Exhibit 10.11
BioPhan Technologies Inc.
Financial Accommodations Agreement
Bellador (Labuan) Ltd Date: July 1, 2002
Gentlemen:
The undersigned as a duly authorized officer's or agent's of Bellador
(Labuan) Ltd., a company incorporated in Malaysia hereby states and agrees
on behalf of BELLADOR (LABUAN) LTD., as follows:
BELLADOR (LABUAN) LTD., understands that BioPhan Technologies Inc., a
corporation organized under the laws of the State of Nevada, U.S.A. (the
"Company"), is making available, pursuant to the exemption from
registration provided under Regulation S promulgated by the United States
Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "1933 Act"), up to 1,000,000 restricted shares of its
$.005 par value Common Stock (the "Restricted Shares"). At the Company's
election, it may increase the number of Restricted Shares to 3,000,000.
In acknowledgement of the foregoing and upon the representations appearing
hereinafter, BELLADOR (LABUAN) LTD., hereby agrees to offer the Restricted
Shares (the "Shares") to their clients (the "Clients"), at such times and
in such numbers of the Shares as shall be determined by BELLADOR (LABUAN)
LTD., and with reference to clauses 4 (c) and 4 (d) herein, at a price per
Share equal to the reported closing trading price; (i.e. Bid Price) of the
Company's shares on the most recent day, prior to the date of the sale of
Shares, upon which the Company's shares traded on the OTC Bulletin Board.
BELLADOR (LABUAN) LTD., Each Client purchasing Shares shall deliver a
subscription agreement along with the purchase price for the Shares,
together with a transaction fee of 0.75% or a minimum of $75.00 in US
dollars to the Company. The Company agrees to issue to BELLADOR (LABUAN)
LTD., restricted common shares valued on the same basis in the equivalent
amount of 10 (ten) percent of the value of any Shares so placed by BELLADOR
(LABUAN) LTD; the Company will remit to BELLADOR (LABUAN) LTD. additional
compensation for the services provided a cash amount equal to 35% of the
amount BELLADOR (LABUAN) LTD's clients paid for the shares, plus the
relevant transaction fee less any related bank clearance fees. Funds due to
BELLADOR (LABUAN) LTD., will be remitted by the Company to BELLADOR
(LABUAN) LTD. or its nominees, on a weekly basis. Upon acceptance by the
Company, BELLADOR (LABUAN) LTD will hereby confirm its intent to
encourage Clients to become a shareholder of the Company. In order to
induce the Company to accept its offer, BELLADOR (LABUAN) LTD., advises as
follows:
1 Receipt of Information ; BELLADOR (LABUAN) LTD., acknowledges that it
has received and has carefully reviewed the Company's annual report on Form
10-K for the fiscal year ended February 28, 2002 and the report on Form 10-
Q for the quarters ended May 31, August 31 and November 30, 2001 (the
"Reports").
2 Availability of Information; BELLADOR (LABUAN) LTD., hereby
acknowledges that the Company has made available to it the opportunity to
ask questions of, and receive answers from, the Chief Executive Officer of
the Company, and any other person or entity acting on behalf of the Company
as requested by BELLADOR (LABUAN) LTD., concerning the terms and conditions
of the offering and the materials and information contained in the Reports,
and to obtain any additional information requested by BELLADOR (LABUAN)
LTD., to the extent the Company possesses such information or can acquire
it without unreasonable effort or expense, as it may deem necessary to
verify the accuracy of the information provided by the Company or any such
person or entity.
3 Representations, Warranties and Covenants; BELLADOR (LABUAN) LTD.,
represents and warrants to the Company (and understands and acknowledges
that the Company is relying on the accuracy and completeness of such
representations and warranties in connection with the availability of an
exemption for the offer and sale of the Shares from the registration
requirements of the U.S. securities laws) that:
a) BELLADOR (LABUAN) LTD., understands and agrees that the Shares
have not been registered under the 1933 Act, or the securities
laws of any other jurisdiction and will be deemed "restricted
securities" as defined in Rule 144 under 1933 Act.
b) BELLADOR (LABUAN) LTD., understands and agrees that, if this
Finance Agreement is accepted and the Shares are sold to BELLADOR
(LABUAN) LTD., Clients, such sales will be pursuant to the
exemption from the 1933 Act's registration requirement provided in
Regulation S, and that BELLADOR (LABUAN) LTD., is prohibited from
selling or otherwise disposing of the Shares except in accordance
with Regulation S which imposes, among other things, the resale
restrictions specified in Rule 144 promulgated under the 1933 Act,
or pursuant to another available exemption from registration, and
the shares will continue to be deemed restricted securities
notwithstanding that they were acquired in a transaction pursuant
to Regulation S.
c) BELLADOR (LABUAN) LTD., understands and agrees that hedging
transactions involving the Shares may not be conducted unless in
compliance with the 1933 Act.
d) BELLADOR (LABUAN) LTD., understands and agrees that the Company
may lodge stop transfer instructions with its transfer agent in
order to restrict the transfer of the Shares in accordance with
the foregoing representations, and that the certificates
representing the Shares will contain a legend restricting transfer
as prescribed by Section 903(b)(3) of Regulation S.
e) BELLADOR (LABUAN) LTD., understands and agrees that Clients are
not "U.S. Persons" as that term is defined in Regulation S and
that no offer or sale shall be made to any US resident or citizen
or Canadian resident or citizen.
