FINANCING AND LISTING AGREEMENT
EXHIBIT
10.4
THIS
FINANCING AND LISTING AGREEMENT (the
“Agreement”) is made and entered into on June 9, 2005 by and among IQ
MEDICAL CORP.,
a
Colorado corporation (“IQMC”), OSMOTEX
USA, INC., a
Florida
corporation (“Osmotex”), and X.X.
XXXXXX & ASSOCIATES, INC.,
a
Florida corporation (the “Finder”).
RECITALS:
WHEREAS,
on
the
date of this Agreement, Osmotex will enter into a transaction (the “Capital
Contribution Transaction”) with IQMC pursuant to which Osmotex will contribute
certain technology license rights to the capital of IQMC in exchange for shares
of IQMC common stock (“IQMC Common Stock”);
WHEREAS,
IQMC’s
common stock is currently traded on the “pink sheets”;
WHEREAS,
the
listing of IQMC’s common stock on the OTC Bulletin Board (the “OTC Bulletin
Board”) after the consummation of the Capital Contribution Transaction is a
critical component of Osmotex’s decision to consummate the Capital Contribution
Transaction;
WHEREAS,
the
Finder has committed to locate and obtain financing for IQMC after the
consummation of the Capital Contribution Transaction and to use its best efforts
to effect the listing of the IQMC Common Stock on the OTC Bulletin
Board;
WHEREAS,
Osmotex
believes that IQMC will need to obtain significant external financing in the
short term, and accordingly the Finder’s commitment to obtain financing for IQMC
as discussed in this Agreement is a critical component of Osmotex’s decision to
consummate the Capital Contribution Transaction; and
WHEREAS,
the
parties to this Agreement wish to document their agreement regarding these
matters in this Agreement.
NOW,
THEREFORE,
in
consideration of the mutual terms, conditions and other agreements set forth
herein, and for other valuable consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, the Parties hereto, intending to be
legally bound, hereby agree as follows:
ARTICLE
1
FINANCING
COMMITMENT; SHARE ADJUSTMENTS
1.1 FINANCING
COMMITMENT; ESCROW.
The
Finder covenants and agrees that it will locate at least of total of $500,000
in
external financing (the “Financing Amount”) for IQMC and that this total
Financing Amount will be received by or made available (without restrictions
on
such availability) to IQMC on or before December 31, 2005. To secure this
financing commitment, the Finder will cause 1,000,000 shares of IQMC Common
Stock owned or controlled by them to be placed in escrow with an escrow agent
agree to by both parties (the “Escrow Agent”).
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1.2 FAILURE
TO DELIVER FINANCING.
If
the
total Financing Amount is not received by or made available (without
restrictions on such availability) to IQMC on or before December 31, 2005 on
terms and conditions that are acceptable to IQMC in its sole discretion, the
Escrow Agent shall deliver to IQMC the number of shares of IQMC Common Stock
(the “Relinquished Shares”) equal to (a) the amount by which any external
financing received by or made available (without any restrictions on such
availability) to IQMC (through the efforts of the Finder) on or before December
31, 2005 is less than $500,000, divided by (b) the Share Price (as defined
herein). “Share Price” shall mean the price of one share of IQMC Common Stock,
which shall be equal to the average price of the IQMC Common Stock using the
most recent price quotation or “asked” price (as applicable) for the IQMC Common
Stock as of the Valuation Date (as defined herein) if the IQMC Common Stock
is
quoted on any stock exchange or electronic stock trading system. If the IQMC
Common Stock is quoted on any stock exchange or electronic stock trading system
at that time, the Share Price shall be determined by dividing the value of
IQMC
(as determined by a written valuation report prepared by IQMC’s then regularly
retained accounting firm) by the total number of shares of IQMC Common Stock
outstanding as of the Valuation Date (as defined herein). “Valuation Date” shall
mean December 31, 2005 or, if a price is not available on that date, the price
on the next subsequent day for which a price is available. The Finder covenants
and agrees that (x) it will relinquish to IQMC all ownership in and all rights
of any kind, including voting and economic rights, in all Relinquished Shares,
(and (y) it will perform all actions and execute all documents required or
desired by IQMC to effect the transactions contemplated by this Article 1.
