AGREEMENT
THIS AGREEMENT made the 22nd day of February, 2002 by and between TAMPA BAY
FINANCIAL, INC., a corporation organized under the laws of the State of Florida
("TBF"), Xxxx Xxxxx, a citizen of the State of Florida ("Xxxxx"), Xxxxxx Xxxx, a
citizen of the State of Florida ("Veal" and, collectively with Xxxxx,
"Shareholders"), and DNAPrint genomics, Inc., a corporation organized under the
laws of the State of Utah ("DNAP") and DNAPrint genomics, Inc., a corporation
organized under the laws of the State of Florida.
RECITALS:
A. TBF and DNAP are parties to that certain Funding and Stock Subscription
Agreement dated June 8, 2001 (the "Funding Agreement") providing for TBF to
provide funding to DNAP and its wholly-owned subsidiary, DNAPrint genomics,
Inc., a Florida corporation ("Subsidiary"), totaling $2,000,000 in exchange
for issuance to it of forty million shares of the restricted common stock
of DNAP.
B. DNAP and Xxxx Xxxxxxx ("Xxxxxxx") have entered into a Consulting Agreement
dated November 2, 2001, pursuant to which Xxxxxxx was to be compensated by
the award of stock options to purchase up to 20,000,000 shares of DNAP
common stock at a price calculated in accordance with a formula set forth
in a Non-Qualified Stock Option Agreement (collectively the "Xxxxxxx
Agreement").
C. Shareholders presently serve as officers and directors of DNAP and of TBF.
D. The parties recognize that it would be in the best interest of DNAP and TBF
to substantially and amicably sever the existing relationship between them.
E. TBF has prepared and delivered to DNAP a reconciliation as of February 14,
2002 of all shares of DNAP stock which it has caused to be issued, a copy
of which is attached hereto as Exhibit A (the "TBF Reconciliation"),
pursuant to the Funding Agreement, the Xxxxxxx Agreement and a private
placement of DNAP restricted common stock. Pursuant to the Funding
Agreement, the TBF Reconciliation reflects the issuance of 656,300 shares
in excess of the number of shares for which no payment was received by the
Company (the "Unfunded Shares"), representing a deficiency in $32,815 of
funds received by the Company (the "Funding Deficiency").
F. DNAP has entered into a Funding and Subscription Agreement between and
among DNAP and Xxxxxx Xxxxxxxx, Xxxx Xxxxxxxx, Xxxx Xxxxx, III and Xxxxxxx
Xxxxx Xxxx (the "Replacement Investors"), pursuant to which the Replacement
Investors have agreed to purchase through a private placement, during the
twelve-month period following execution of such agreements, not less than
57,140,000 shares of the DNAP's restricted common stock at a price of
$0.035 per share and TBF, Xxxxx and Veal have each been furnished copies of
such agreement.
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AGREEMENT
NOW THEREFORE, for and in consideration of the mutual covenants of the
parties hereto and for other good and valuable consideration paid by each party
hereto to the other, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
RECITALS
The foregoing recitals are true and correct and are hereby incorporated by
references.
ARTICLE 2
FUNDING
2.1 Funding Deficiency. TBF shall pay to DNAP by wire transfer the amount
of $32,815 in full satisfaction of the Funding Deficiency within six months.
2.2 Funding Agreement. Upon or before the execution of this Agreement:
(a) TBF will deliver to DNAP a non-interest-bearing, non-recourse
promissory note having a term of three (3) years in the amount of $1,046,234 in
the form attached hereto as Exhibit B (the "Promissory Note") representing the
balance due DNAP by TBF under the Funding Agreement.
(b) DNAP has directed Standard Register and Transfer Company, as transfer
agent for DNAP (the "Transfer Agent"), to issue 19,549,680 shares of DNAP
restricted common stock (the "Escrowed Shares") and to place those shares in an
escrow account subject to release at the direction of DNAP. Upon DNAP's receipt
of payment from TBF against the Promissory Note for all or a portion of the
Escrowed Shares, DNAP shall direct the Transfer Agent to issue shares to TBF on
a quarterly basis at a price of $0.05 per share.
(c) All payments to DNAP for the Escrowed Shares shall be treated as
payment of principal under the Promissory Note. At the maturity date of the
Promissory Note, the Promissory Note shall be cancelled and the escrow account
holding the Escrowed Shares shall be closed and the remaining Escrowed Shares
shall be returned to DNAP as treasury shares.
(d) The shares currently held by the Transfer Agent in escrow on account of
anticipated funding under the Xxxxxxx Agreement, which funding has not been
received, shall be returned to DNAP as treasury shares.
2.3 Alternative Funding. In the event DNAP is unable to secure at least One
Million Dollars ($1,000,000) in funding from the Replacement Investors, TBF will
provide upon thirty (30) days' written request by DNAP up to an additional $1
million of funding in exchange for restricted shares in DNAP priced at the lower
of $0.05 per share or half of the market price of one share of DNAP during the
fifteen trading days immediately preceding the date of DNAP's notice. TBF may,
at its option, provide the requested amount in up to four installments with the
first payment made within thirty (30) days following the date of DNAP's notice
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and each subsequent installment to be paid no later than thirty (30) days
following the date of the preceding installment.
