INVESTMENT AGREEMENT
EXHIBIT 10.5
INVESTMENT
AGREEMENT (this "Agreement"), dated as of April 21, 2008 by and between
InVeritas Medical Diagnostics, Inc., a Colorado corporation (the "Company"), and
Xxxxxx Xxxxxx (the "Investor").
WHEREAS, the parties desire that,
upon the terms and subject to the conditions contained herein, the Investor
shall invest up to Three Hundred Thousand dollars ($300,000) to purchase up to
6,000,000 shares (the “Shares”) of common stock of the Company (the “Common
Stock”); and
WHEREAS, such investments will
be made in reliance upon the provisions of Section 4(2) under the Securities Act
of 1933, as amended (the "1933 Act"), Rule 506 of Regulation D, and the rules
and regulations promulgated thereunder, and/or upon such other exemption from
the registration requirements of the 1933 Act as may be available with respect
to any or all of the investments in Common Stock to be made
hereunder.
NOW THEREFORE, in
consideration of the foregoing recitals, which shall be considered an integral
part of this Agreement, the covenants and agreements set forth hereafter, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company and the Investor hereby agree as
follows:
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I.
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PURCHASE
AND SALE OF SHARES.
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A. Purchase
and Sale of Shares.
Subject to the terms and conditions set forth herein, the Company shall issue
and sell to the Investor, and the Investor shall purchase from the Company
Shares at a price of $0.05 per share. The Shares are sometimes referred to
herein as the “Securities.”
B.
Delivery of Put Notices. Subject to the terms and conditions hereof, and from
time to time during the period commencing on April 21, 2008 through December 31,
2008, the Company may, in its sole discretion, deliver a notice to the Investor
stating the amount the Company intends to sell to the Investor (the “Put
Amount”) pursuant to the terms of this Agreement on a specified date (the “Put
Notice”).
C. Investor’s Obligation to Purchase
Shares. Subject to the conditions set forth in this Agreement, following
the Investor's receipt of a validly delivered Put Notice, the Investor shall be
required to purchase from the Company the number of Shares specified in the Put
Notice.
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II.
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INVESTOR'S
REPRESENTATIONS, WARRANTIES AND
COVENANTS.
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The
Investor represents and warrants to the Company, and covenants,
that:
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A. Sophisticated Investor. The
Investor has, by reason of his business and financial experience, such
knowledge, sophistication and experience in financial and business matters and
in making investment decisions of this type that it is capable of (i) evaluating
the merits and risks of an investment in the Securities and making an informed
investment decision; (ii) protecting his own interest; and (iii) bearing the
economic risk of such investment for an indefinite period of time.
B. Authorization; Enforcement.
This Agreement has been duly and validly authorized, executed and delivered on
behalf of the Investor and is a valid and binding agreement of the Investor
enforceable against the Investor in accordance with its terms, subject as to
enforceability to general principles of equity and to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors'
rights and remedies.
C.
Accredited Investor. Investor represents and warrants that he is an
“accredited investor” as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act, and that he is able to bear the economic
risk of any investment in the Shares.
D. Opportunity to Discuss. The
Investor has received all materials relating to the Company's business, finance
and operations which he has requested. The Investor has had an opportunity to
discuss the business, management and financial affairs of the Company with the
Company's management.
E. Investment Purposes. The
Investor is purchasing the Securities for his own account for investment
purposes and not with a view towards distribution and agrees to resell or
otherwise dispose of the Securities solely in accordance with the registration
provisions of the 1933 Act (or pursuant to an exemption from such registration
provisions).
III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as
set forth in the Schedules attached hereto, or as disclosed on the Company's the
SEC Documents (as defined below), the Company represents and warrants to the
Investor that:
A. Organization and
Qualification. The Company is duly organized and validly existing in good
standing under the laws of the jurisdiction of its organization. The
Company has full power and authority to own, operate and occupy its properties
and to conduct its business as presently conducted, and is registered or
qualified to do business and in good standing in each jurisdiction in which the
nature of the business conducted by it or the location of the properties owned
or leased by it requires such qualification and where the failure to be so
qualified would have a material adverse effect upon the Company’s financial
condition (a “Material Adverse Effect”), and no proceeding has been instituted
in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification.
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B.
Authorization; Enforcement; Compliance with Other Instruments.
