-----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, AbnlSIDR3x/9yU2sBd2uALXY85qdrjjyfMsg5yX/RwGqMC4RHNuutJqUi3+dfCKA SjHV79atfOK3a1CT5QRcGA== 0001010549-02-000705.txt : 20021120 0001010549-02-000705.hdr.sgml : 20021120 20021120172855 ACCESSION NUMBER: 0001010549-02-000705 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20021105 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Changes in registrant's certifying accountant ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20021120 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: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 002-90539 FILM NUMBER: 02835272 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 8-K 1 prohealth8k110502.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): November 5, 2002 PROHEALTH MEDICAL TECHNOLOGIES, INC. ---------------------- (Exact name of registrant as specified in its charter) Nevada 2 90519 59-2262718 - ---------------------------- ----------- ------------------- (State or other jurisdiction Commission (IRS Employer of Incorporation) File Number Identification No.) 9255 West Sunset Blvd, Suite 805, Los Angeles, California 90069 ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Registrant's Telephone Number, including area code: 310-860-1362 (Former name or former address, if changed since last report.) FORM 8-K ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. SEE ITEM 5. ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT On November 18, 2002 the Company dismissed its certifying accountant, S.W. Hatfield, CPA ("Hatfield"). Hatfield's reports on the financial statements for the years ended December 31, 2001 and 2000 did not contain an adverse opinion or disclaimer of opinion, and were not qualified or modified as to uncertainty, audit scope or accounting principles; however, the audit report for the years ended December 31, 2001 and 2000 contained an explanatory paragraph regarding the substantial doubt about the Company's ability to continue as a going concern. The decision to change its certifying accountant was approved by the Company's Board of Directors. During the years ended December 31, 2001 and 2000 , and the subsequent interim period through November 11, 2002 the Company has not had any disagreements with Hatfield on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure. There were no reportable events, as described in Item 304(a)(1)(v) of Regulation S-K, during the Company's two most recent fiscal years (ended December 31, 2000 and from December 31, 2001 to the date of this Report. The Company has engaged Russell Bedford Stefanou Mirchandani LLP ("Russell Bedford Stefanou Mirchandani ") as its certifying accountant as of November 1, 2002 for the Company's fiscal year ending December 31, 2002. The Company has not consulted Russell Bedford Stefanou Mirchandani previously. set forth in Item 304(a)(2)(i) and (ii) of Regulation S-K." ITEM 5. OTHER EVENTS. Applied DNA Sciences, Inc. - ----------------------- Effective as of October 31, 2002, ProHealth Medical Technologies, Inc. merged its wholly owned subsidiary, Applied DNA Sciences, Inc. (ADNAS), with and into itself in a short form merger in accordance with Section 92A.180 of the Nevada Revised Statutes. The Registrant's new address is 9255 West Sunset Blvd. Suite 805, Los Angeles, California, 90069. The Registrant also effectuated a name change as part of that transaction, and its new corporate name is Applied DNA Sciences, Inc. Glenn Little has resigned as President and Director and Matthew Blair has resigned as Secretary, Treasurer and Director. Mr. Lawrence Lee has been appointed as President and Chairman of the Board. Mr. Jaime Cardona has been appointed as the Company's new Secretary. Following are biographies of our Officers, Directors, Key Employees and Significant Consultants. For the next 90 to 120 days, such individuals shall be compensated in shares of our Common Stock, which method of compensation may be extended at the discretion of the Board. Officers and Directors - ---------------------- Larry Lee is our President and Chairman of our Board of Directors, having served in these capacities since October of 2002. He as over 20 years of technical, management, finance and marketing experience. He has successfully been involved in the start-up of three telecommunication product lines for wireless, broadband, and multi-media applications with sales exceeding $200M. He is currently serving on the Board of Advisors for four U.S. and overseas companies: IMC, Dery Resources, Converage Plus, and DDP. He has served as VP of Marketing for NOVA International, Chief Financial Officer for Hamledu Productions, Chief Operating Officer and VP of Marketing for Kingsley, Inc. Mr. Lee has been employed as a Sr. Scientist and Manager for Boeing, Hughes, and GM Electronics. He was recently selected by Boeing Satellite Systems, as one of 15 individuals worldwide, to address the company's profitability and quality issues globally. He has also served as the Sr. Project manger for the General Motor's automation program. This division successfully showcased an integrated logistical data network and software system for the company. Mr. Lee has taught engineering courses at California State University. There he received numerous Technical Excellent Awards and published various technical publications. He holds a Bachelors of Science degree in Biomedical Engineering from Virginia Tech and has a Master of Sciences in Computer/Electrical Engineering from California State University. He has also completed business executive training at UCLA. Jaime Cardona is our Company's Secretary, having served in this capacity since October of 2002. He has extensive experience in management and public relations with exceptionally strong ties to the fashion and textile industries. Prior to joining the Applied DNA Sciences team, from 1998 through October of 2002, he was a General Partner at Phazon, Inc., a multimedia company in North America, specializing in digital