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): May 8, 2020
Health Discovery Corporation
(Exact name of registrant as specified in charter)
| Georgia | 333-62216 | 74-3002154 |
| (State of incorporation) | (Commission File Number) |
(IRS Employer Identification No.) |
2002 Summit Blvd, Suite 300, Atlanta GA 30319
(Address of principal executive offices / Zip Code)
(404) 566-4865
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| o | Written communications pursuant to Rule 425 under the Securities Act. | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act. | |
| o | Pre-commencement communications pursuant to Rule 14d—2(b) under the Exchange Act. | |
| o | Pre-commencement communications pursuant to Rule 13e—4(c) under the Exchange Act. |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Common | HDVY | NA |
Item 5.03 Amendments to Articles of Incorporation or Bylaws.
On May 8, 2020 the Board amended the Company Bylaws to, among things, allow for the Company’s meeting of shareholders to be held solely by means of remote communication as authorized by, and to the extent permitted by, Executive Order No. 03.20.20.02 of the State of Georgia or the laws of the State of Georgia. As a Georgia corporation, the Company Bylaws did not allow for shareholder meetings to be held solely by means of remote communication. Given the circumstances related to the COVID-19 pandemic and regulations relating to gatherings, these changes were made to allow for the annual shareholder meeting to be held solely by means of remote communication. The amendment was approved by unanimous consent of the Company’s Board. A copy of the amended Bylaws is attached as Exhibit 3.2.
Item 8.01 Other Events.
On March 25, 2020, the Securities and Exchange Commission announced that it is extending the filing periods covered by its previously enacted conditional reporting relief for certain public company filing obligations under the federal securities laws. Specifically, the Securities and Exchange Commission’s Order under Section 36 of the Securities Exchange Act of 1934 Granting Exemptions From Specified Provisions of the Exchange Act and Certain Rules Thereunder dated March 25, 2020 (Release No. 34-88465) (the “Order”) extends the filing date of the Quarterly Report on Form 10-Q for the period ended March 31, 2020 (the “Report”) due to the circumstances related to COVID-19. Health Discovery Corporation (the “Company”) will be relying on this Order and intends to comply within the timeframe authorized by the Order. In particular, COVID-19 has caused severe disruptions in transportation and limited access to the Company’s facilities, resulting in limited support from its staff and professional advisors. This has, in turn, delayed the Company’s ability to complete its audit and prepare the Report. Notwithstanding the foregoing, the Company expects to file the Report as soon as possible.
In light of the current COVID-19 pandemic, the Company will be including the following disclosure in the Management’s Discussion and Analysis of Financial Condition Section in its Report:
The recent coronavirus (COVID-19) outbreak could adversely affect our financial condition and results of operation.
In December 2019, a novel strain of coronavirus (COVID-19) was reported to have surfaced in Wuhan, China. The impact of the outbreak of COVID-19 on the businesses and the economy in the United States and the rest of the world is unknown but does appear to be significant. The extent to which the COVID-19 outbreak will impact business and the economy is highly uncertain and cannot be predicted. Accordingly, we cannot predict the extent to which our financial condition and results of operations will be affected.
As previously disclosed, Health Discovery Corporation (the “Company”) stated that it intended to schedule a shareholder meeting as soon as possible, but no later than June 30, 2020. On March 20, 2020, the Company’s board of directors (the “Board”) decided to hold the annual meeting of shareholders on May 27, 2020. On May 12, 2020, the Company posted information for this annual meeting of shareholders on the Company website, www.healthdiscoverycorp.com, under the section titled “Shareholder Meeting Information.”
As previously disclosed, on March 2, 2020, two shareholders of the Company, William F. Quirk, Jr. (“Quirk”) and Cindy Bear (“Bear”), filed a lawsuit against the Company alleging misconduct by the Company and its directors. On March 5, 2020, the Court denied Bear and Quirk’s motion for a temporary restraining order.
The Court scheduled a hearing on Bear and Quirk’s motion for a preliminary injunction on March 27, 2020. The week before the hearing, Fox Rothschild LLP, counsel for Bear and Quirk, agreed to continue and reschedule the hearing. No hearing date has since been rescheduled.
On May 5, 2020, Fox Rothschild LLP moved to withdraw as counsel for Bear and Quirk abruptly and without notice. On May 13, 2020, the Court entered an order granting the law firm’s withdrawal as counsel. As of May 13, 2020, Bear and Quirk are representing themselves pro se.
The Company will continue to refute the baseless claims brought by Bear and Quirk, and is evaluating its rights including, but not limited to, recoupment from Bear and Quirk of the Company’s attorneys’ fees and costs incurred in doing so.