ARTICLE 3
CORPORATE GOVERNANCE
3.1 Resignations. Simultaneously with the execution of this Agreement,
Xxxxx and Veal have delivered to Xxxx Xxxxxxxx, as Director of DNAP, their
respective resignations from all positions that they hold as officers and
directors of DNAP and Subsidiary.
3.2 Replacement Directors. Xxxx Xxxxxxxx, Xxxxx and Xxxx, as directors of
DNAP and Subsidiary, immediately prior to the resignation of Xxxxx and Veal,
shall designate Xxxxxx Xxxxx and Xxxx Xxxxxxx to serve as directors of DNAP and
Subsidiary until the next annual meetings of Shareholders. TBF agrees to vote
its shares at that meeting for the slate of directors designated by Frudakis and
further agrees to take no action intended to prevent or interfere with the
election of those directors. It is understood and agreed that the newly
constituted boards of directors of DNAP and Subsidiary immediately upon the
designation of new directors shall convene meetings of each board and shall at
those meetings elect Xxxx Xxxxxxxx to serve as Chairman and Chief Executive
Officer of DNAP and Subsidiary.
ARTICLE 4
INDEMNIFICATION
4.1 TBF, Xxxxx and Veal. DNAP agrees to indemnify and hold harmless TBF,
Xxxxx and Xxxx from and against any shareholder lawsuits, claims or actions
alleging loss suffered by shareholders arising from the failure of the investor
parties to the Replacement Funding Agreements to collectively fulfill their
funding obligations to DNAP. DNAP further agrees to indemnify Xxxxx and Veal
from and against shareholder claims arising from acts or omissions (other than
illegal acts) occurring during periods they served as directors of DNAP to the
extent permitted by Utah law. It is acknowledged and, based upon the opinion of
counsel for DNAP, it is understood that Utah law prohibits a corporation from
providing such indemnification in derivative actions on behalf of the
corporation if the director has been held personally liable to the corporation
or in a proceeding alleging that the director derived an improper personal
benefit, if the director is held personally liable in a court proceeding for
such an action.
4.2 DNAP. TBF, Xxxxx and Xxxx jointly and severally agree to indemnify and
hold harmless DNAP and its officers and directors from and against any lawsuits,
claims or actions arising from any acts, errors or omissions by TBF, Xxxxx or
Veal (other than those which are subject to DNAP's indemnification as set forth
in Article 4.1, above) occurring prior to the date hereof.
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ARTICLE 5
OTHER MATTERS
5.1 Non-disparagement. DNAP and TBF on behalf of themselves and their
respective officers and directors agree to refrain from making any statements
disparaging to the character or integrity of the other party or to the officer
or directors of the other party. DNAP shall furnish to TBF a letter of
recommendation substantially in the form attached as Exhibit A, hereto.
5.2 Representations and Warranties. TBF, Veal and Xxxxx represent and
warrant that Exhibit A hereto completely and accurately states the number of
shares of DNAP stock issued and all funds receipted by DNAP pursuant to the
Funding Agreement, the Xxxxxxx Agreement and the 2001/02 Private Placement.
5.3 Continued Cooperation. Veal shall continue to assist DNAP in the
completion of audited financial statements for the period ended December 31,
2001 and in the preparation of filings required by the U.S. Securities and
Exchange Commission for that period. TBF, Xxxxx and Xxxx shall, to the extent
shareholder approval is required, abstain from voting their shares with respect
to approval of or opposition to the Funding and Subscription Agreement described
in Recital F, above.
ARTICLE 6
MISCELLANEOUS
6.1 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:
(a) If to TBF, to:
Tampa Bay Financial, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
(b) If to DNAP, to:
DNAPrint genomics, Inc. (Utah)
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxx
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(c) If to Subsidiary, to:
DNAPrint genomics, Inc. (Florida)
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxx
(d) If to Xxxxx, to:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
(e) If to Veal, to:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
or to such other address as any party may have furnished in writing the other
parties in the manner provided above.
6.2 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.
6.3 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.
6.4 Entire Agreement: Modifications. This Agreement constitutes the final,
exclusive, and complete understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior agreements, understandings and
discussions with respect thereto.
6.5 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.
6.6 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.
6.7 Third Party Beneficiaries. No individual, firm, corporation,
partnership, or other entity shall be a third-party beneficiary of this
Agreement.
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6.8 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.
6.9 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.
IN WITNESS WHEREOF, TBF, Shareholders, DNAP and Subsidiary have caused this
Agreement to be signed as of the date first written above.
TAMPA BAY FINANCIAL, INC.
By:/s/ Xxxx Xxxxx
Xxxx Xxxxx
As its President
SHAREHOLDERS
/s/ Xxxx Xxxxx
Xxxx Xxxxx
/s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
DNAPRINT GENOMICS, INC. (Utah)
By:/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
As its President
DNAPRINT GENOMICS, INC. (Florida)
By:/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
As its President
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