LAW OFFICE OF ANDREA CATANEO LTD. /s/ Andrea Cataneo - ------------------------ By: Andrea Cataneo, Esq. EX-10.8 4 prohealths8ex107111502.txt 2002 COMPENSATION PLAN Exhibit 10.7 ProHealth Medical Technologies, Inc. 2002 PROFESSIONAL/EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN 1. Purpose The purpose of this Plan is to provide compensation in the form of Common Stock of the Company to eligible professionals, employees or consultants that have previously rendered services or that will render services during the term of this Professional/Employee/Consultant Stock Compensation Plan (hereinafter referred to as the Plan.) 2. Administration (a) This Plan shall be administered by the Board of Directors who may from time to time issue orders or adopt resolutions, not inconsistent with the provisions of this Plan, to interpret the provisions and supervise the administration of this Plan. The Company's Secretary, Jaime Cardona, shall act as Plan Administrator, and will make initial determinations as to which consultants, employees, professionals or advisors will be considered eligible to receive shares under this Plan, and will provide a list to the Board of Directors. All final determinations shall be by the affirmative vote of a majority of the members of the Board of Directors at a meeting called for such purpose, or reduced to writing and signed by a majority of the members of the Board. Subject to the Corporation's Bylaws, all decisions made by the Directors in selecting eligible professionals, employees and consultants, establishing the number of shares, and construing the provisions of this Plan shall be final, conclusive and binding on all persons including the Corporation, shareholders, professionals, employees and consultants. (b) The Board of Directors may from time to time appoint a PEC Plan Committee, consisting of at least one Director and one officer, none of whom shall be eligible to participate in the Plan while members of the Committee. The Board of Directors may delegate to such Committee power to select the particular Consultants that are to receive shares, and to determine the number of shares to be allocated to each such eligible party. (c) If the SEC Rules and or regulations relating to the issuance of Common Stock under a Form S-8 should change during the terms of this Plan, the Board of Directors shall have the power to alter this Plan to conform to such changes. 3. Eligibility (a) Shares shall be granted only to Professionals, Employees and Consultants that are within that class for which Form S-8 is applicable. (b) No individual or entity shall be granted more than 500,000 shares of unrestricted Common Stock under this Plan. 4. Shares Subject to the Plan The total number of shares of Common Stock to be subject to this Plan is 2,000,000. The shares subject to the Plan will be registered with the SEC on or about November 7, 2002 in a Form S-8 Registration. 5. Death of Professional, Employee or Consultant If a Professional, Employee or Consultant dies while he is a Professional Employee or Consultant of the Corporation or of any subsidiary, or within 90 days after such termination, the shares, to the extent that the Professional, Employee or Consultant was to be issued shares under the plan, may be issued to his personal representative or the person or persons to whom his rights under the plan shall pass by his will or by the applicable laws of descent and distribution. 6. Termination of Professional, Employee or Consultant, Retirement or Disability If a Professional, Employee or Consultant shall cease to be retained by the Corporation for any reason (including retirement and disability) other than death after he shall have continuously been so retained for his specified term, he may, but only within the three-month period immediately following such termination, request his pro-rata number of shares for his services already rendered. 7. Leak out provision: For the benefit of the Company's shareholders, all shares issued from the PEC PLAN will subject to a leak out provision as defined herein, and in the employment agreement or consultant contract of each Professional, Employee or Consultant. The Plan Administrator, at its sole discretion, can increase the maximum number of shares to be released into the marketplace by each recipient, but cannot go below the threshold amount of the lower of 2,500 shares per recipient per month, or 25% of the recipient's total holdings. The discretional increase can be made by the Plan Administrator to up to no more than 20,000 shares per recipient per month. As shares under the PEC PLAN shall be earned out, and placed in Escrow to be released to recipients in accordance with their contracts or agreements with the company and at the direction of the Plan Administrator. 8. Escrow Agent. The escrow agent for the PEC PLAN shares is the Law Office of Andrea Cataneo Ltd. located at 81 Meadowbrook Road, Randolph, NJ 07969. 9. Termination of the Plan This Plan shall terminate one year after its adoption by the Board of Directors. At such time, any shares which remain unsold shall be removed from registration by means of a post-effective amendment to the Form S-8. 10. Effective Date of the Plan This Plan shall become effective upon its adoption by the Board of Directors. CERTIFICATION OF ADOPTION (By the Board of Directors) The undersigned, being the President and CEO of ProHealth Medical Technologies, Inc. hereby certifies that the foregoing Plan was adopted by a unanimous vote of the Board of Directors on November 5, 2002. /s/ Lawrence Lee - ------------------------------- Lawrence Lee, President and CEO EX-23.01 5 prohealths8ex232111502.txt CONSENT OF S.W. HATFIELD, CPA EXHIBIT 23.2 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 under the Securities Act of 1933 of ProHealth Medical Technologies, Inc. (a Nevada corporation), to be filed in November 2002, of (1) our independent auditor's report dated January 9, 2002, relating to the balance sheets of ProHealth Medical Technologies, Inc. (SEC File No. 2-90519, CIK #744452) as of December 31, 2001 and 2000 and the related statements of operations and comprehensive income, changes in shareholders' equity and cash flows for the years ended December 31, 2001 and 2000, which report appears in the 2001 Annual Report on Form 10-KSB of ProHealth Medical Technologies, Inc; and (2) our independent accountant's review report dated April 25, 2002 relating to the unaudited balance sheets of ProHealth Medical Technologies, Inc. as of March 31, 2002 and 2001 and the related statements of operations and comprehensive loss and cash flows for the three months ended March 31, 2002 and 2001, which report has been submitted to management as it relates to the March 31, 2002 Quarterly Report on Form 10-QSB; and (3) our independent accountant's review report dated July 17, 2002 relating to the unaudited balance sheets of ProHealth Medical Technologies, Inc. as of June 30, 2002 and 2001 and the related statements of operations and comprehensive loss for the six and three months ended June 30, 2002 and 2001 and the related statements of cash flows for the six months ended June 30, 2002 and 2001, which report has been submitted to management as it relates to the June 30, 2002 Quarterly Report on Form 10-QSB; and (4) our independent accountant's review report dated October 10, 2002 relating to the unaudited balance sheets of ProHealth Medical Technologies, Inc. as of September 30, 2002 and 2001 and the related statements of operations and comprehensive loss for the nine and three months ended September 30, 2002 and 2001 and the related statements of cash flows for the nine months ended September 30, 2002 and 2001, which report has been submitted to management as it relates to the September 30, 2002 Quarterly Report on Form 10-QSB. S. W. HATFIELD, CPA Dallas, Texas November 11, 2002 -----END PRIVACY-ENHANCED MESSAGE-----