Exhibit 10.27 Agreement with Advanced Optics Electronics
STOCK SALE AGREEMENT
BY AND BETWEEN
GenoMed, Inc.
("SELLER")
AND
Advanced Optics Electronics, Inc.
("PURCHASER")
DATED AS OF DECEMBER 17, 2003
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STOCK SALE AGREEMENT
--------------------
This STOCK SALE AGREEMENT (this "Agreement"), dated as of December 17,
2003, is by and between GenoMed, Inc., a Florida corporation (the "Seller"), and
Advanced Optics Electronics, Inc., a Nevada corporation ("Purchaser").
RECITALS
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the number of shares of Seller's Common (12-month
restricted from sale) Stock, with characteristics as set forth in Article 1.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements, and upon the terms and subject to the conditions,
hereinafter set forth, the parties hereby agree as follows:
DEFINITIONS
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under direct or indirect control with
such other Person.
"Applicable Law" means, with respect to any Person, any domestic or
foreign, federal, state or local statute, law, ordinance, rule, administrative
interpretation, regulation, order, writ, injunction, judgment, decree or other
requirement of any Governmental Authority applicable to such Person or any of
its Affiliates or any of their respective properties, assets, officers,
directors, employees, consultants or agents (in connection with such officer's,
director's, employee's, consultant's or agent's activities on behalf of such
Person or any of its Affiliates).
"Governmental Authority" means any foreign, domestic, federal, territorial,
state or local governmental authority, quasi-governmental authority,
instrumentality, court, government or self-regulatory organization, commission,
tribunal or organization or any regulatory, administrative or other agency, or
any political or other subdivision, department or branch of any of the
foregoing.
"Material Adverse Effect" means a change in, or effect on, Seller that (A)
results in a material adverse effect on, or a material adverse change in, the
assets, operations, financial condition or results of operations of Seller
(excluding (i) adverse changes of an industry-wide impact or (ii) adverse
changes attributable to the execution of this Agreement and the publicity
attendant thereto) or (B) materially impairs or prohibits the ability of Seller
and Purchaser to consummate the transactions contemplated hereby.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust, estate or other entity or organization, including a
Governmental Authority.
ARTICLE I
TERMS OF PURCHASE AND SALE
1.01. SALE OF THE SHARES. At the Closing (as defined in Section 1.05
hereof, and to be no later than January 9, 2004), subject to the terms and
conditions set forth herein, Seller shall sell to Purchaser, and Purchaser shall
purchase from Seller, the number of shares of Seller's Common (12-month
restricted from sale) Stock with the characteristics as set forth below (the
"Securities").
1.02. PURCHASE PRICE AND QUANTITY. Subject to the terms and conditions of
this Agreement, in full payment of the purchase price for the Securities,
Purchaser shall pay to Seller in cash the purchase price of $900,000 (the
"Purchase Price") for the Securities, according to the schedule included below.
Seller shall deliver to Purchaser the quantity of shares of Seller's Securities
as follows:
(a) The quantity of Seller's Securities to be transferred to the Purchaser
shall be calculated as Q = ($900,000/.75CP), where:
i) Q is the total quantity of Securities to be transferred by Seller
to Purchaser (the "Quantity)
ii) $900,000 is the Purchase Price
iii)CP is Closing Price, namely the average bidprice for the Seller's
stock during the month prior to the Closing, and
iv) .75 is a multiplier to the Closing Price, effecting a twenty five
percent (25%) discount because the shares are restricted from
sale for a period of 12 months.
(b) At Closing the Purchaser shall remit $300,000 to the Seller and the
Seller shall transfer one third (33.33%) of the Quantity of Common (12-month
restricted from sale) Stock to Purchaser, in the manner specified in this
Agreement.
(c) Thirty (30) days following the date of Closing, the Purchaser shall
remit an additional $300,000 to the Seller and the Seller shall transfer one
third (33.33%) of the Quantity of shares of Common (12-month restricted from
sale) Stock to Purchaser, in the manner specified in this agreement. (d) Sixty
(60) days following the date of Closing, the Purchaser shall remit a final
$300,000 to the Seller and the Seller shall transfer one third (33.33%) of the
Quantity of shares of Common (12-month restricted from sale) Stock to Purchaser,
in the manner specified in this Agreement.