(i) The Company has all requisite power
and authority to execute, deliver and perform its obligations under this
Agreement, and when executed and delivered by the Company will constitute legal,
valid and binding agreement of the Company enforceable against the Company in
accordance with their terms, except as rights to indemnity and contribution may
be limited by state or federal securities laws or the public policy underlying
such laws, and except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally, and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(ii) The
execution and delivery of this Agreement by the Company and the consummation by
it, of the transactions contemplated hereby have been duly and validly
authorized by the Company's Board of Directors and no further consent or
authorization is required by the Company, its Board of Directors, or its
shareholders.
C. Capitalization. The
Shares to be sold pursuant to hereunder have been duly authorized, and when
issued and paid for in accordance with the terms of the Agreements will be duly
and validly issued, fully paid and nonassessable. The outstanding shares of
capital stock of the Company have been duly and validly issued and are fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of any preemptive rights
or similar rights to subscribe for or purchase securities. No
preemptive right, co-sale right, right of first refusal, registration right, or
other similar right exists with respect to the Common Stock or the issuance and
sale thereof (other than any such rights for which the Company has obtained
waivers in respect thereof). There are no stockholders agreements, voting
agreements or other similar agreements with respect to the common stock of the
Company to which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders. The Company does
not have any so-called stockholder rights plan or “poison pill” and there are no
“shark-repellant” charter or bylaw provisions or so-called “state antitakeover”
statutes applicable, in any case, to all or any portion of the transactions
contemplated hereby, including, without limitation, issuance of the
Shares.
D. No Conflicts. The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby will not (i)
result in a violation of the Certificate of Incorporation, any Certificate of
Designations, Preferences and Rights of any outstanding series of preferred
stock of the Company or the By-laws; or (ii) conflict with, or constitute a
material default (or an event which with notice or lapse of time or both would
become a material default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, contract,
indenture mortgage, indebtedness or instrument to which the Company or any of
its Subsidiaries is a party, or to the Company's knowledge result in a violation
of any law, rule, regulation, order, judgment or decree (including United States
federal and state securities laws and regulations and the rules and regulations
of the Principal Market or principal securities exchange or trading market on
which the Common Stock is traded or listed) applicable to the Company or any of
its Subsidiaries or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected.
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E. SEC Documents and Financial
Statements. As of the date hereof, the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the 1934 Act (all of the
foregoing filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents incorporated by
reference therein being hereinafter referred to as the "SEC Documents"). The
Company has delivered to the Investor or its representatives, or they have had
access through XXXXX to, true and complete copies of the SEC Documents. As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of their respective
dates, the financial statements of the Company included in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles, by a firm that is a member of the
Public Companies Accounting Oversight Board ("PCAOB") consistently applied,
during the periods involved (except (I) as may be otherwise indicated in such
financial statements or the notes thereto, or (II) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments). No other written
information provided by or on behalf of the Company to the Investor which is not
included in the SEC Documents, including, without limitation, information
referred to in Section 4(d) of this Agreement, contains any untrue statement of
a material fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstance under which they are or
were made, not misleading. Neither the Company nor any of its Subsidiaries or
any of their officers, directors, employees or agents have provided the Investor
with any material, nonpublic information which was not publicly disclosed prior
to the date hereof and any material, nonpublic information provided to the
Investor by the Company or its Subsidiaries or any of their officers, directors,
employees or agents prior to any Closing Date shall be publicly disclosed by the
Company prior to such Closing Date.
F. Absence of Certain
Changes. Except as set forth in the SEC Documents, the Company
does not intend to change the business operations of the Company in any material
way. The Company has not taken any steps, and does not currently expect to take
any steps, to seek protection pursuant to any bankruptcy law nor does the
Company or its Subsidiaries have any knowledge or reason to believe that its
creditors intend to initiate involuntary bankruptcy proceedings.
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G. Absence of Litigation.
Except as set forth in the SEC Documents, there is no action, suit, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the
executive officers of Company or any of its Subsidiaries, threatened against or
affecting the Company, the Common Stock or any of the Company's Subsidiaries or
any of the Company's or the Company's Subsidiaries' officers or directors in
their capacities as such, in which an adverse decision could have a Material
Adverse Effect.
H. Acknowledgement Regarding
Investor’s Purchase of Shares. The Company acknowledges and agrees that
the Investor is acting solely in the capacity of arm's length purchaser with
respect to this Agreement and the transactions contemplated hereby. The Company
further represents to the Investor that the Company's decision to enter into
this Agreement has been based solely on the independent evaluation by the
Company and its representatives.
