Exhibit 10.39
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into effective as of this 7th day of April, 2005, by and between PARADIGM
MEDICAL INDUSTRIES, INC., a Delaware corporation (the "Company"), and MACKEY
PRICE XXXXXXXX & XXXXXX, a professional corporation (the "Investor").
R E C I T A L S :
WHEREAS, the Company has provided a Prospectus (the "Prospectus") dated
February 10, 2005 (the "Effective Date) in connection with the offering (the
"Offering") by the Company of 15,000,000 registered shares of the Company's
Common Stock, $.001 par value per share (individually a "Share" or the "Common
Stock" and collectively, the "Shares"), to prospective investors, including the
Investor;
WHEREAS, the Investor and/or the Investor's financial advisors and
representatives (the "Purchaser Representative"), if any, have thoroughly read
and reviewed the Prospectus and all documents and agreements referenced therein
and all other documents and agreements deemed relevant in connection with the
Investor's investment decision;
WHEREAS, the Company desires to issue to the Investor the Shares (as
that term is defined in Section 1 below) of the Company's Common Stock in
payment for legal services that Investor has provided to the Company, and the
Investor desires to accept such Shares in payment for such legal services;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
mutually agree as follows:
Purchase and Sale of Shares. Subject to the terms and conditions of
this Agreement, the Company hereby agrees to issue to the Investor, and the
Investor agrees to accept from the Company, a total of two hundred fifty
thousand (250,000) shares of the Company's registered and unrestricted Common
Stock (the "Shares") in payment for legal services that the Investor provided to
the Company in the amount of twenty-two thousand five hundred dollars ($22,500).
1. Issuance of Certificate. As soon as reasonably practicable following
the receipt of an executed copy of this Agreement from the Investor, the Company
will deliver to the Investor a stock certificate in the form prescribed by
applicable law representing the Shares and all rights attaching thereto. It is
hereby understood and agreed that the Shares will be issued in favor of and in
the name of the Investor as indicated on the signature page herein.
2. Representations and Warranties of the Company. Except as otherwise
set forth in this Agreement, the Company hereby represents and warrants to the
Investor as follows:
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2.1 The Company is a corporation duly organized and validly
existing under, and by virtue of, the laws of the State of Delaware, and is in
good standing under the laws of said State.
2.2 The Company has all requisite legal and corporate power and
authority to execute and deliver this Agreement, to sell and issue the Shares to
the Investor and to carry out and perform its obligations under the terms of
this Agreement.
2.3 All corporate action on the part of the Company, its directors
and shareholders necessary for the authorization, execution, delivery and
performance of this Agreement by the Company, the authorization, sale, issuance
and delivery of the Shares and the performance of all of the Company's
obligations hereunder has been or will be taken prior to the Company's execution
of this Agreement.
2.4 The Shares, when issued and transferred to the Investor in
compliance with the provisions of this Agreement, will be duly authorized,
validly issued and outstanding, fully-paid and nonassessable.
3. Representations and Warranties of the Investor. The Investor hereby
represents and warrants to the Company with respect to the Investor's purchase
and acquisition of the Shares, as follows:
3.1 The undersigned has full power and authority to enter into
this Agreement, the execution and delivery of this Agreement has been duly
authorized, if applicable, and this Agreement constitutes a valid and legally
binding obligation of the undersigned.
3.2 The undersigned and his Purchaser Representative, if any:
(a) Have been furnished with the Prospectus and any and all
documents which may have been made available upon request for a
reasonable time prior to the date hereof, and the undersigned or its
Purchaser Representative has carefully read the Prospectus and
understands and has evaluated the risks set forth under "Risk Factors"
in the Prospectus and the considerations described in subsections (ii)
and (iii) below relating to the information contained in the
Prospectus;
(b) Have been provided an opportunity for a reasonable time prior
to the date hereof to obtain additional information concerning the
Offering of the Shares, the Company and all other information to the
extent the Company possesses such information or could acquire it
without unreasonable effort or expense;
(c) Have been given the opportunity for a reasonable time prior to
the date hereof to ask questions of, and receive answers from, the
Company or its representatives concerning the terms and conditions of
the offering of the Shares and other matters pertaining to an
investment in the Shares, and have been given the opportunity for a
reasonable time prior to the date hereof to obtain such additional
information necessary to verify the accuracy of the information
contained in the Prospectus or that which was otherwise provided in
order for them to evaluate the merits and risks of a purchase of the
Shares to the extent the Company possesses such information or could
acquire it without unreasonable effort or expense;
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(d) Have not been furnished with any oral representation or oral
information in connection with the offering of the Shares which is not
contained in the Prospectus; and
(e) Have determined that the Shares are a suitable investment for
the undersigned and that at this time the undersigned could bear a
complete loss of such investment.
3.3 The undersigned is not relying on any statements or
representations made by the Company or its affiliates with respect to economic
considerations involved in an investment in the Shares. The undersigned has
relied on the advice of, or has consulted with only those persons, if any, named
as Purchaser Representative herein. Each Purchaser Representative is capable of
evaluating the merits and risks of an investment in the Shares on the terms and
conditions set forth in the Prospectus and each Purchaser Representative has
disclosed to the undersigned in writing (a copy of which is annexed to this
Agreement) the specific details of any and all past, present or future
relationships, actual or contemplated, between himself and the Company or any
affiliate or subsidiary thereof.