If
the Finder does not directly own shares of IQMC Common Stock, they will take
all
steps necessary to require other parties to relinquish ownership of IQMC Common
Stock so that the intent of this Article 1 is satisfied.
The Finder shall pay all expenses incurred by the accounting firm referred
to in
this Section 1.2.
1.3 Required
Share Adjustments.
The
Finder covenants and agrees that it will cause the shareholders of IQMC (other
than Osmotex) to take all steps necessary and execute all documentation required
by Osmotex to relinquish ownership of a total of 31,330,877 shares of IQMC
Common Stock on or before June 17, 2005. These steps and documentation must
be
acceptable to Osmotex in its sole discretion. The Finder acknowledges, agrees
and covenants that it is the intent of the parties to this Agreement that
Osmotex will own a total of 85.0% of the outstanding IQMC Common Stock (on
a
fully diluted basis) after the transactions contemplated in this Section 1.3
are
consummated. If the transactions contemplated in this Section 1.3 are not
consummated on or before June 17, 2005, Osmotex may, in its sole discretion
and
without penalties or costs of any kind, terminate this Agreement and the Capital
Contribution Agreement between Osmotex and IQMC upon written notice to IQMC
and
the Finder.
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ARTICLE
2
LISTING
REQUIREMENTS
2.1 Listing
of IQMC Common Stock on OTC Bulletin Board.
The
Finder covenants and agrees that it will use its best efforts to cause IQMC’s
Common Stock to be listed for trading on the OTC Bulletin Board prior to
December 31, 2005. If IQMC’s Common Stock is not listed for trading on the OTC
Bulletin Board prior to December 31, 2005 for any reason, however, the Finder
will take all steps necessary to identify a new corporate entity (acceptable
to
IQMC in its sole discretion) with which IQMC can enter into a merger, share
exchange, stock purchase or other similar transaction and which is a suitable
vehicle for allowing IQMC to achieve the listing of the IQMC Common Stock on
the
OTC Bulletin Board. The Finder will use its best efforts to locate and identify
this new corporate entity as quickly as possible, but in no event shall the
new
corporate entity be proposed to IQMC later than January 31, 2006. The Finder
will pay all of IQMC’s reasonable fees and expenses associated with this
transaction, including, without limitation, legal and accounting
fees.
ARTICLE
3
GENERAL
PROVISIONS
2.1 EXPENSES.
Except
as specifically provided in this Agreement, each party shall bear and pay all
costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder.
2.2 ENTIRE
AGREEMENT.
This
Agreement (including the documents and instruments referred to herein, all
of
the Recitals stated above, and all schedules and exhibits to this Agreement,
all
of which are hereby incorporated by reference into and made a part of this
Agreement) constitutes the entire agreement between the Parties with respect
to
the transactions contemplated hereunder and supersedes all prior arrangements
or
understandings with respect thereto, written or oral.
2.3 AMENDMENTS. This
Agreement may only be amended by a subsequent writing signed by all
parties.
2.4 WAIVERS. The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right of such party at a later
time to enforce the same or any other provision of this Agreement. No waiver
of
any condition or of the breach of any term contained in this Agreement in one
or
more instances shall be deemed to be or construed as a further or continuing
waiver of such condition or breach or a waiver of any other condition or of
the
breach of any other term of this Agreement.
2.5 ASSIGNMENT.
Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Parties. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and
be
enforceable by the Parties and their respective successors and
assigns.
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2.6 NOTICES.
All
notices, requests, consents and other communications required or permitted
under
this Agreement shall be in writing and shall be (as elected by the Person giving
such notice) hand delivered by messenger or courier service or mailed by
registered or certified mail (postage prepaid), return receipt requested,
addressed to:
|
IQMC:
|
IQ
MEDICAL CORP.
|
|
Copy
to Counsel:
|
|
|
OSMOTEX:
|
Osmotex
USA, Inc.
|
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Copy
to Counsel:
|
Gunster,
Yoakley & Xxxxxxx, P.A.
