EXHIBIT 10.32 TO FORM 10-KSB PACIFIC BIOMETRICS INC. 6/30/01
SECOND AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE OF ASSETS
This Second Amendment To Agreement Of Purchase And Sale of
Assets (the "Amendment") is made and entered into effective this 4th day of
August, 2000, by and between Saigene Corporation, a Delaware corporation (the
"Buyer"), on the one hand, and Pacific Biometrics, Inc., a Delaware corporation
(hereinafter referred to as the "Parent"), and Pacific Biometrics, Inc., a
Washington corporation (hereinafter referred to as the "Subsidiary"), on the
other hand. Parent and Subsidiary are sometimes hereinafter collectively
referred to as the "Selling Parties."
RECITALS:
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WHEREAS, the parties have entered into that certain Agreement
Of Purchase And Sale Of Assets, dated April 18, 2000, by and between the Buyer
and Selling Parties (the "Asset Purchase Agreement") and the First Amendment to
Agreement of Purchase and Sale of Assets, dated June 22, 2000 (the "First
Amendment"); and
WHEREAS, Buyers seeks to modify the timing of the payments
required under the Asset Purchase Agreement and the First Amendment and to
extend the Closing Date; and
WHEREAS, Selling Parties are willing to modify the timing of
the payments and to extend the Closing Date of the Asset Purchase Agreement, as
amended by the First Amendment, on the terms and conditions state herein.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
AGREEMENT:
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1. EXTENSION OF CLOSING DATE. The parties agree that the term
"Closing Date" shall now mean January 20, 2001 instead of August 15, 2000.
Notwithstanding the foregoing, Buyer may advance the Closing Date at any time by
paying the remaining balance of the Purchase Price, or may extend the Closing
Date as provided in Section 3, below.
2. PAYMENT OF PURCHASE PRICE. The parties acknowledge and
agree that Buyer has paid Seventy-Five Thousand Dollars ($75,000.00) of the One
Hundred Fifty Thousand Dollars ($150,000.00) required to be paid, on or before
July 15, 2000, under the First Amendment, and that the following provisions
shall replace the provisions of the First Amendment with respect to the payment
of the Purchase Price: (a) In addition to the $75,000.00
Exhibit 10.32, Page 1
previously paid on or about July 17, 2000, Buyer shall pay Selling Parties the
sum of Twenty Thousand Dollars ($20,000.00) on August 28, 2000, and then pay
$20,000.00 on the 20th day of each calendar month thereafter until the Closing
Date (which $20,000.00 payments shall each hereinafter collectively be referred
to as the "Extension Payments"); (b) Ten Thousand Dollars ($10,000.00) of each
of the Extension Payments shall constitute consideration for the extension of
the Closing Date and shall not be credited towards payment of the Purchase
Price, and the remaining Ten Thousand Dollars ($10,000.00) of each such
Extension Payment shall be credited against the cash portion of the Purchase
Price; (c) on the Closing Date, Buyer shall pay to Selling Parties the remaining
cash portion of the Purchase Price required under Section 1.3(d)(ii) of the
Asset Purchase Agreement (which amount is currently $275,000.00); and (d) on the
Closing Date, Buyer shall place Three Hundred Thousand Dollars ($300,000.00)
into escrow as required under Section 1.3(d)(iii) of the Asset Purchase
Agreement, subject to reduction as provided in this Second Amendment. The
$10,000.00 of each Extension Payment credited against the Purchase Price shall
reduce the $300,000.00 Buyer is required to place in escrow at the Closing under
Section 1.3(d)(iii) of the Asset Purchase Agreement. The Extension Payments are
subject to the same conditions as the Fifty Thousand Dollars ($50,000.00)
previously paid under section 1.3(d)(i) of the Asset Purchase Agreement.
Additionally, Buyer's failure to pay any Extension Payment within Five (5) days
of its due date shall constitute a material default by Buyer.
3. FURTHER EXTENSION OF CLOSING DATE. Buyer may extend the
Closing Date beyond January 20, 2001, for additional 30-day periods by paying to
Selling Parties the sum of Thirty Thousand Dollars ($30,000.00) for each such
extension (the "Extension Fee"). Fifteen Thousand Dollars ($15,000.00) of each
Extension Fee paid by Buyer shall constitute consideration of the additional
extension of the Closing Date and shall not be credited towards payment of the
Purchase Price, and the remaining Fifteen Thousand Dollars ($15,000.00) of each
Extension Fee shall be credited against the cash portion of the Purchase Price.
Again, the $15,000.00 of each Extension Fee credited against the Purchase Price
shall reduce the $300,000.00 Buyer is required to place in escrow at the Closing
under Section 1.3(d)(iii) of the Asset Purchase Agreement. However, in the event
that the Closing does not take place on or before January 20, 2001, then the
Selling Parties may terminate the Asset Purchase Agreement at the end of any
extension period by giving Buyer not less than Twenty (20) days written notice.
For example, if the Closing does not occur on or before January 20, 2001, and
Buyer pays the Extension Fee to the Selling Parties on or before such date
(thereby extending the Closing Date to February 19, 2001), then the Selling
Parties may terminate the Asset Purchase Agreement on February 19, 2001
(assuming the Closing does not occur on or before such date) by giving Buyer
written notice on or before January 31, 2001 of their intent to terminate the
Asset Purchase Agreement as of February 19, 2001.
4. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be
executed in one or more counterparts, using facsimile signatures, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
5. OTHER TERMS REMAIN IN EFFECT. All other terms and
provisions of the Asset Purchase Agreement and First Amendment shall remain in
full force and effect. Any
Exhibit 10.32, Page 2
capitalized terms not defined herein shall have the meanings set forth in the
Asset Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Second Amendment as of the day and year first above written.
BUYER PARENT
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Saigene Corporation Pacific Biometrics, Inc.,
a Delaware corporation a Delaware corporation
By: /s/__________________________ By: /s/__________________________
Xxxxxx X. Xxxx Xxxx Xxxxx
Its: Chief Executive Officer Its: Chief Executive Officer
SUBSIDIARY
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Pacific Biometrics, Inc.,
a Washington corporation
By: /s/__________________________
Xxxx Xxxxx
Its: Chief Executive
Exhibit 10.32, Page 3