technology. Jaime was employed as an assistant to Mr. Gianni Versace, founder and world-renowned designer of Versace, Spa from 1992-1997. As Mr. Versace's executive assistant, he was responsible for media planning and event coordination. He created and organized events for the premier of the Versace Line in New York City, as well as events for celebrities such as Madonna, Elton John, Gloria Estefan, Sylvester Stallone and Donald Trump. In addition, during the period of 1995 through 1998, Jaime founded and operated South Beach Web, Inc. Jaime worked in the management and marketing for a number of private entities in Florida. His professional career has allowed him to build strong relationships with influential business representatives globally. Mr. Cardona holds dual Associate Degrees in Architecture and in Computer Science from Miami Community College. Key Employees - ------------- Rick Langley is our Vice President of Public Relations and Corporate Development, serving as such since October of 2002. He has 15 years of training and expertise in mergers and acquisitions, product licensing and distribution, contract negotiations, and business development. He is currently the President of Langley Investment Advisory Group, Inc. and Global Business Partners, Inc. These companies provide international business and consulting services to private and public companies globally. Mr. Langley was also the Executive Producer and Founder of Harvey Productions, Inc., which created, produced, and distributed an international financial talk show, "The Global Investors Report." This show was distributed on CNBC and other prominent networks in the United States and Europe. He also co-founded an investment information web site that was sold to a public company in 1999. During his management, the site grew to well over 2,000,000 global members. Mr. Langley was founder and President of Remediation Technologies Group, Inc., which was sold to a Public Company in 1995. Early in his professional career, he served as VP of Bachus and Stratton Securities, Inc... He opened their foreign offices and worked with the company in product development and distribution. Mr. Langley attended Nova Law School in Ft. Lauderdale, Florida, and graduated from the University of Florida with majors and minors in pre-law, criminal justice and English. Larry Bocock is our Vice President of Operations, having served as such since November of 2002. has over 25 years of technical and management experience. He is currently the founder and owner of TESTWAYS Company, Inc. of Torrance, California. The company has been in business for over 22 years and provides engineering and consulting services to the commercial and military aerospace industry in the areas of design and manufacturing. A TESTWAYS subsidiary, "COMPUTERS & ME", has been developing and implementing computer applications courses as well as marketing, training, and teaching in the public and private sectors for the past 8 years. Mr. Bocock is also the President of LEA International, a warehouse company, and LAWREN International, a distribution company, in Central America. These firms provide products in the cosmetic and heath industries. He holds a BSEE and has held a position as Scientist in a major aerospace firm. Jerry W. Howe is our Vice president of Investigation and Enforcement. He joined the Company in November of 2002. Mr. Howe has lifelong expertise in the areas of security and investigations. After serving as a Smokejumper for the U.S. Forest Service, Jerry Howe enlisted in the U.S. Army and was given a Direct Commission in the U.S. Army Security Agency. Mr. Howe then pursued a 26-year career as a Special Agent of the FBI. As a Special Agent, he received 25 commendations, including three sustained superior performance awards. After retiring from the FBI, he founded Pacific Rim Investigations, a highly reputed investigative agency that specialized in anti-counterfeiting taskforce operations, primarily for members of the International Anti-counterfeiting Committee. Mr. Howe is currently the President and founder of Gobi International Investigations, Inc. in Scottsdale, Arizona. He received a B.S. in Criminology from the University of Iowa. He is an Honors graduate of the Defense Language Institute, West Coast Branch, in Monterey, CA in Chinese Cantonese and received an M.A. in South East Asian Studies from the California Institute of Asian Studies in San Francisco. Kristin Gabriel is our Vice President of Public Relations, serving as such since November of 2002. She has 20 years of experience in marketing communications, public relations, and promotional events. Most recently, she has a solid record of accomplishment building relationships in the technology sector. Her expertise includes strategic planning for a wide range of product and service categories including manufacturing, entertainment, retail, the arts, fashion/beauty, travel/hospitality, food products, health care, medical, real estate, finance, automotive, consumer products/services, and the senior market. A seasoned executive, Gabriel consults with Boards and Executive Management teams devising companies' strategic marketing and communications plans for short and long-term business goals, and devising and implementing tactics to disseminate corporate, investor, product, marketing, and trade show news. She develops IR-PR strategic plans to assist in a company's higher stock valuation. Gabriel is often responsible for new business acquisition, building teams, managing budgets, and day-to-day office operations. She is also involved with media relations instigating trade, consumer, financial and business print, broadcast and online coverage for product and corporate news, special events and pre-IPO, M&A and liquidity events. Her expertise includes crisis communications. During her career, Gabriel has served in Executive Management positions with leading corporations, and advertising and public relations firms in St. Louis, New York and Los