Item 9.01 Financial Statements and Exhibits
| (a) | Not applicable |
| (b) | Not applicable |
| (c) | Not applicable |
| (d) | Exhibits |
| 3.2 | Amendment to the Bylaws of Health Discovery Corporation. |
| 99.1 | Plaintiff’s Counsel Motion to Withdrawal |
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 thereunto duly authorized.
| HEALTH DISCOVERY CORPORATION | |||
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| Dated: May 14, 2020 | By: | /s/ George H. McGovern, III | |
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George H. McGovern, III Chairman & Chief Executive Officer |
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EXHIBIT 3.2
AMENDMENT TO THE BYLAWS
OF
HEALTH DISCOVERY CORPORATION
In accordance with resolutions adopted by the Board of Directors of Health Discovery Corporation, a Georgia corporation (the “Corporation”), the Bylaws of the Corporation (the “Bylaws”) are hereby amended as set forth in this Amendment to the Bylaws, effective May 8, 2020.
AMENDMENT
| 1. | Article Two, Section 1 of the Bylaws is deleted in its entirety and replaced with the following: |
“2.1 Annual Meeting. A meeting of shareholders of the Corporation shall be held annually, within six (6) months after the end of each fiscal year of the Corporation. The annual meeting shall be held at such time and place, and on such date, as the Directors shall determine from time to time and as shall be specified in the notice of the meeting. The Board of Directors may, in its sole discretion, determine that an annual meeting of shareholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by, and to the extent permitted by, Executive Order No. 03.20.20.02 of the State of Georgia or the laws of the State of Georgia.”
| 2. | Article Two, Section 2 of the Bylaws is deleted in its entirety and replaced with the following: |
“2.2 Special Meetings. Special meetings of the shareholders may be called at any time by the Corporation’s Board of Directors, its President, or by the Corporation upon the written request of any one or more shareholders owning an aggregate of not less than twenty-five percent (25%) of the outstanding capital stock of the Corporation. Special meetings shall be held at such a time and place and on such date as shall be specified in the notice of the meeting. The Board of Directors may, in its sole discretion, determine that a special meeting of shareholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by, and to the extent permitted by, Executive Order No. 03.20.20.02 of the State of Georgia or the laws of the State of Georgia.”
| 3. | Article Two, Section 3 of the Bylaws is deleted in its entirety and replaced with the following: |
“2.3 Place. Annual or special meetings of shareholders may be held within or without the State of Georgia or may not be held at any place but may instead be held solely by means of remote communication as authorized by, and to the extent permitted by, Executive Order No. 03.20.20.02 of the State of Georgia or the laws of the State of Georgia.”
| 4. | Article Two, Section 4 of the Bylaws is deleted in its entirety and replaced with the following: |
“2.4 Notice. Notice of annual or special shareholders meetings stating the place, day and hour of the meeting, and the means of remote communication, if any, shall be given in writing not less than ten (10) nor more than sixty (60) days before the date of the meeting, either mailed to the last known address or personally given to each shareholder entitled to vote at the meeting. Notice of any special meeting of shareholders shall state the purpose or purposes for which the meeting is called. The notice of any meeting at which amendments to or restatements of the Articles of Incorporation, merger or share exchange of the Corporation, or the disposition of corporate assets requiring shareholder approval are to be considered shall state such purpose, and shall further comply with all requirements of law. Notice of a meeting may be waived by an instrument in writing executed before or after the meeting. The waiver need not specify the purpose of the meeting or the business transacted, unless one of the purposes of the meeting concerns a plan of merger or share exchange, in which event the waiver shall comply with the further requirements of law concerning such waivers. Attendance at such meeting in person or by proxy shall constitute a waiver of notice thereof.”
| 1 |
EXHIBIT 3.2
| 5. | Article Two, Section 5 of the Bylaws is deleted in its entirety and replaced with the following: |
“2.5 Quorum. Shares entitled to vote as a separate voting group may take action on a matter at a meeting of shareholders only if a quorum of those shares exists with respect to that matter. A majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on that matter. A lesser number may adjourn from day to day, and shall announce the time and place to which the meeting is adjourned.”
| 6. | Except as amended hereby, all terms and provisions of the Bylaws shall remain in full force and effect. |
CERTIFICATION OF BYLAWS
The foregoing Amendment to the Bylaws of Health Discovery Corporation, together with the Bylaws of Health Discovery Corporation, are the Bylaws of the Corporation, and are certified to have been adopted by the Board of Directors of the Corporation effective as of the date first set forth above.
