DERMISONICS, INC.
FOUR TOWER BRIDGE, 000 XXX XXXXXX XXXXX
XXXX XXXXXXXXXXXX, XXXXXXXXXXXX 00000-2977
October 18, 2004
BX Inc.
P.O. Box N1612
Nassau, Bahamas
Tel: 000 000 0000
Fax: 000 000 0000
Gentlemen:
This letter will confirm the oral agreement between Dermisonics, Inc. (the
"Company") and BX Inc. ("BX") with respect to fees payable for valuable services
rendered by BX in connection with the Company's acquisition (the "Acquisition")
of certain assets relating to certain intellectual property encompassing patents
pending filed with the US Patent and Trademark Office and other proprietary
technology and information covering a non-invasive drug delivery system more
commonly known as a transdermal patch from Encapsulation Systems, Inc. and its
wholly owned subsidiary, Echo RX, Inc. (collectively, "ESI").
In consideration of the services rendered by BX in connection with the
Acquisition, the Company and BX hereby agree as follows:
1. Company Obligations.
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a. Payment of Consideration.
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(i) Issuance of Securities. The Company shall issue to BX or
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its designees 950,000 shares ("Shares") of common stock, par value $0.01 per
share ("Common Stock") and warrants to purchase an aggregate of 475,000 shares
of Common Stock ("Underlying Shares") at an exercise price of $2.00 per share
("Warrants," which, together with the Shares and the Underlying Shares, may
sometimes herein be referred to as the "Securities") pursuant to the exemption
from the registration requirements of the Securities Act of 1933, as amended
("Securities Act"), afforded by Section 4(2) thereof. The Warrants shall be
exercisable through September 30, 2006. A copy of the form of Warrant agreement
is attached hereto as Exhibit "A" (the "Warrant Agreement").
(ii) Cash Fee. The Company will pay BX an aggregate cash fee
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of $37,500 for the services. The Company will make the cash payment required
hereby
at such time as it completes an offering whereby it derives proceeds of at least
$1,500,000.
b. Representations and Warranties. The Company hereby represents
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and warrants to BX as follows:
(i) Corporate Organization; Etc. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has full corporate power and authority to carry on
its business as it is now being conducted and to own the properties and assets
it now owns.
(ii) Authorization; Enforcement. The Company has the
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requisite corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of the Company. This
Agreement when duly executed and delivered by the Company in accordance with the
terms hereof shall constitute the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(iii) No Violation. Neither the execution and delivery of
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this Agreement nor the consummation of the transactions contemplated hereby will
violate any provision of the Articles of Incorporation or By-Laws of the Company
as currently in effect.
(iv) Valid Issuance of the Shares, the Warrants and the
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Underlying Shares. The Shares and the Warrants that are being issued hereunder
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and the shares of Common Stock issuable upon exercise of the Warrants (the
"Underlying Shares," which together with the Shares and the Warrants are herein
referred to as the "Securities"), if and when acquired in accordance with the
terms of Warrants upon the receipt by the Company of the exercise price
therefor, will be duly and validly issued and outstanding, fully paid and
non-assessable, and will not be subject to any pre-emptive or similar rights.
(v) Reservation of Underlying Shares. The Company covenants
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that it will at all times reserve and keep available out of the aggregate of its
authorized but unissued Common Stock, solely for the purpose of enabling it to
issue shares upon exercise of the Warrants.
2. BX Obligations.
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a. Representations and Warranties of BX. BX hereby represents
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and warrants to the Company as follows:
(i) Corporate Organization; Etc. BX is a corporation duly
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organized, validly existing and in good standing under the laws of jurisdiction
of incorporation and has full corporate power and authority to carry on its
business as it is now being conducted and to own the properties and assets it
now owns.
(ii) Authorization; Enforcement. BX has the requisite
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corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder. The execution and delivery of this Agreement by BX and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of BX. This Agreement when duly
executed and delivered by BX in accordance with the terms hereof shall
constitute the legal, valid and binding obligation of BX enforceable against it
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by other equitable principles of general application.