Angeles, including: Symantec Corporation, CyberMedia; MetaCreations software; Influence Communications, LLC, N.W. Ayer International; William Esty; The Rowland Company; and Daniel J. Edelman, working on accounts such as Norton AntiVirus and Utilities products, Goodyear Tires, Chesebrough-Pond's, Merle Norman Cosmetics, MJB Coffee, Princess Cruises and American Honda Motor Company. She is a professional member of the Independent Writers of Southern California (IWOSC) and a certified Public Information Officer for The American Red Cross. Significant Consultants - ----------------------- Stephen Rossetti serves as our special Washington D.C. consultant, serving as such since November of 2002. He has extensive experience at federal levels both in the legislative and executive branches of government. He spent 10 years on the staff of the House Armed Services Committee working with readiness and infrastructure issues including special operations forces, National Guard and Reserve preparedness, chemical and biological weapons preparedness and response, and missions other than war, such as counter-drug and counter-terror. He was instrumental in crafting major legislation on national security matters. Following service on the committee, Mr. Rossetti moved to the Office of the Secretary of Defense where he was charged with business process reform. He has broad experience in interagency policy development and federal financing and legislative processes. Mr. Rossetti is President of Markquest, a Washington D.C. based consulting practice with emphasis on national security and technology issues. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. Applied DNA Sciences, Inc. (formerly ProHealth Medical Technologies, Inc.) will be filing its financial statements by amendment within 60 days, as permitted by the instructions of this Form 8-K, Item 7. (a)(4). Exhibit Index 2.2 Articles of Merger of ProHealth Medical Technologies, Inc. (parent) and Applied DNA Sciences, Inc. (subsidiary). 10.1 Indemnity Agreement between the Company and Lawrence Lee 10.2 Indemnity Agreement between the Company and Jaime Cardona 16.1 Former Accountant's Response Letter (S.W. Hatfield, CPA) SIGNATURES ---------- Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. APPLIED DNA SCIENCES, INC. (formerly PROHEALTH MEDICAL TECHNOLOGIES, INC.) /s/ Lawrence Lee ------------------------------ Lawrence Lee, President EX-2.2 3 prohealth8kex22110502.txt ARTICLES OF MERGER Exhibit 2.2 FILED No. C8952-98 October 31, 2002 In the office of Dean Heller, Secretary of State ARTICLES OF MERGER PROHEALTH MEDICAL TECHNOLOGIES, INC. (a Nevada corporation) APPLIED DNA SCIENCES, INC. (ADNAS, Inc.) (a Nevada corporation) The undersigned parent-subsidiary corporations desiring to merge a wholly-owned Nevada subsidiary corporation, Applied DNA Sciences, Inc. (ADNAS, Inc.) as the merging corporation, with and into its Nevada parent corporation, ProHealth Medical Technologies, Inc., as the surviving corporation, hereby sign, seal, and present for filing these Articles of Merger as required by Section 92A.180 of the Nevada Revised Statutes ("NRS") as follows: 1. The names of the constituent corporations are: Merging Corporation: Applied DNA Sciences, Inc. (ADNAS, Inc.), a Nevada corporation, which is the wholly-owned subsidiary of ProHealth Medical Technologies, Inc., a Nevada corporation which is the surviving corporation of this merger. Surviving Corporation: ProHealth Medical Technologies, Inc., a Nevada corporation, which is the parent of Applied DNA Sciences, Inc. (ADNAS, Inc.), also a Nevada corporation. 2. The addresses of the corporations are as follows: Applied DNA Sciences, Inc. (ADNAS, Inc.): 9255 West Sunset Blvd. Suite 805, Los Angeles, California 90069 ProHealth Medical Technologies, Inc.: 211 West Wall Street, Midland, Texas 70701 3. This merger is permitted under the laws of the State Nevada. Applied DNA Sciences, Inc. (ADNAS, Inc.) and ProHealth Medical Technologies, Inc. have complied with the applicable provisions of the corporation laws of the State Nevada. 4. The new primary address for the surviving corporation will be 9255 West Sunset Blvd. Suite 805, Los Angeles, California 90069. 5. The Plan of Reorganization and Plan of Merger were adopted unanimously by the Boards of Directors of ProHealth Medical Technologies, Inc. and Applied DNA Sciences, Inc. (ADNAS, Inc.) Neither the Merging Corporation [Applied DNA Sciences, Inc.(ADNAS, Inc.)] nor the Surviving Corporation (ProHealth Medical Technologies, Inc.) were required to seek shareholder approval for this action as this merger qualified as a parent/subsidiary merger under Section 92A.190 of the NRS. 6. As a result of this merger, the shares of the Merging Corporation have been canceled. 7. The Articles of Incorporation of ProHealth Medical Technologies, Inc. will be amended in conjunction with the merger. Article I of the Articles of Incorporation is hereby amended to read as follows: I. The name of the corporation is: Applied DNA Sciences, Inc. ARTICLES OF MERGER ProHealth Medical Technologies, Inc. (Nevada) and Applied DNA Sciences, Inc. (ADNAS, Inc.) (Nevada) PAGE 2 8. The merger shall be effective upon the filing of these Articles of Merger in the State of Nevada. 