I. Intellectual Property
Rights. (i) The Company owns or possesses sufficient rights to
use all material patents, patent rights, trademarks, copyrights, licenses,
inventions, trade secrets, trade names and know-how (collectively, “Intellectual
Property”) as owned or possessed by it, or that are necessary for the conduct of
its business as now conducted or as proposed to be conducted, except where the
failure to currently own or possess would not have a Material Adverse Effect,
(ii) the Company has not received any notice of, or has any knowledge of,
any asserted infringement by the Company of, any rights of a third party with
respect to any Intellectual Property that, individually or in the aggregate,
would have a Material Adverse Effect, and (iii) the Company has not
received any notice of, or has no knowledge of, infringement by a third party
with respect to any Intellectual Property rights of the Company that,
individually or in the aggregate, would have a Material Adverse
Effect.
J. No General Solicitation.
Neither the Company, nor any of its affiliates, nor any person acting on
its behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with the offer or
sale of the Common Stock offered hereby.
K. No Brokers, Finders or Financial
Advisory Fees or Commissions. No brokers, finders or financial
advisory fees or commissions will be payable by the Company with respect to the
transactions contemplated by this Agreement, other than disclosed in this
Agreement.
L. Use of Proceeds. The
Company will use the proceeds from the sale of the Shares for general
corporate and working capital purposes or for other purposes that the Board of
Directors deem to be in the best interest of the Company.
IV. TERMINATION. This
Agreement shall terminate upon any of the following events:
(a) when
the Investor has purchased an aggregate of Three Hundred Thousand Dollars
($300,000) in Shares of the Company pursuant to this Agreement; or,
(b) on
the date which is thirty-six (36) months after the date hereof.
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V.
MISCELLANEOUS
A. Notice. Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (a) upon receipt, when delivered personally, (b) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party),
or (c) one (1) business day after deposit with an overnight courier service, in
each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the
Company:
InVeritas Medical Diagnostics,
Inc.
Xxx Xxxxx
Xxxxx
Xxxxxxxxx
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 0X0 0XX
Attn: ________________
Telephone: (000
00-0000-000-000
Facsimile_________
With a
copy to (which shall not constitute notice):
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxx
X. Xxxxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If to the
Investor, to his address and facsimile number set forth at the end of this
Agreement, or to such other address and/or facsimile number and/or to the
attention of such other person as specified by written notice given to the
Company five (5) days prior to the effectiveness of such
change. Written confirmation of receipt (a) given by the recipient of
such notice, consent, waiver or other communication, (b) mechanically or
electronically generated by the sender’s facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission, or (c) provided by an overnight courier service shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from an
overnight courier service in accordance with clause (a), (b) or (c) above,
respectively.
B. Entire Agreement;
Amendment. This Agreement supersedes all other prior oral or
written agreements between the Investor, the Company, their affiliates and
persons acting on their behalf with respect to the matters discussed herein, and
this Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the
Company nor the Investor makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this
Agreement may be amended or waived other than by an instrument in writing signed
by both parties hereto.
C. Severability. If
any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
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D. Governing Law; Jurisdiction; Waiver
of Jury Trial. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
the internal laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts sitting in New York for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. Each party hereby irrevocably waives any right it may have,
and agrees not to request, a jury trial for the adjudication of any dispute
hereunder or in connection with or arising out of this Agreement or any
transaction contemplated hereby.
D. Headings. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
E. Successors And
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and
assigns. Neither party may assign his/its rights hereunder without
the consent of the other party, which consent shall not be unreasonably
withheld.
F. No Third Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person.
G. Survival. The
representations and warranties of the Company and the Investor contained herein
shall survive closing for a period of two years.
H. Further
Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
I. No Strict
Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any
party.
J. Legal
Representation. The Investor acknowledges that: (a) he has
read this Agreement and the exhibits hereto; (b) he understands that the Company
has been represented in the preparation, negotiation, and execution of this
Agreement by Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, counsel to the Company; and
(c) he understands the terms and consequences of this Agreement and is fully
aware of its legal and binding effect.
K.
Counterparts. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
[Signature
follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first written above.
| IN VERITAS MEDICAL DIAGNOSTICS, INC. | |||
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By:
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/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Chief Financial Officer | |||
| /s/ Xxxxxx Xxxxxx | |||
| XXXXXX XXXXXX | |||
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