3.4 No representations or warranties have been made to the
undersigned by the Company, or any officer, employee, agent, affiliate or
subsidiary of the Company, other than the representations of the Company
contained herein and in the Prospectus, and in subscribing for Shares the
undersigned is not relying upon any representations other than those contained
herein or in the Prospectus.
3.5 The undersigned understands that an investment in the Shares
is a speculative investment which involves a high degree of risk of loss of its
entire investment.
3.6 The undersigned's overall commitment to investments which are
not readily marketable is not disproportionate to the undersigned's net worth,
and an investment in the Shares will not cause such overall commitment to become
excessive.
3.7 The foregoing representations, warranties and agreements shall
survive the execution of this Agreement.
4. Miscellaneous.
4.1 The undersigned agrees to indemnify and hold harmless the
Company, its officers and directors, employees and its affiliates and each other
person, if any, who controls any thereof, against any loss, liability, claim,
damage and expense whatsoever (including, but not limited to, any and all
expenses whatsoever reasonably incurred in investigating, preparing or defending
against any litigation commenced or threatened or any claim whatsoever) arising
out of or based upon any false representation or warranty or breach or failure
by the undersigned to comply with any covenant or agreement made by the
undersigned herein or in any other document furnished by the undersigned to any
of the foregoing in connection with this transaction.
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4.2 Neither this Agreement nor any provisions hereof shall be
modified, discharged or terminated except by an instrument in writing signed by
the party against whom any waiver, change, discharge or termination is sought.
4.3 Any notice, demand or other communication which any party
hereto may be required, or may elect, to give to anyone interested hereunder
shall be sufficiently given if (a) deposited, postage prepaid, in a United
States mail letter box, registered or certified mail, return receipt requested,
addressed to such address as may be given herein, or (b) delivered personally at
such address.
4.4 This Agreement may be executed through the use of separate
signature pages or in any number of counterparts, and each of such counterparts
shall, for all purposes, constitute one agreement binding on all parties,
notwithstanding that all parties are not signatories to the same counterpart.
4.5 Except as otherwise provided herein, this Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors,
administrators, successors, legal representatives and assigns. If the
undersigned is more than one person, the obligation of the undersigned shall be
joint and several and the agreements, representations, warranties and
acknowledgments herein contained shall be deemed to be made by and be binding
upon each such person and his heirs, executors, administrators and successors.
4.6 This instrument contains the entire agreement of the parties
and there are no representations, covenants or other agreements except as stated
or referred to herein.
4.7 This Agreement is not transferable or assignable by the
undersigned.
4.8 This Agreement shall be enforced, governed and construed in
all respects in accordance with the laws of the State of Utah, without giving
effect to conflicts of law principles.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates indicated below effective as of the date first-above written.
THE INVESTOR: THE COMPANY:
MACKEY PRICE XXXXXXXX & XXXXXX PARADIGM MEDICAL INDUSTRIES, INC.
By:______________________________ By:__________________________
Xxxxxxx X. Xxxxxx Xxxx X. Xxxx, President
and Chief Executive Officer
DATED: April ___, 2005. DATED: April ___, 2005.
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ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the undersigned has executed Agreement on the _____
day of ____________, 2005.
Aggregate principal amount of Shares subscribed for: $___________
$-----------
Total Purchase Price
Manner in which Title is to be held (Please Check One):
1. ______ Individual
2. ______ Joint Tenants with Right of Survivorship
3. ______ Community Property
4. ______ Tenants in Common
5. ______ Corporation/Partnership
6. ______ XXX
7. ______ Trust/Estate/Pension or Profit Sharing
Plan. Date Opened: __________
8. ______ As a Custodian for ________________ under the Uniform Gift
to Minors Act of the State of _____________
9. ______ Married with Separate Property
10. ______ Xxxxx
11. ______ Tenants by the Entirety
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IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL SUBSCRIBERS MUST COMPLETE PAGE 10.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE PAGE 11.
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EXECUTION BY NATURAL PERSONS
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Exact Name in Which Title is to be Held
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Name (Please Print) Name of Additional Purchaser
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Residence: Number & Street Address of Additional Purchaser
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City, State and Zip Code City, State and Zip Code
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Social Security Number Social Security Number
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Signature Signature
ACCEPTED this ___ day of _____________, 2005 on behalf of the Company.
BY: __________________________________
Name:
Title:
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Trust, etc.)
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Name of Entity (Please Print)
Date of Incorporation or Organization: __________________________
State of Principal Offices: _____________________________________
Federal Taxpayer Identification Number: _________________________
By: __________________________
Title: _______________________
[seal]
Attest:_______________________ ______________________________
(If entity is corporation)
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Address
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Taxpayer ID Number
Accepted this ___ day of _____________, 2005 on behalf of the Company.
By: __________________________
Name:
Title:
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ACKNOWLEDGMENT FOR INDIVIDUAL
STATE OF )
:ss
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of
______________, 2005 by ________________________.
(SEAL)
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NOTARY PUBLIC
My Commission Expires:
----------------------
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ACKNOWLEDGMENT FOR CORPORATION
STATE OF _______________ )
:ss
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ___ day of
______________, 2005 by ________________________, ____________________ of
__________________ Corporation, a _____________ corporation.
(SEAL)
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NOTARY PUBLIC
My Commission Expires:
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