9. The surviving corporation agrees that it may be served with process in the State of California in "any proceeding for enforcement of any obligation of the merging corporation, or of any obligation of the surviving corporation arising from the merger, including any suit or other proceeding to enforce the right of any stockholders in any appraisal proceedings. The surviving corporation irrevocably appoints the Secretary of State of California as its agent to accept service of process and to send it to: 9255 West Sunset Blvd. Suite 805, Los Angeles, California 90069 10. Copies of the Articles of Merger and the Plan and Agreement of Reorganization and Plan of Merger effectuated in accordance with Section 368(a)1(B) of the Internal Revenue Code are both available and on file at the offices of the surviving corporation. Copies will be furnished by the surviving corporation, without cost, to any stockholder of a constituent corporation, upon request. IN WITNESS WHEREOF, the constituent corporations have executed these Articles of Merger. this 23rd day of October 2002. PROHEALTH MEDICAL TECHNOLOGIES, INC. (Nevada) /s/ Glenn Little ATTEST ----------------------- Glenn Little, President /s/ - ----------------------- Secretary APPLIED DNA SCIENCES, INC. (ADNAS, INC.) ATTEST /s/ Lawrence Lee ---------------------- Lawrence Lee, President /s/ - ----------------------- Secretary State of Nevada Secretary of State I hereby certify that this is a true and compete copy of the document filed as in this office November 5, 2002 Dean Heller By: Illegible EX-10.1 4 prohealth8kex101110502.txt INDEMNITY AGREEMENT Exhibit 10.1 INDEMNITY AGREEMENT This Indemnity Agreement ("Agreement") is made as of November 8, 2002, by and between Applied DNA Sciences, Inc., a Nevada corporation (the "Company"), and Lawrence Lee ("Indemnitee"), a director and/or officer or key executive, employee or consultant of the Company, or a person serving at the request of the Company as a director, officer, employee or agent of another enterprise. RECITALS A. The Indemnitee is currently serving or has agreed to serve as a director and/or officer of the Company and in such capacity has rendered and/or will render valuable services to the Company. B. The Company has investigated the availability and sufficiency of liability insurance and applicable statutory indemnification provisions to provide its directors and officers with adequate protection against various legal risks and potential liabilities to which such individuals are subject due to their positions with the Company and has concluded that such insurance may be unavailable or too costly, and even if purchased it, and the statutory provisions, may provide inadequate and unacceptable protection to certain individuals requested to serve as its directors and/or officers. C. It is essential to the Company that it attract and retain as officers and directors the most capable persons available and in order to induce and encourage highly experienced and capable persons such as the Indemnitee to serve or continue to serve as a director and/or officer of the Company, the Board of Directors has determined, after due consideration and investigation of the terms and provisions of the Agreement and the various other options available to the Company and the Indemnitee in lieu hereof, that this Agreement is not only reasonable and prudent but necessary to promote and ensure the best interests of the Company and its stockholders. NOW, THEREFORE, in consideration of the services or continued services of the Indemnitee and in order to induce the Indemnitee to serve or continue to serve as director and/or officer, the Company and the Indemnitee do hereby agree as follows: 1. Definitions. As used in this Agreement: (a) The term "Proceeding" shall include any threatened, pending or completed inquiry, hearing, investigation, action, suit, arbitration or other alternative dispute resolution mechanism or proceeding, formal or informal, whether brought in the name of the Company or otherwise and whether of a civil, criminal or administrative or investigative nature, by reason of the fact that the Indemnitee is or was a director and/or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another enterprise, whether or not he/she is serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement is to be provided under this Agreement. (b) The term "Expenses" includes, without limitation: attorneys' fees, costs, disbursements and retainers; accounting and witness fees; fees of experts; travel and deposition costs; transcript costs, filing fees, telephone charges, postage, copying costs, delivery service fees and other expenses and obligations of any nature whatsoever paid or incurred in connection with any investigations, judicial or administrative proceedings and appeals, amounts paid in settlement by or on behalf of Indemnitee, and any expenses of establishing a right to indemnification, pursuant to this Agreement or otherwise, including reasonable compensation for time spent by the Indemnitee in connection with the investigation, defense or appeal of a Proceeding or action for indemnification for which he/she is not otherwise compensated by the Company or any third party. The term "Expenses" does not include the amount of judgments, fines, penalties or ERISA excise taxes actually levied against the Indemnitee. 2. Agreement to Serve. The Indemnitee agrees to serve or to continue to serve as a director and/or officer of the Company for so long as he/she is duly elected or appointed or until such time as he/she tenders his/her resignation in writing or is removed as a director and/or officer. However, nothing contained in this Agreement shall be construed as giving Indemnitee any right to be retained in the employ of the Company, any subsidiary or any other person. 3. Indemnification in Third Party Actions. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other that a Proceeding by or in the name of the Company to procure a judgment in its favor), by reason of the fact that the Indemnitee is or was a director and/or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another enterprise, against all Expenses, judgments, fines, penalties and ERISA excise taxes actually and reasonably incurred by the Indemnitee in connection with the defense or settlement of such a Proceeding, to the fullest extent permitted by applicable corporate law and the Company's Articles of Incorporation; provided that any settlement of a Proceeding be approved in writing by the Company. 