| /s/ George H. McGovern, III | |
| George H. McGovern, III | |
| Chairman & CEO |
| 2 |
EXHIBIT 99.1
IN
THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
| CINDY BEAR and WILLIAM F. | ) | |
| QUIRK, JR., | ) | |
| ) | ||
| Plaintiffs, | ) | |
| ) | Civil Action No. | |
| v. | ) | |
| ) | 2020CV333862 | |
| HEALTH DISCOVERY | ) | |
| CORPORATION, a Georgia corporation; | ) | |
| GEORGE H. MCGOVERN, III; | ) | |
| COLLEEN M. HUTCHINSON; | ) | |
| WILLIAM F. FROMHOLZER; JAMES | ) | |
| MURPHY; EDWARD MORRISON; | ) | |
| MARTY DELMONTE and JAMES | ) | |
| DENGLER, | ) | |
| ) | ||
| Defendants. |
MOTION TO WITHDRAW AS COUNSEL OF RECORD
Now come Dorothy H. Cornwell, Nicholas B. Corser, and Fox Rothschild LLP, attorneys of record for Plaintiffs CINDY BEAR and WILLIAM F. QUIRK, and respectfully request leave to withdraw as counsel of record under the provisions of Rule 4.3 of the Uniform Superior Court Rules of Georgia.
The undersigned have given their clients, the Plaintiffs, due written notice of their intention to withdraw, as shown by the Notice of Intent to Withdraw as Counsel for Plaintiffs (the “Notice”) attached to the Notification Certificate filed herewith, more than 10 days prior to submitting this request to the Court. Notice was provided to Plaintiffs via email.
| 1 |
In accordance with Rule 4.3 and the Notice, the undersigned certify that Plaintiffs have been informed of the following:
| a. | The undersigned intend to withdraw as counsel of record; | |
| b. | The Superior Court of Fulton County retains jurisdiction of this action; | |
| c. | Plaintiffs each have the burden of keeping the Court informed of their current addresses for the service of notices, pleadings, or other papers; | |
| d. | Plaintiffs each have the obligation to prepare for trial or hire new counsel to prepare for trial, when the trial date has been scheduled and to conduct and respond to discovery or motions in the case. | |
| e. | If either or both of the Plaintiffs fails or refuses to meet these burdens, either or both of the Plaintiffs may suffer adverse consequences, including, in criminal cases, bond forfeiture and arrest. | |
| f. | There are currently no scheduled hearings, trials, or other proceedings scheduled in the above-styled action; as such, no hearing, trial, or other proceeding will be affected by the withdrawal of counsel. | |
| g. | Service of notices may be made upon each of the Plaintiffs at each of their last known addresses: |
| Cindy Bear: |
10521 E. Windrose Drive Scottsdale, AZ 85259 |
| William F. Quirk, Jr.: |
10 Water Witch Crossing Savannah, GA 31411 |
| h. | A corporation may only be represented in Court by an attorney, and an attorney must sign all pleadings submitted to the Court, and a corporate officer may not represent the corporation in Court unless that officer is also an attorney licensed to practice law in the State of Georgia or is otherwise allowed by law; and |
| 2 |
| i. | The Plaintiffs were required to object to counsel’s withdrawal within 10 days of the Notice, on or before April 20, 2020. |
More than 10 days have elapsed since the Notice was provided to the Plaintiffs, and the undersigned have received no objection to their withdrawal.
Granting this request will not delay the trial or otherwise interrupt the orderly operation of the Court or be manifestly unfair to the Plaintiffs.
Notice has been given to opposing counsel by copy of this motion. The notification certificate required by Rule 4.3 of the Uniform Superior Court Rules is attached hereto as Exhibit A. The Plaintiffs’ last known mailing and electronic addresses and telephone numbers are:
| Cindy Bear: |
10521 E. Windrose Drive Scottsdale, AZ 85259 cbdbear@aol.com 480-329-7761 |
| William F. Quirk, Jr.: |
10 Water Witch Crossing Savannah, GA 31411 wfquirk@bellsouth.net 912-323-3169 |
WHEREFORE, the undersigned respectfully pray for an order permitting withdrawal of counsel. A proposed order is submitted herewith.