1.04 VOTING AND ECONOMIC RIGHTS. Tthe Purchaser shall retain all voting and
economic rights intrinsic to the Common (12-month restricted from sale) stock.
1.05. CLOSING.
(a) The closing of the transaction contemplated hereby (the "Closing")
shall take place on the date on which the last of the conditions to Closing set
forth in Sections 5.01, 5.02 and 5.03 have been satisfied or waived by the party
or parties entitled to waive the same or such other date as to which Seller and
Purchaser may agree (the "Closing Date") and upon which date as the Purchaser
shall send via wire transfer to the Seller's bank account, the initial payment
for the Securities as defined in Schedule I.
(b) At the Closing, subject to the terms and conditions set forth herein,
Seller shall deliver or cause to be delivered to Purchaser certificates
representing the Securities, duly endorsed in blank for transfer. The Securities
shall bear legends giving notice of restrictions on transfer as set forth in
Section 7.10 hereof.
(c) At the Closing, subject to the terms and conditions set forth herein,
Purchaser shall pay and deliver to Seller the initial payment of the Purchase
Price allocable to the Securities being purchased by Purchaser. The Purchase
Price shall be payable to Seller at the Closing by wire transfer in immediately
available funds to a bank account designated by Seller in writing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
2.01. ORGANIZATION; GOOD STANDING. Seller is duly organized, validly
existing and in good standing under the laws of the state of its incorporation
or organization and has all requisite power and authority under such laws to
carry on its business as now conducted.
2.02. CORPORATE POWER AND AUTHORITY; EFFECT OF AGREEMENT. The execution,
delivery and performance by Seller of this Agreement, and the consummation by
Seller of the transaction contemplated herein, including the sale of the
Securities, have been duly authorized by all necessary action on the part of
Seller. This Agreement has been duly and validly executed and delivered by
Seller and constitutes a valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights generally and is
subject to general principles of equity.
2.03. CAPITALIZATION. As of the Closing, (i) the authorized capital stock
of the Seller shall consist of 1 billion Common Shares having the rights,
preferences and privileges, referred to herein and as specified in the Seller's
company articles of incorporation (ii) other than the shares offered to the
Purchaser, and the options and warrants to purchase Seller's Common Stock
issuable pursuant to the Seller's most recent SEC 10-Q filing, there shall be no
outstanding securities, options, warrants, calls, stock appreciation rights,
profit sharing plans, phantom stock awards, rights, commitments, agreements,
arrangements or understandings of any kind, to which Seller is a party or by
which it is bound, obligating Seller to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock or other voting
securities of Seller, or obligating Seller to issue, grant, extend or enter into
any such security, option, warrant, call, right, commitment, agreement,
arrangement or undertaking or any agreements or instruments having a similar
economic effect.
The outstanding options and warrants to purchase Seller's Common stock, as
detailed in the Seller's September 30, 2003 SEC filings, are recapitulated as
follows:
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Stock options 06/30/03
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BS Value
Date Options and Pro forma
Issue Vesting Valuation Total Vested FMV Exer Intrinsic BS Value Term
Price Value
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X Xxxxxxxxx x 3/15/2002 5/6/2002 9/30/2003 12,500,000 12,500,000 0.0400 0.0080 400,000 25,000 10 years
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X Xxxxxxxxx x 3/15/2002 11/6/2002 9/30/2003 25,000,000 25,000,000 0.0400 0.0080 800,000 50,000 10 years
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J White x 10/25/2002 10/25/2002 10/25/2002 6,000,000 6,000,000 0.0300 0.0060 144,000 36,000 10 years
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Xxxxxx x 2/22/2002 3/1/02 to 2/22/2002 1,000,000 1,000,000 0.0300 0.0060 20,000 - 3 years
2/28/03
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Xxxxx Xxxxxxxx x 11/2/2002 11/2/2002 11/2/2002 100,000 100,000 0.0300 0.0300 1,000 - 2 years