4. Indemnification in Proceedings by or In the Name of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the name of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee was or is a director and/or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another enterprise, against all Expenses, judgments, fines penalties and ERISA excise taxes actually and reasonably incurred by the Indemnitee in connection with the defense or settlement of such a Proceeding, to the fullest extent permitted by applicable corporate law and the Company's Articles of Incorporation. 5. Conclusive Presumption Regarding Standards of Conduct. The Indemnitee shall be conclusively presumed to have met the relevant standards of conduct, if any, as defined by applicable corporate law, for indemnification pursuant to this Agreement, unless a determination is made that the Indemnitee has not met such standards (i) by the Board of Directors by a majority vote of a quorum thereof consisting of directors who were not parties to the Proceeding due to which a claim is made under this Agreement, (ii) by the shareholders of the Company by majority vote of a quorum thereof consisting of shareholders who are not parties to the Proceeding due to which a claim is made under this Agreement, (iii) in a written opinion by independent counsel, selection of whom has been approved by the Indemnitee in writing, or (iv) by a court of competent jurisdiction. 6. Indemnification of Expenses of Successful Party. Notwithstanding any other provision of the Agreement, to the extent that the Indemnitee has been successful in defense of any Proceeding or in defense of any claim, issue or matter therein, on the merits or otherwise, including the dismissal of a Proceeding without prejudice or the settlement of a Proceeding without an admission of liability, the Indemnitee shall be indemnified against all Expenses incurred in connection therewith to the fullest extent permitted by applicable corporate law. 7. Advances of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee to the fullest extent permitted by applicable corporate law; provided that the Indemnitee shall undertake in writing to repay any advances if it is ultimately determined that the Indemnitee is not entitled to indemnification. 8. Partial Indemnification. If the Indemnitee is entitled under any provision of the Agreement to indemnification by the Company for a portion of the Expenses, judgments, fines, penalties or ERISA excise taxes actually and reasonably incurred by him/her in the investigation, defense, appeal or settlement of any Proceeding but not, however, for the total amount of his/her Expenses, judgments, fines, penalties or ERISA excise taxes, the Company shall nevertheless indemnify the Indemnitee for the portion of Expenses, judgments, fines, penalties or ERISA excise taxes to which the Indemnitee is entitled. 9. Indemnification Procedure; Determination of Right to Indemnification. (a) Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in writing. The omission to so notify the Company, however, shall not relieve it from any liability that it may have to the Indemnitee otherwise than under this Agreement. (b) If a claim for indemnification or advances under this Agreement is not paid by the Company within thirty (30) days of receipt of written notice, the rights provided by this Agreement shall be enforceable by the Indemnitee in any court of competent jurisdiction. The burden of proving by clear and convincing evidence that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors or stockholders of the Company or its independent legal counsel to have made a determination prior to the commencement of such action that indemnification or advances are proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors or shareholders of the Company or independent legal counsel that the Indemnitee has not met the applicable standard of conduct, shall be a defense to the action or create a presumption for the purpose of an action that the Indemnitee has not been the applicable standard of conduct. (c) The Indemnitee's Expenses incurred in connection with any Proceeding concerning his/her right to indemnification or advances in whole or part pursuant to this Agreement shall also be indemnified by the Company regardless of the outcome of such Proceeding. (d) With respect to any Proceeding for which indemnification is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof, with counsel satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee's written consent. The Indemnitee shall have the right to employee his/her counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, in each of which cases the fees and expenses of the Indemnitee's counsel shall be advances by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded that there may be a conflict of interest between the Company and the Indemnitee. 10. Limitations on Indemnification. No payments pursuant to this Agreement shall be made by the Company: (a) To indemnify or advance funds to the Indemnitee expenses with respect to Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under applicable corporate law, but such indemnification or advancement of expenses may be provided by the Company in specific cases if the Board of Directors finds it to be appropriate; (b) To indemnify the Indemnitee for any Expenses, judgment, fines, penalties or ERISA excise taxes sustained in any Proceeding for which payment is actually made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance; (c) To indemnify the Indemnitee for any Expenses, judgment, fines, and/or penalties sustained in any Proceeding for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, the rules and regulations promulgated thereunder and amendments thereto or similar provisions of any federal, state or local statutory law; and (d) If a court of competent jurisdiction finally determines that any indemnification hereunder is unlawful. 