f) BELLADOR (LABUAN) LTD., understands and agrees that Clients will
always reside and be located outside the U.S. at the time of both
the offer and sale of the Shares and that there will be no
directed selling efforts in the US or Canada.
g) BELLADOR (LABUAN) LTD., understands and agrees that Clients are
not purchasing the Shares as a part of any plan or scheme to evade
the registration requirements of the 1933 Act. BELLADOR (LABUAN)
LTD. and that Clients are buying for investment and not for resale
in the United States, except in accordance with Rule 144 or any
other exemption from registration.
h) BELLADOR (LABUAN) LTD., understands and agrees that Clients have
an interest only in part with respect to this Finance Agreement
Clients are not acquiring the Shares, or any part of them, for the
account or benefit of a U.S. person or US or Canadian resident or
citizen, and that No buyer at the time of the order or sale shall
be in the US and BELLADOR (LABUAN) LTD., must in good faith so
believe.
i) In the event BELLADOR (LABUAN) LTD., distributes any portion of
the Shares subscribed for hereby to any distributor, dealer or
other person receiving any selling concession, fee or other
remuneration, prior to the expiration of a one-year distribution
compliance period, BELLADOR (LABUAN) LTD., agrees that it will
send a written confirmation or other notice to such purchaser
stating that such purchaser is subject to the same restrictions on
offers and sales that apply to a distribution under Regulation S
and that the Shares acquired are subject to Rule 144 resale
restrictions.
j) BELLADOR (LABUAN) LTD., understands and agrees that it shall have
sole responsibility for determining whether securities laws
registration or other procedures of any non-United States
jurisdiction or jurisdictions will be applicable to the
transactions contemplated herein, and shall take all steps
necessary to ensure compliance with any such applicable securities
laws and regulations and BELLADOR (LABUAN) LTD., shall have sole
responsibility for making any disclosures required by any non
United States jurisdiction.
k) BELLADOR (LABUAN) LTD., agrees that it will not make any
representation to its Clients about BioPhan Technologies Inc.,
without authorization from BioPhan Technologies Inc., BELLADOR
(LABUAN) LTD., agrees that it will indemnify and hold BioPhan
Technologies Inc., harmless in the event of any breach or
violation of any securities laws in any jurisdiction and all
activities undertaken pursuant to this agreement are at the sole
risk of BELLADOR (LABUAN) LTD.
l) Neither BELLADOR (LABUAN) LTD., nor any affiliates of BELLADOR
(LABUAN) LTD., nor any person acting on its behalf, has engaged in
any (i) general solicitation or general advertising within the
meaning of Rule 502(c) under the 1933 Act or (ii) directed selling
efforts within the meaning of Rule 903 under Regulation S and
BELLADOR (LABUAN) LTD. has complied and will comply with the
offering restrictions of such Rule 903.
4 Offering Procedure; BELLADOR (LABUAN) LTD., understands agrees that
this Financial Agreement is subject to each of the following terms and
conditions:
a) The Company may reject this Financial Agreement for any reason,
and this Financial Accommodations Agreement shall become binding
upon the Company only when accepted, in writing, by the Company.
b) If the Financial Agreement is rejected, all funds submitted hereby
will be returned to BELLADOR (LABUAN) LTD., Clients without
interest thereon or deduction there from.
c) This Financial Agreement will have an initial term of three months
(the "Initial Term") but will automatically renew for successive
one month periods unless terminated pursuant to paragraph 4(e).
d) Each order shall be accompanied by a subscription agreement in
form and substance satisfactory to BioPhan Technologies Inc.,, and
its acceptance shall be at the sole discretion of BioPhan
Technologies Inc.
e) After the Initial Term, this Financial Agreement may be terminated
by either party with thirty (30) days notice to the other party.
5 Payment; As payment for the subscription made hereby, BELLADOR (LABUAN)
LTD., Clients will tender to the Company, or its escrow agent as designate
by the Company, payment in U.S. Dollars, made to the order of BioPhan
Technologies Inc., or in such other form as may be acceptable to the
Company. Payment shall not be deemed completed until the money is
transferred to BioPhan's designated bank account.
6 Rule 144 Restriction Statement; Upon acceptance by BioPhan Technologies
Inc., of a fully completed subscription agreement, BioPhan Technologies
Inc., will undertake to issue a "Statement" "In Letter Format attached to
the Share Certificate" that will advise BELLADOR (LABUAN) LTD., Clients
that the shares purchased will become freely tradable after the elapse of
the fifteen month hold restriction period in compliance with Rule 144.
7 Share Certificates; BioPhan Technologies Inc., will provide share
certificates issued through a registered Stock Transfer Agent to BELLADOR
(LABUAN) LTD., Clients and to BELLADOR (LABUAN) LTD., within two weeks of
funds being received by the Company.
Very truly yours,
BioPhan Technologies Inc.
/s/Xxxxxxx X. Xxxxxx
___________________________
Xxxxxxx X. Xxxxxx
President and CEO
Accepted and Agreed to:
Bellador (Labuan) Ltd.
/s/Xxxxx Xxxxxx /s/Xxxxx Xxxxx
___________________________ ___________________________
Xxxxx Xxxxxx Xxxxx Xxxxx
Director Director
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