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Xxxx Xxxxxxxx x 10/29/2002 10/29/2002 10/29/2002 78,100 78,100 0.0300 0.0300 1,000 - 2 years
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Xxxxx Xxxxx x 11/2/2002 11/2/2002 11/2/2002 100,000 100,000 0.0300 0.0300 1,000 - 2 years
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Xxxxxx Xxxxxxx x 12/13/2002 12/13/2002 12/13/2002 100,000 100,000 0.0100 0.0100 - - 2 years
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Xxxxx Xxxxxx x 12/13/2002 12/13/2002 12/13/2002 100,000 100,000 0.0100 0.0100 - - 2 years
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Xxxxxxx x 2/22/2002 3/1/02 to 2/22/2002 1,000,000 1,000,000 0.0300 0.0060 20,000 - 3 years
2/28/03
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Xxxxxxx x 8/15/2002 9/15/02 to 8/15/2002 100,000 100,000 0.0100 0.0100 - - 2 years
8/15/03
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Danilov x 12/11/2002 1/11/03 to 12/11/2002 100,000 75,000 0.0100 0.0100 - - 2 years
12/11/03
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Boner x 12/26/2002 1/26/03 to 12/26/2002 100,000 80,000 0.0100 0.0100 - - 2 years
12/26/03
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X Xxxxxxxxx 2/22/2002 3/1/02 to 2/22/2002 1,000,000 1,000,000 0.0300 0.0060 20,000 - 3 years
2/28/03
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Balance 12/31/02 47,278,100 47,233,100 1,407,000 111,000
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Recorded at
12/31/02 (495,000) (111,000)
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K Xxxxx 12/13/2002 12/13/2002 12/13/2002 769,231 769,231 0.0100 0.0500
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K Xxxxx 3/21/2003 3/21/2003 3/31/2003 187,500 187,500 0.0100 0.0500
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Balance 09/30/03 48,234,831 48,189,831 912,000 -
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Scientific Advisory Board (SAB): The Seller has an ongoing agreement to issue
100,000 shares, or options to purchase 100,000 shares (exercisable within 2
years), per year for a total of 5 years per member of the SAB. The date of
issuance is the one-year anniversary of the SAB member's joining the SAB, and
subsequent anniversaries for a total of 5 years. Curently the company has five
members of the SAB: Xxxxx X. Xxxxxxx (joined SAB on August 15, 2002), Xxxxxxxx
Xxxxx (joined SAB on December 26, 2002), Xxxxx Xxxxxxxx (joined SAB on November
0, 0000), Xxxxxx Xxxxxxx (joined SAB on December 11, 2002), and Xxxxx Xxxxx
(joined SAB on Janurary 16, 2002). A sixth member of the SAB, Xxxx Xxxxxxxx, has
options to purchase 78,100 shares which are exercisable until October 29, 2004,
which represents two years after the date of his resignation from the SAB. The
company reserves the right to name additional members to the SAB.
During March 2002 the Company granted Xxxxx Xxxxxxxxx options to purchase
37,500,000 shares of common stock at an exercise price of 20% of the fair market
value of the common stock on the exercise date. The options may be exercised
after May 6, 2002 for a period of 10 years as to 12,500,000 options and after
November 6, 2002 for a period of 10 years as to 25,000,000 options. The change
in the discount from the fair market value of the common stock related to the
options will be charged to operations as general and administrative expenses
during the period from the grant date to the exercise date. During the nine
months ended September 30, 2003 $900,000 was charged to operations related to
the increase in the discount from $.008 at December 31, 2002 to $.032 at
September 30, 2003.
Xxxxx Xxxxx, the Company's first CEO, was granted an option to purchase 6
million shares at the exercise price of 20% of the closing bid price on October
21, 2002. The period to exercise this option is 10 years, i.e. until October 21,
2012.
At their first Board Meeting on February 22, 2002, the Directors approved a
payment of 80,000 shares for each month served, in the form of an option to
purchase this number of shares. The exercise price was six-tenths of one cent
($0.006), representing 20% of the three cent ($0.03) public bid price of shares
on the date of this option. In subsequent years, the exercise price shall be 20%
of the closing bid price on the anniversary of this date, i.e. February 22,
2003, February 22, 2004, etc. This agreement remains in force. The term to
exercise this option is 3 years, i.e. until February 22, 2005 for shares earned
during the period February 22, 2002 through February 21, 2003.