11. Maintenance of Liability Insurance. (a) The Company hereby covenants and agrees that, as long as the Indemnitee continues to serve as a director and/or officer of the Company and thereafter as long as the Indemnitee may be subject to any possible Proceeding, the Company, subject to subsection (c), shall promptly obtain and maintain in full force and effect directors' and officers' liability insurance ("D&O Insurance") in reasonable amounts from established and reputable insurers. (b) In all D&O insurance policies, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Company's directors and/or officers. (c) Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company determines, in its sole discretion, that such insurance is not reasonably available, the premium costs for such insurance is so limited by exclusions that it provides an insufficient benefit, or the Indemnitee is covered by similar insurance maintained by a subsidiary of the Company. 12. Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may be entitled under the Articles of Incorporation, Bylaws, any agreement, vote of shareholders or disinterested directors, provision of applicable corporate law, or otherwise, both as to action in his/her official capacity and as to action in another capacity on behalf of the Company while holding such office. 13. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of the Indemnitee and his/her heirs, executors, administrators and assigns, whether or not Indemnitee has ceased to be a director or officer, and the Company and its successors and assigns. 14. Severability. Each and every paragraph, sentence, term and provision hereof is separate and distinct so that if any paragraph, sentence, term or provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of any other paragraph, sentence, term or provision hereof. To the extent required, any paragraph, sentence, term or provision of this Agreement shall be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable corporate law. 15. Savings Clause. If this Agreement or any paragraph, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses, judgments, fines, penalties for ERISA excise taxes incurred with respect to any Proceeding to the full extent permitted by any applicable paragraph, sentence, term or provision of this Agreement that has not been invalidated or by any other applicable provision of applicable corporate law. 16. Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with the laws of the State of Delaware. 17. Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles of Incorporation, Bylaws, or by other agreements, including D&O Insurance policies. 18. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. 19. Notices. Any notice required to be given under this Agreement shall be directed: TO: Applied DNA Sciences, Inc. With a copy to: Andrea Cataneo, Esq. 81 Meadowbrook Road Randolph, NJ 07869 TO: Lawrence Lee _____________________ _____________________ _____________________ (Insert home address) or to such other address as either shall designate in writing. IN WITNESS WHEREOF, the parties have executed this Indemnity Agreement as of the date first written above. INDEMNITEE: /s/ Lawrence Lee ------------------------ By: /s/ Jaime Cardona Lawrence Lee ------------------------ Jaime Cardona, Secretary EX-10.2 5 prohealth8kex102110502.txt INDEMNITY AGREEMENT Exhibit 10.2 INDEMNITY AGREEMENT This Indemnity Agreement ("Agreement") is made as of November 8, 2002, by and between Applied DNA Sciences, Inc., a Nevada corporation (the "Company"), and Jaime Cardona ("Indemnitee"), a director and/or officer or key executive, employee or consultant of the Company, or a person serving at the request of the Company as a director, officer, employee or agent of another enterprise. RECITALS A. The Indemnitee is currently serving or has agreed to serve as a director and/or officer of the Company and in such capacity has rendered and/or will render valuable services to the Company. B. The Company has investigated the availability and sufficiency of liability insurance and applicable statutory indemnification provisions to provide its directors and officers with adequate protection against various legal risks and potential liabilities to which such individuals are subject due to their positions with the Company and has concluded that such insurance may be unavailable or too costly, and even if purchased it, and the statutory provisions, may provide inadequate and unacceptable protection to certain individuals requested to serve as its directors and/or officers. C. It is essential to the Company that it attract and retain as officers and directors the most capable persons available and in order to induce and encourage highly experienced and capable persons such as the Indemnitee to serve or continue to serve as a director and/or officer of the Company, the Board of Directors has determined, after due consideration and investigation of the terms and provisions of the Agreement and the various other options available to the Company and the Indemnitee in lieu hereof, that this Agreement is not only reasonable and prudent but necessary to promote and ensure the best interests of the Company and its stockholders. NOW, THEREFORE, in consideration of the services or continued services of the Indemnitee and in order to induce the Indemnitee to serve or continue to serve as director and/or officer, the Company and the Indemnitee do hereby agree as follows: 1. Definitions. As used in this Agreement: (a) The term "Proceeding" shall include any threatened, pending or completed inquiry, hearing, investigation, action, suit, arbitration or other alternative dispute resolution mechanism or proceeding, formal or informal, whether brought in the name of the Company or otherwise and whether of a civil, criminal or administrative or investigative nature, by reason of the fact that the Indemnitee is or was a director and/or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another enterprise, whether or not he/she is serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement is to be provided under this Agreement. (b) The term "Expenses" includes, without limitation: attorneys' fees, costs, disbursements and retainers; accounting and witness fees; fees of experts; travel and deposition costs; transcript costs, filing fees, telephone charges, postage, copying costs, delivery service fees and other expenses and obligations of any nature whatsoever paid or incurred in connection with any investigations, judicial or administrative proceedings and appeals, amounts paid in settlement by or on behalf of Indemnitee, and any expenses of establishing a right to indemnification, pursuant to this Agreement or otherwise, including reasonable compensation for time spent by the Indemnitee in connection with the investigation, defense or appeal of a Proceeding or action for indemnification for which he/she is not otherwise compensated by the Company or any third party. The term "Expenses" does not include the amount of judgments, fines, penalties or ERISA excise taxes actually levied against the Indemnitee. 