FUNDING AGREEMENT
THIS FUNDING AGREEMENT made this 25th day of October, 2002 by and among
DNAPRINT GENOMICS, INC., a corporation organized under the laws of the state of
Utah (the "Company"), XXXX XXXXXXXX, a citizen of the state of Florida ("X.
Xxxxxxxx"), XXXXXX XXXXXXXX, a citizen of the state of Florida ("X. Xxxxxxxx"),
(collectively with X. Xxxxxxxx, X. Xxxxxxxx or each individually an "Investor").
RECITALS
WHEREAS, the Company desires to complete its procurement of funding at a
level of Two Million Dollars ($2,000,000) which commenced March 1, 2002 (the
"Term") pursuant to a Funding Agreement dated February 25, 2002, and extended
for a ten (10) month period; and,
WHEREAS, the Investors desire to modify the terms of the previous funding
agreement.
NOW THEREFORE, the parties hereby revise the previous funding agreement to
read as follows:
1. Funding. Beginning August 29, 2002, each Investor agrees to provide a
loan of not less than Five Hundred Thousand Dollars ($500,000) to the Company in
equal quarterly installments of $125,000, each on Dec 31, 2002, April 30, 2003,
August 30, 2003 and Dec 31, 2003 (each a "Funding Date").
2. Consideration. In consideration for the payments set forth above, and on
December 30, 2003, the Company shall repay the principal together with simple
interest at a rate of 8% per annum. If for any reason the Company shall fail to
repay the loan at maturity, the sole remedy of the Investors shall be the
issuance by the Company of shares of its restricted common stock. The number of
shares to be issued will be calculated using the then-current principal balance,
together with accrued but unpaid interest, and a share price based on the
trailing 30 trading-day volume weighted average price ("VWAP") at the time each
funding installment is made, such that if the VWAP is $0.05 per share or above,
the number of shares due will be calculated using a $0.035 per share rate, and
if the VWAP is below $0.05 per share, the number of shares due will be
calculated using a 40% discount to the VWAP, however, under this agreement under
no circumstances will shares be issued to Investors for less than $.01 per
share.
3. Joint and Several Liability. The liability of the Investors to the
Company to make the required payments shall be joint and several. Thus, if in
any quarter during the Term one or more of the Investors defaults in his
obligation to make his required payment, the remaining non-defaulting Investors,
within five (5) business days of receipt of written notice from the Company of
such default, shall each pay to the Company his pro rata share of the payment
amounts in default.
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4. Indemnification. Each Investor who defaults in his obligations hereunder
agrees to protect, indemnify and hold each of the other Investors harmless from
and against all damages, losses, claims, cost, expenses or actions arising from
said Investor's default.
5. Miscellaneous.
a. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered, mailed or transmitted, and shall be
effective upon actual receipt, if delivered personally or by courier,
mailed by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by like changes of address) or
sent by electronic transmission to the facsimile number specified below:
If to Company:
DNAPrint genomics, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxx
If to X. Xxxxxxxx:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
If to X. Xxxxxxxx:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
or to such other address as any party may have furnished in writing the other
parties in the manner provided above.
b. Parties Bound. The provisions of this Agreement shall apply to,
inure to the benefit of, and be binding upon the parties hereto and their
respective heirs, successors, assigns, administrators, executors. In no
event may any party assign any of its rights, privileges, duties, or
obligations hereunder. Any assignment in violation of the foregoing shall
be null and void.
c. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
shall be deemed collectively one agreement, but, in making proof hereof, it
shall never be necessary to exhibit more than one such counterpart.
d. Entire Agreement: Modifications. This Agreement constitutes the
final, exclusive, and complete understanding of the parties with respect to
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the subject matter hereof and supersedes any and all prior agreements,
understandings and discussions with respect thereto.
e. Captions. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
f. Governing Law. This Agreement shall be governed by and enforceable
under, and construed in accordance with, the laws of Florida, regardless of
the laws that might otherwise govern under applicable principles of
conflicts of law.
g. Third Party Beneficiaries. No individual, firm, corporation,
partnership, or other entity shall be a third-party beneficiary of this
Agreement.
h. Remedies Cumulative. The remedies of the parties under this
Agreement are cumulative and will not exclude any other remedies to which
any party may be lawfully entitled.
i. Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by such illegal, invalid, or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid, or an
enforceable provision, there shall be added automatically as part of this
Agreement a provision as similar in its terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and
enforceable.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties have executed this Funding and Subscription
Agreement on the date set forth above.
DNAPRINT GENOMICS, INC.
By:/s/Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
As its President
INVESTORS
/s/Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
/s/Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Agreed to and Ratified by the DNAPrint Board of Directors:
/s/Xxxx Xxxxxxx
Xxxx Xxxxxxx
/s/Xxxxxx Xxxxx
Xxxxxx Xxxxx
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