This 5th day of May, 2020.
| /s/ Dorothy H. Cornwell | |
| Dorothy H. Cornwell | |
| Georgia Bar No. 552635 | |
| /s/ Nicholas B. Corser | |
| Nicholas B. Corser | |
| Georgia Bar No. 290744 |
FOX ROTHSCHILD LLP
999 Peachtree Street NE, Suite 1500
Atlanta, Georgia 30309
Telephone: (404) 962-1200
Facsimile: (404) 962-1200
dcornwell@foxrothschild.com
ncorser@foxrothschild.com
| 3 |
CERTIFICATE OF SERVICE
This is to certify that the undersigned has served the foregoing pleading upon all parties to this action by electronically filing it with the Clerk of Court using Odyssey, which will send notification by email of such filing to:
Lucas Westby
Erika Birg
Lee D. Wedekind
NELSON MULLINS RILEY & SCARBOROUGH LLP
This is to further certify that the undersigned has served the foregoing pleading upon the
Plaintiffs in this action via U.S. Mail and electronic mail, as follows:
| Cindy Bear: |
10521 E. Windrose Drive Scottsdale, AZ 85259 cbdbear@aol.com |
| William F. Quirk, Jr.: |
10 Water Witch Crossing Savannah, GA 31411 wfquirk@bellsouth.net |
This 5th day of May, 2020.
| /s/ Dorothy H. Cornwell | |
| Dorothy H. Cornwell |
| 4 |
Exhibit A
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
| CINDY BEAR and WILLIAM F. | ) | |
| QUIRK, JR., | ) | |
| ) | ||
| Plaintiffs, | ) | |
| ) | Civil Action No. | |
| v. | ) | |
| ) | 020CV333862 | |
| HEALTH DISCOVERY | ) | |
| CORPORATION, a Georgia corporation; | ) | |
| GEORGE H. MCGOVERN, III; | ) | |
| COLLEEN M. HUTCHINSON; | ) | |
| WILLIAM F. FROMHOLZER; JAMES | ) | |
| MURPHY; EDWARD MORRISON; | ) | |
| MARTY DELMONTE and JAMES | ) | |
| DENGLER, | ) | |
| ) | ||
| Defendants. |
NOTIFICATION CERTIFICATE
The Notice of Intent to Withdraw as Counsel for Plaintiffs, attached hereto, was provided to Plaintiffs CINDY BEAR and WILLIAM F. QUIRK, Jr. by the most expedient means available, at their last known electronic addresses. The Plaintiffs’ last known contact information is
| Cindy Bear: |
10521 E. Windrose Drive Scottsdale, AZ 85259 cbdbear@aol.com 480-329-7761 |
| William F. Quirk, Jr.: |
10 Water Witch Crossing Savannah, GA 31411 wfquirk@bellsouth.net 912-323-3169 |
This 5th day of May, 2020.
| /s/ Dorothy H. Cornwell | |
| Dorothy H. Cornwell | |
| Georgia Bar No. 552635 | |
| Nicholas B. Corser | |
| Georgia Bar No. 290744 |
FOX ROTHSCHILD LLP
999 Peachtree Street NE, Suite 1500
Atlanta, Georgia 30309
Telephone: (404) 962-1200
Facsimile: (404) 962-1200
dcornwell@foxrothschild.com
ncorser@foxrothschild.com
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
| CINDY BEAR and WILLIAM F. | ) | |
| QUIRK, JR., | ) | |
| ) | ||
| Plaintiffs, | ) | |
| ) | Civil Action No. | |
| v. | ) | |
| ) | 2020CV333862 | |
| HEALTHDISCOVERY | ) | |
| CORPORATION, a Georgia corporation; | ) | |
| GEORGE H. MCGOVERN, III; | ) | |
| COLLEEN M. HUTCHINSON; | ) | |
| WILLIAM F. FROMHOLZER; JAMES | ) | |
| MURPHY; EDWARD MORRISON; | ) | |
| MARTY DELMONTE and JAMES | ) | |
| DENGLER, | ) | |
| ) | ||
| Defendants. |
NOTICE OF INTENT TO WITHDRAW AS COUNSEL FOR PLAINTIFFS
Now come Dorothy H. Cornwell, Nicholas B. Corser, and Fox Rothschild LLP, attorneys of record for Plaintiffs CINDY BEAR and WILLIAM F. QUIRK, Jr. (the "Clients"), and pursuant to Uniform Superior court Rule 4.3, provide this Notice of Intent to Withdraw as counsel of record for the Plaintiffs as follows:
| a) | The undersigned wish to withdraw as counsel of record for the Clients in the above- styled case. | |
| b) | The Superior Court of Fulton County retains jurisdiction of this action. | |
| c) | The Clients each have the burden of keeping the Court informed respecting where notices, pleadings, or other papers may be served. |
| d) | The Clients each have the obligation to prepare for trial or hire new counsel to prepare for trial, when the trial date has been scheduled and to conduct and respond to discovery or motions in the case. | |
| e) | If either or both of the Clients fails or refuses to meet these burdens, either or both of the Clients may suffer adverse consequences, including, in criminal cases, bond forfeiture and arrest. | |
| f) | There are currently no scheduled hearings, trials, or other proceedings scheduled in the above-styled action; as such, no hearing, trial, or other proceeding will be affected by the withdrawal of counsel. | |
| g) | Service of notices may be made upon each of the Clients at each of their last known mailing addresses: |
| Cindy Bear: |
10521 E. Windrose Drive Scottsdale, AZ 85259 |
| William F. Quirk, Jr.: |
10 Water Witch Crossing Savannah, GA 31411 |
| h) | A corporation may only be represented in Court by an attorney, and an attorney must sign all pleadings submitted to the Court, and a corporate officer may not represent the corporation in Court unless that officer is also an attorney licensed to practice law in the State of Georgia or is otherwise allowed by law; and | |
| i) | The Clients have the right to object within 10 days of the date of this Notice, on or before April 20, 2020. |
This 7th day of April, 2020.