2. Agreement to Serve. The Indemnitee agrees to serve or to continue to serve as a director and/or officer of the Company for so long as he/she is duly elected or appointed or until such time as he/she tenders his/her resignation in writing or is removed as a director and/or officer. However, nothing contained in this Agreement shall be construed as giving Indemnitee any right to be retained in the employ of the Company, any subsidiary or any other person. 3. Indemnification in Third Party Actions. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other that a Proceeding by or in the name of the Company to procure a judgment in its favor), by reason of the fact that the Indemnitee is or was a director and/or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another enterprise, against all Expenses, judgments, fines, penalties and ERISA excise taxes actually and reasonably incurred by the Indemnitee in connection with the defense or settlement of such a Proceeding, to the fullest extent permitted by applicable corporate law and the Company's Articles of Incorporation; provided that any settlement of a Proceeding be approved in writing by the Company. 4. Indemnification in Proceedings by or In the Name of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the name of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee was or is a director and/or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another enterprise, against all Expenses, judgments, fines penalties and ERISA excise taxes actually and reasonably incurred by the Indemnitee in connection with the defense or settlement of such a Proceeding, to the fullest extent permitted by applicable corporate law and the Company's Articles of Incorporation. 5. Conclusive Presumption Regarding Standards of Conduct. The Indemnitee shall be conclusively presumed to have met the relevant standards of conduct, if any, as defined by applicable corporate law, for indemnification pursuant to this Agreement, unless a determination is made that the Indemnitee has not met such standards (i) by the Board of Directors by a majority vote of a quorum thereof consisting of directors who were not parties to the Proceeding due to which a claim is made under this Agreement, (ii) by the shareholders of the Company by majority vote of a quorum thereof consisting of shareholders who are not parties to the Proceeding due to which a claim is made under this Agreement, (iii) in a written opinion by independent counsel, selection of whom has been approved by the Indemnitee in writing, or (iv) by a court of competent jurisdiction. 6. Indemnification of Expenses of Successful Party. Notwithstanding any other provision of the Agreement, to the extent that the Indemnitee has been successful in defense of any Proceeding or in defense of any claim, issue or matter therein, on the merits or otherwise, including the dismissal of a Proceeding without prejudice or the settlement of a Proceeding without an admission of liability, the Indemnitee shall be indemnified against all Expenses incurred in connection therewith to the fullest extent permitted by applicable corporate law. 7. Advances of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee to the fullest extent permitted by applicable corporate law; provided that the Indemnitee shall undertake in writing to repay any advances if it is ultimately determined that the Indemnitee is not entitled to indemnification. 8. Partial Indemnification. If the Indemnitee is entitled under any provision of the Agreement to indemnification by the Company for a portion of the Expenses, judgments, fines, penalties or ERISA excise taxes actually and reasonably incurred by him/her in the investigation, defense, appeal or settlement of any Proceeding but not, however, for the total amount of his/her Expenses, judgments, fines, penalties or ERISA excise taxes, the Company shall nevertheless indemnify the Indemnitee for the portion of Expenses, judgments, fines, penalties or ERISA excise taxes to which the Indemnitee is entitled. 9. Indemnification Procedure; Determination of Right to Indemnification. (a) Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in writing. The omission to so notify the Company, however, shall not relieve it from any liability, which it may have to the Indemnitee otherwise than under this Agreement. (b) If a claim for indemnification or advances under this Agreement is not paid by the Company within thirty (30) days of receipt of written notice, the rights provided by this Agreement shall be enforceable by the Indemnitee in any court of competent jurisdiction. The burden of proving by clear and convincing evidence that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors or stockholders of the Company or its independent legal counsel to have made a determination prior to the commencement of such action that indemnification or advances are proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors or shareholders of the Company or independent legal counsel that the Indemnitee has not met the applicable standard of conduct, shall be a defense to the action or create a presumption for the purpose of an action that the Indemnitee has not been the applicable standard of conduct. (c) The Indemnitee's Expenses incurred in connection with any Proceeding concerning his/her right to indemnification or advances in whole or part pursuant to this Agreement shall also be indemnified by the Company regardless of the outcome of such Proceeding. (d) With respect to any Proceeding for which indemnification is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof, with counsel satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on the Indemnitee without the Indemnitee's written consent. The Indemnitee shall have the right to employee his/her counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, in each of which cases the fees and expenses of the Indemnitee's counsel shall be advances by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded that there may be a conflict of interest between the Company and the Indemnitee. 