As a Director, Xxxxx Xxxxx'x option to purchase 1 million shares is included in
the option to purchase 6 million shares mentioned immediately above. Xxxxx
Xxxxxx, who served as Director for one year until he resigned as Director on
February 21, 2003, has an option to purchase 1 million shares at $0.006 until
February 22, 2005. Xxxxxxx X. Xxxxxxx, who continues serving as a Director, will
have earned the option to purchase 2 million shares as of February 21, 2004, as
will Xxxxx Xxxxxxxxx.
Personnel were given options to purchase common shares as follows: Xxxxxx
Xxxxxxx was given the option to purchase 100,000 shares of common stock at the
exercise price of $0.01, representing the closing bid price of the stock on
December 13, 2002. The time to exercise this option is two years, i.e. until
December 13, 2004. Xxxxx Xxxxxx was given the option to purchase 100,000 shares
of common stock at the exercise price of $0.01, representing the closing bid
price of the stock on December 13, 2002. The time to exercise this option is two
years, i.e. until December 13, 2004.
During the nine months ended September 30, 2003 the Company granted options to
purchase 956,731 shares of common stock to purchasers of 956,731 shares of its
common stock in December 2002 and February 2003 for an aggregate of $11,500. The
options are exercisable at $.05 per share and expire when the trading price of
the Company's common stock is at least $.07 for a period of ten days.
On April 9, 2003 the Company converted $1,010,500 in advances and $67,081 of
accrued interest into a convertible promissory note in the amount of $1,077,581.
As of January 7, 2004, the total amount is now on the order of $1.2 million. The
note bears interest at 8% per annum and is due on January 1, 2005. The note may
be converted into common shares of the Company as follows:
a. The unpaid principal in whole or in part together with accrued interest
shall at the option of the holder be converted into the class of the Company's
shares on the same terms and conditions described for Purchaser herein. The
holder may elect to negotiate separate terms and conditions however the unpaid
balance will not be payable in cash, but convertible only into shares of the
Company. For the purposes of this calculation the aggregate value of the
Company's shares received by the holder in conversion shall be determined by
subtracting $1,000,000 from the unpaid original principal balance of the note,
which remains unpaid at the time of conversion. A financing agreement is defined
as the receipt by the Company of a least $1,500,000 of net cash proceeds from
the sale of capital stock. With the current transaction, the Company will have
so far have been promised $1.02 million as of December 31, 2004.
b. The unpaid principal in whole or in part together with accrued interest
shall be converted into shares if the Company realizes revenue of $1,500,000
during the period commencing April 9, 2003 and ending on December 31, 2004. The
price per share shall be determined as provided in c below. The unpaid balance
will not be payable in cash but convertible only into shares of the Company. For
the purposes of this calculation the aggregate value of the Company's shares
received by the holder in conversion shall be determined by subtracting
$1,000,000 from the unpaid original principal balance of the note, which remains
unpaid at the time of conversion.
c. If no financing agreement has occurred by December 31, 2004 and/or the
Company has not realized the requirements of a and b above the holder may elect
to convert the unpaid principal balance and accrued interest into the number of
common shares of the Company determined by dividing the unpaid balance by the
average bid price of the Company's common stock for the previous 30 trading
days. The unpaid balance will not be payable in cash but convertible only into
shares of the Company.
2.04. GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance
by Seller of this Agreement require no action by, consent or approval of, or
filing with, any Governmental Authority other than (a) compliance with any
applicable requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act") and federal and state securities laws or (b)
any actions, consents, approvals or filings otherwise expressly referred to in
this Agreement.
2.05. NO CONFLICT. The execution, delivery and performance by Seller of
this Agreement and the consummation by Seller of the transactions contemplated
herein will not, with or without the giving of notice or the lapse of time, or
both, violate, conflict with or constitute a default under (a) any provision of
law, rule or regulation to which Seller is subject, (b) any order, judgment or
decree applicable to Seller, (c) any provision of the charter documents of
Seller or (d) any indenture, agreement or other instrument by which Seller is
bound.