(iii) No Violation. Neither the execution and delivery of
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this Agreement nor the consummation of the transactions contemplated hereby will
violate any provision of the Articles of Incorporation or By-Laws of BX as
currently in effect.
(iv) Transfer Restrictions. The undersigned acknowledges and
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understands that the Securities constitute "restricted securities" under the
Securities Act and have not been registered under the Securities Act in reliance
upon a specific exemption therefrom. In this connection, the undersigned
understands that subject to the restrictions on transfer and other
specifications set forth below.
(A) The Consultant is acquiring the Shares for the
undersigned's own account, for investment purposes only and not with a view
toward their resale or distribution.
(B) The undersigned acknowledges and agrees that (i) the
Shares, the Warrants and the Underlying Shares may be disposed of only pursuant
to an effective registration statement under the Securities Act or pursuant to
an available exemption from or in a transaction not subject to the registration
requirements thereof and (ii) in connection with any transfer of any Securities
other than pursuant to an effective registration statement, the Company may
require the transferor thereof to provide to the Company with an opinion of
counsel selected by the transferor, the form and substance of which opinion
shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration under the Securities Act.
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(C) The undersigned agrees to the imprinting, so long as
is required by this Section 2.b, of a legend on the certificates evidencing the
Securities in substantially the following form:
[NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF
THESE SECURITIES HAVE BEEN REGISTERED] [THESE SECURITIES HAVE NOT BEEN
REGISTERED] WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED
BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
(D) The undersigned acknowledges and agrees with the
Company that the Company shall not be obligated to recognize or register any
transfer of Securities made by the undersigned in a transaction that does not
comply with the provisions of this Agreement and the undersigned hereby agrees
to indemnify and hold the Company, its officers, director, agents, affiliates
and each other person, if any, who controls the Company, within the meaning of
Section 15 of the Securities Act, and any other registered owner of the
securities of the Company, harmless from and against any and all damages,
losses, liabilities, costs and expenses (including all costs incurred in
prosecuting such rights and reasonable attorneys' fee), which it or they may
incur in investigating, preparing, or defending against any litigation commenced
or threatened, or any claim whatsoever, arising out of or based upon any
transfer of the Securities made by the undersigned that does not conform to the
requirements of this Subscription Agreement.
(E) The Company and the Consultant have concurrently
entered into a Registration Rights Agreement, a copy of which is attached hereto
as Exhibit "B."
3. Miscellaneous Provisions.
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a. Entire Agreement. This Agreement contains the entire agreement
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between the parties and supersedes and replaces any and all prior
understandings, agreements or correspondence between the parties relating to the
subject matter hereof.
b. Governing Law. This Agreement has been made in and shall be
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interpreted according to the laws of the State of Nevada without any reference
to the conflicts of laws rules thereof. The parties hereto submit to the
jurisdiction of the courts of Xxxxx County in the State of Nevada for the
purpose of any actions or proceedings that may be required to enforce any of the
provisions of this agreement.
c. Successors and Assigns. This Agreement shall inure to the
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benefit of and be binding upon the Company and its successors and assigns and
upon BX and its successors and assigns.
d. Further Assurances. From and after the execution and delivery
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of this Agreement, upon request of either party, the other shall do, execute,
acknowledge and deliver all such further acts, assurances and other instruments
and papers as may be required to carry out the transactions contemplated by this
agreement.
e. Execution. This Agreement may be executed in two or more
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counterparts, all of which when taken together 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, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
Please signify your agreement herewith by countersigning this letter
agreement in the space provided therefor below.
DERMISONICS, INC.
By:
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Xxxxx X. Xxxxxxx, Chairman
AGREED AND ACCEPTED
this ____ day of October, 2004:
BX INC.
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By:
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(Signature)
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(Print Name)
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(Title)
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