10. Limitations on Indemnification. No payments pursuant to this Agreement shall be made by the Company: (a) To indemnify or advance funds to the Indemnitee expenses with respect to Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under applicable corporate law, but such indemnification or advancement of expenses may be provided by the Company in specific cases if the Board of Directors finds it to be appropriate; (b) To indemnify the Indemnitee for any Expenses, judgment, fines, penalties or ERISA excise taxes sustained in any Proceeding for which payment is actually made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance; (c) To indemnify the Indemnitee for any Expenses, judgment, fines, and/or penalties sustained in any Proceeding for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, the rules and regulations promulgated thereunder and amendments thereto or similar provisions of any federal, state or local statutory law; and (d) If a court of competent jurisdiction finally determines that any indemnification hereunder is unlawful. 11. Maintenance of Liability Insurance. (a) The Company hereby covenants and agrees that, as long as the Indemnitee continues to serve as a director and/or officer of the Company and thereafter as long as the Indemnitee may be subject to any possible Proceeding, the Company, subject to subsection (c), shall promptly obtain and maintain in full force and effect directors' and officers' liability insurance ("D&O Insurance") in reasonable amounts from established and reputable insurers. (b) In all D&O insurance policies, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Company's directors and/or officers. (c) Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company determines, in its sole discretion, that such insurance is not reasonably available, the premium costs for such insurance is so limited by exclusions that it provides an insufficient benefit, or the Indemnitee is covered by similar insurance maintained by a subsidiary of the Company. 12. Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may be entitled under the Articles of Incorporation, Bylaws, any agreement, vote of shareholders or disinterested directors, provision of applicable corporate law, or otherwise, both as to action in his/her official capacity and as to action in another capacity on behalf of the Company while holding such office. 13. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of the Indemnitee and his/her heirs, executors, administrators and assigns, whether or not Indemnitee has ceased to be a director or officer, and the Company and its successors and assigns. 14. Severability. Each and every paragraph, sentence, term and provision hereof is separate and distinct so that if any paragraph, sentence, term or provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of any other paragraph, sentence, term or provision hereof. To the extent required, any paragraph, sentence, term or provision of this Agreement shall be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable corporate law. 15. Savings Clause. If this Agreement or any paragraph, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses, judgments, fines, penalties for ERISA excise taxes incurred with respect to any Proceeding to the full extent permitted by any applicable paragraph, sentence, term or provision of this Agreement that has not been invalidated or by any other applicable provision of applicable corporate law. 16. Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with the laws of the State of Delaware. 17. Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles of Incorporation, Bylaws, or by other agreements, including D&O Insurance policies. 18. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. 19. Notices. Any notice required to be given under this Agreement shall be directed: TO: Applied DNA Sciences, Inc. With a copy to: Andrea Cataneo, Esq. 81 Meadowbrook Road Randolph, NJ 07869 TO: Jaime Cardona _____________________ _____________________ _____________________ (Insert home address) or to such other address as either shall designate in writing. IN WITNESS WHEREOF, the parties have executed this Indemnity Agreement as of the date first written above. INDEMNITEE: /s/ Jaime Cardona ---------------------------------- Jaime Cardona By: /s/ Lawrence Lee ------------------------------------ Lawrence Lee, President and Director EX-16.1 6 prohealth8kex161110502.txt LETTER FROM S.W. HATFIELD, CPA S. W. HATFIELD, CPA certified public accountants Member: Texas Society of Certified Public Accountants Press Club of Dallas November 18, 2002 U. S. Securities and Exchange Commission 450 Fifth Street, NW Washington, DC 20549 Gentlemen: On November 18, 2002, this Firm received a draft copy of a Form 8-K to be filed by ProHealth Medical Technologies, Inc. (Company) (SEC File #2-90519, CIK #744452) reporting Item 4 - Changes in Registrant's Certifying Public Accountant. We have no disagreements with the statements made in the Form 8-K, Item 4 disclosures. Yours truly, /s/ S. W. Hatfield, CPA S. W. Hatfield, CPA -----END PRIVACY-ENHANCED MESSAGE-----