2.06. TITLE TO SHARES.
(a) As of the Closing, Seller will own and will have good and marketable
title to, and sole record and legal ownership of, the Securities, free and clear
of any and all liens, security interests, pledges, mortgages, charges,
limitations, claims, restrictions, rights of first refusal, rights of first
offer, rights of first negotiation or other encumbrances of any kind or nature
whatsoever (collectively, "Encumbrances").
(b) Upon consummation of the Closing, without exception, Purchaser will
acquire from Seller legal and beneficial ownership of, and good and marketable
title to the Securities to be sold to Purchaser by Seller, free and clear of all
Encumbrances. It is recognized that the Securities being purchased are Common
Shares, restricted from sale for a period of 12 months.
2.07. ADVISORY FEES. Xx. Xxxxxx X. Xxxxxx has been retained by Seller and
will be paid by Seller 2% of Purchase Price in installments as the Purchase
Price is received by Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
3.01. ORGANIZATION; GOOD STANDING. Purchaser is duly organized, validly
existing and in good standing under the laws of the state of its incorporation
or organization and has all requisite power and authority under such laws to
carry on its business as now conducted.
3.02. POWER AND AUTHORITY; EFFECT OF AGREEMENT. The purchase of the
Securities to be acquired by Purchaser, the payment and delivery of the Purchase
Price, the execution, delivery and performance by Purchaser of this Agreement
and the consummation by Purchaser of the transaction contemplated herein have
been duly authorized by all necessary action on the part of Purchaser. This
Agreement has been duly and validly executed and delivered by Purchaser and
constitutes a valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights generally and is
subject to general principles of equity.
3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance
by Purchaser of this Agreement require no action by, consent or approval of, or
filing with, any Governmental Authority or any other Person other than (i)
compliance with any applicable requirements of the HSR Act and federal and state
securities laws or (ii) any actions, consents, approvals or filings otherwise
expressly referred to in this Agreement.
3.04. NO CONFLICT. The execution, delivery and performance by Purchaser of
this Agreement and the consummation by Purchaser of the transaction contemplated
herein will not, with or without the giving of notice or the lapse of time, or
both, violate, conflict with or constitute a default under (a) any provision of
law, rule or regulation to which Purchaser is subject, (b) any order, judgment
or decree applicable to Purchaser, (c) any provision of the charter documents of
Purchaser or (d) any indenture, agreement or other instrument by which Purchaser
is bound.
3.05. INVESTMENT REPRESENTATIONS.
(a) The Securities to be acquired by Purchaser will be acquired by
Purchaser for its own account, not as a nominee or agent, and not with a view to
or in connection with the sale or distribution of any part thereof, other than
pursuant to a valid exemption from the registration requirements of the
Securities Act of 1933 (the "Securities Act").
(b) Purchaser understands that the Securities being purchased hereunder
will not be registered under the Securities Act on the ground that the sale of
the Securities provided for in this Agreement is exempt from registration under
the Securities Act and that the reliance of Seller on such exemption is
predicated in part on Purchaser's representations set forth in this Agreement.
(c) Purchaser acknowledges that it is able to fend for itself in the
transaction contemplated by this Agreement and has the ability to bear the
economic risks of its investment pursuant to this Agreement.
(d) Purchaser understands that the Securities being purchased by Purchaser
hereunder are restricted securities within the meaning of Rule 144 under the
Securities Act and that the Securities are not registered and must be held
indefinitely unless they are subsequently registered or an exemption from such
registration is available.
3.06. TAX MATTERS. Neither Purchaser nor any direct or indirect transferee
of the Securities shall at any time transfer cash or other property to the
Seller in a manner that would cause Purchaser or such transferee to be treated
as having transferred property to Seller for purposes of applying Section 351 of
the Internal Revenue Code of 1986, as amended, to the transaction contemplated
hereby.
3.07. ADVISORY FEES. There is no investment banker, broker, finder or other
intermediary or financial advisor that has been retained by or is authorized to
act on behalf of Purchaser who might be entitled to any fee, commission or
reimbursement of expenses upon consummation of the transactions contemplated by
this Agreement.