000
Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile
Number: (000) 000-0000
Attention:
Xxxxxx X. Xxxxx, Xx.,
Esq.
|
|
The
Finder:
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X.X.
Xxxxxx & Associates
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx Xxxxx, XX 00000
561/651-4146
|
or
to
such other address as any party may designate by notice complying with the
terms
of this Section. Each such notice shall be deemed delivered (a) on the date
delivered, if by messenger or courier service; and (b) either upon the date
of receipt or refusal of delivery, if mailed.
2.7 GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida, without regard to any applicable conflicts of
laws.
2.8 JURISDICTION
AND VENUE.
The
Parties acknowledge that a substantial portion of the negotiations and
anticipated performance of this Agreement occurred or shall occur in Palm Beach
County, Florida. Any civil action or legal proceeding arising out of or relating
to this Agreement shall be brought in the courts of record of the State of
Florida in Palm Beach County or the United States District Court, Southern
District of Florida. Each party consents to the jurisdiction of such Florida
court in any such civil action or legal proceeding and waives any objection
to
the laying of venue of any such civil action or legal proceeding in such Florida
court. Service of any court paper may be effected on such Party by mail, as
provided in this Agreement, or in such other manner as may be provided under
applicable laws, rules of procedure or local rules.
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2.9 COUNTERPARTS.
This
Agreement may be executed in counterparts, which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
2.10 CAPTIONS;
ARTICLES AND SECTIONS.
The
captions contained in this Agreement are for reference purposes only and are
not
part of this Agreement. Unless otherwise indicated, all references to particular
Articles or Sections shall mean and refer to the referenced Articles and
Sections of this Agreement.
2.11 INTERPRETATIONS.
Neither
this Agreement nor any uncertainty or ambiguity herein shall be construed or
resolved against any Party, whether under any rule of construction or otherwise.
No party to this Agreement shall be considered the draftsman. The Parties
acknowledge and agree that this Agreement has been reviewed, negotiated, and
accepted by all parties and their attorneys and shall be construed and
interpreted according to the ordinary meaning of the words used so as fairly
to
accomplish the purposes and intentions of all Parties hereto.
2.12 ENFORCEMENT
OF AGREEMENT.
The
Parties hereto agree that irreparable damage would occur in the event that
any
of the provisions of this Agreement were not performed in accordance with its
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches
of
this Agreement and to enforce specifically the terms and provisions hereof
in
any court of the United States or any state having jurisdiction, this being
in
addition to any other remedy to which they are entitled at law or in
equity.
2.13 ENFORCEMENT
COSTS.
If any
civil action, arbitration or other legal proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provision of this Agreement, the
successful or prevailing party or parties shall be entitled to recover from
the
non-prevailing party or parties reasonable attorneys' fees, court costs, sales
and use taxes and all expenses even if not taxable as court costs (including,
without limitation, all such fees, taxes, costs and expenses incident to
arbitration, appellate, bankruptcy and post-judgment proceedings), incurred
in
that proceeding, in addition to any other relief to which such party or parties
may be entitled. Attorneys' fees shall include, without limitation, paralegal
fees, investigative fees, administrative costs, sales and use Taxes and all
other charges billed by the attorney to the prevailing party (including any
fees
and costs associated with collecting such amounts).
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2.14 SEVERABILITY.
Any term
or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Financing and Listing Agreement as of the
date
first above written.
| IQ MEDICAL CORP. | ||
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| By: | /s/ Xxxxxxx Xxxxxx | |
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Name: Xxxxxxx Xxxxxx |
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| Its: President | ||
| OSMOTEX USA, INC. | ||
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| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Its: President | ||
| X.X. XXXXXX & ASSOCIATES, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Name: Xxxxxxx X. Xxxxxx |
||
| Its: President | ||
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