| /s/ Dorothy H. Cornwell | |
| Dorothy H. Cornwell | |
| Georgia Bar No. 552635 | |
| Nicholas B. Corser | |
| Georgia Bar No. 290744 |
FOX ROTHSCHILD LLP
999 Peachtree Street NE, Suite 1500
Atlanta, Georgia 30309
Telephone: (404) 870-3763
Telecopier: (404) 962-1200
DCornwell@foxrothschild.com
NCorser@foxrothschild.com
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
| CINDY BEAR and WILLIAM F. | ) | |
| QUIRK, JR., | ) | |
| ) | ||
| Plaintiffs, | ) | |
| ) | Civil Action No. | |
| v. | ) | |
| ) | 2020CV333862 | |
| HEALTH DISCOVERY | ) | |
| CORPORATION, a Georgia corporation; | ) | |
| GEORGE H. MCGOVERN, III; | ) | |
| COLLEEN M. HUTCHINSON; | ) | |
| WILLIAM F. FROMHOLZER; JAMES | ) | |
| MURPHY; EDWARD MORRISON; | ) | |
| MARTY DELMONTE and JAMES | ) | |
| DENGLER, | ) | |
| ) | ||
| Defendants. |
ORDER
The Court has considered the Motion to Withdraw as Counsel of Record, filed by Dorothy H. Cornwell, Nicholas B. Corser, and Fox Rothschild LLP (collectively, “Counsel”), counsel for Plaintiffs. The record demonstrates that:
| a. | Counsel provided Plaintiffs with notice of their intention to withdraw as counsel of record on April 7, 2020, via email to Plaintiffs at their last known electronic addresses; | |
| b. | More than ten days have elapsed since the notice was provided to Plaintiffs, and Counsel has not received any objection from Plaintiffs; | |
| c. | Counsel’s notice to Plaintiffs informed Plaintiffs of all information required by Rule 4.3 of the Uniform Superior Court Rules; |
| d. | Granting the Motion to Withdraw as Counsel of Record will not delay the trial of this matter or otherwise interrupt the orderly operation of the Court or be manifestly unfair to the Plaintiffs. |
In light of the foregoing, the Court hereby GRANTS the Motion to Withdraw as Counsel of Record.
NOW, THEREFORE, IT IS HEREBY ORDERED as follows:
Dorothy H. Cornwell, Nicholas B. Corser, and Fox Rothschild LLP are permitted to withdraw as counsel of record for the Plaintiffs. The Court will retain jurisdiction of this action, and Plaintiffs have the burden of keeping the Court informed respecting where notices, pleadings, and other papers may be served. Plaintiffs have the obligation to prepare for trial, when the trial date has been scheduled, and to conduct and respond to discovery or motions in the case. If Plaintiffs fail or refuse to meet these burdens, they may suffer adverse consequences.
Until Plaintiffs inform the Court otherwise, service shall be made upon the Plaintiffs as follows:
| To Cindy Bear: |
10521 E. Windrose Drive Scottsdale, AZ 85259 cbdbear@aol.com |
| To William F. Quirk, Jr.: |
10 Water Witch Crossing Savannah, GA 31411 wfquirk@bellsouth.net |
SO ORDERED, this day of , 2020.
| Judge Eric Dunaway | |
| Superior Court of Fulton County |
Order prepared by:
/s/ Dorothy H. Cornwell
Dorothy H. Cornwell
Georgia Bar No. 552635
Nicholas B. Corser
Georgia Bar No. 290744
FOX ROTHSCHILD LLP
999 Peachtree Street NE, Suite 1500
Atlanta, Georgia 30309
Telephone: (404) 962-1200
Facsimile: (404) 962-1200
dcornwell@foxrothschild.com
ncorser@foxrothschild.com