ARTICLE IV
COVENANTS OF THE PARTIES
4.01. COOPERATION; FURTHER ASSURANCES. The parties hereto will use all
commercially reasonable efforts, and will cooperate with each other, to secure
all necessary consents, approvals, authorizations, exemptions and waivers from
third parties as shall be required in order to comply with Applicable Laws and
to effectuate the transaction contemplated hereby, and will otherwise use all
reasonable efforts to cause the consummation of such transactions in accordance
with the terms and conditions hereof. At any time or from time to time after the
Closing, at the request of Seller or Purchaser, the parties shall execute and
deliver any further instruments or documents and take all such further action as
may be reasonably necessary in order to evidence or otherwise facilitate the
consummation of the transaction contemplated hereby.
4.02. CERTAIN FILINGS. The parties hereto shall cooperate with oneanother
in determining whether any action by or in respect of, or filing with, any
Governmental Authority ("Required Governmental Approvals") is required or
reasonably appropriate, or any action, consent, approval or waiver from any
party to any contract ("Required Contractual Consents") is required or
reasonably appropriate, in connection with the consummation of the transactions
contemplated by this Agreement. Subject to the terms and conditions of this
Agreement, in taking such actions or making any such filings, the parties hereto
shall furnish information required in connection therewith and seek timely to
obtain any such actions, consents, approvals or waivers. Without limiting the
foregoing, the parties hereto shall each promptly complete and file all reports
and forms, and respond to all requests or further requests for additional
information, if any, as may be required or authorized under the HSR Act and
federal and state securities laws.
4.03. CONFIDENTIALITY.
(a) The parties hereto will, and will cause their Affiliates and
representatives to, treat any data and information obtained with respect to any
of the other parties hereto or any of their Affiliates from any representative,
officer, director or employee of any of the other parties hereto, or from any
books or records of any of the other parties hereto in connection with this
Agreement, confidentially and with commercially reasonable care and discretion,
and will not disclose any such information to third parties; provided, however,
that the foregoing shall not apply to (i) information in the public domain or
that becomes public through disclosure by any party to treat the information as
confidential, or its Affiliates or representatives, so long as such other party
is not in breach of a confidentiality obligation, (ii) information required to
be disclosed by Applicable Law, (iii) information required to be disclosed, on a
confidential basis, whenever possible, to obtain any Required Governmental
Approvals or Required Contractual Consents; or (iv) any information that is
disclosed, on a confidential basis, whenever possible, to any actual or
prospective lenders or investors in connection with financing the transactions
contemplated by this Agreement.
(b) In the event that the Closing fails to take place and this Agreement is
terminated, each party hereto, upon the written request of any other party
hereto, will, and will cause its Affiliates and representatives to, promptly
deliver to the requesting party any and all documents or other materials
furnished by that party in connection with this Agreement or the Asset Purchase
Agreement without retaining any copy thereof and without using any confidential
information to solicit any customers of that party. In the event of such
request, all other documents, whether analyses, compilations or studies, that
contain or otherwise reflect the information so furnished shall be destroyed or
shall be returned, and it shall be confirmed in writing that all such materials
have been returned or destroyed. No failure or delay by any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
4.06. SPECIFIC PERFORMANCE. The parties hereto recognize and agree that in
the event of a breach by any party hereto of Section 4.05, money damages would
not be an adequate remedy for such breach and, even if money damages were
adequate, it would be impossible to ascertain or measure with any degree of
accuracy the damages sustained therefrom. Accordingly, if there should be a
breach or threatened breach by any party hereto of provisions of Section 4.05,
each other party hereto shall be entitled without the requirement of posting a
bond or other security to an injunction restraining any breach without showing
or proving actual damage. Nothing in the preceding sentence shall limit or
otherwise affect any remedies otherwise available under Applicable Law.
ARTICLE V
CONDITIONS TO CLOSING
5.01. CONDITIONS OF ALL PARTIES.
(a) All Required Governmental Approvals for the transaction contemplated by
this Agreement shall have been obtained without the imposition of any conditions
that would have a Material Adverse Effect. All such Required Governmental
Approvals shall be in effect, and no actions, suits, hearings, arbitrations or
proceedings (public or private) (collectively, "Proceedings") shall have been
instituted or threatened by any Governmental Authority against Seller or
Purchaser (or any of their Affiliates) with respect thereto as to which there is
a material risk of a determination that would terminate the effectiveness of, or
otherwise materially and adversely modify the terms of, any such Required
Governmental Approval; all applicable waiting periods with respect to such
Required Governmental Approvals shall have expired; and all conditions and
requirements prescribed by Applicable Law or by such Required Governmental
Approvals to be satisfied on or prior to the Closing shall have been satisfied
allowing all such Required Governmental Approvals to be and to remain in full
force and effect assuming continued compliance with the terms thereof after the
Closing.
(b) The Required Contractual Consents shall have been obtained without the
imposition of any conditions that would have a Material Adverse Effect. All such
Required Contractual Consents shall be in full force and effect and no
Proceeding shall have been instituted or threatened with respect thereto that
would have a Material Adverse Effect. All conditions and requirements prescribed
by any required Contractual Consent (or any such other consent) to be satisfied
on or prior to the Closing Date shall have been satisfied in all material
respects.
(c) The transaction contemplated by this Agreement and the consummation of
the Closing shall not violate any Applicable Law. No temporary restraining
order, preliminary or permanent injunction, cease and desist order or other
order issued by any court of competent jurisdiction or any competent
Governmental Authority or any other legal restraint or prohibition preventing
the consummation of the transaction contemplated hereby shall be in effect, and
there shall be no pending or threatened actions or proceedings by any
Governmental Authority (or determinations by any Governmental Authority) or by
any other Person challenging or in any manner seeking to restrict or prohibit
the consummation of the transaction contemplated hereby.
5.02. CONDITIONS TO THE OBLIGATIONS OF SELLER. Seller's obligation to sell
the Shares shall be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) Purchaser shall have performed and satisfied in all material respects
its obligations hereunder required to be performed or satisfied by it on or
prior to the Closing Date. Seller shall have received a certificate signed by
Purchaser to the foregoing effect.
(b) The representations and warranties of Purchaser contained in this
Agreement shall be true, complete and accurate in all material respects at and
as of the Closing Date, as if made at and as of the Closing Date. Seller shall
have received a certificate signed by Purchaser to the foregoing effect.
(c) Seller shall have acquired the Securities required to complete the
Transaction contemplated herein.
d) Concurrently with the Closing, Purchaser shall have delivered to Seller
the Purchase Price in accordance with Article I hereof.
5.03. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligation of Purchaser
to purchase the Securities shall be subject to the satisfaction or waiver of the
following conditions on or prior to the Closing Date:
(a) Seller shall have performed and satisfied in all material respects its
obligations hereunder required to be performed or satisfied by it on or prior to
the Closing Date. Purchaser shall have received a certificate signed by a duly
authorized executive officer of Seller to the foregoing effect and to the effect
that, to the knowledge of such executive officer, the foregoing conditions have
been satisfied.
(b) The representations and warranties of Seller contained in this
Agreement shall be true, complete and accurate in all material respects at and
as of the Closing Date, as if made at and as of the Closing Date. Purchaser
shall have received a certificate signed by a duly authorized executive officer
of Seller to the foregoing effect and to the effect that, to the knowledge of
such executive officer, the foregoing condition has been satisfied.
(c) Seller shall deliver for sale to Purchaser on the Closing Date those
certificates (and any necessary stock transfer instruments) representing all
Securities to be sold by Seller to Purchaser pursuant to Article I hereof.
ARTICLE VI
TERMINATION PRIOR TO CLOSING
6.01. TERMINATION. This Agreement may be terminated at any time prior to
the Closing:
(a) By the mutual written consent of Seller and Purchaser; or
(b) By either Seller or Purchaser by written notice if the closing of the
transactions contemplated by the Asset Purchase Agreement has not been
consummated by January 30, 2004 (the "Outside Date").
6.02. EFFECT ON OBLIGATIONS. Termination of this Agreement pursuant to this
Article VI shall terminate all rights and obligations of the parties hereunder
other than those contained in this Section 6.02.
ARTICLE VII
MISCELLANEOUS
7.01. EXPENSES.
(a) Except as otherwise provided herein, Purchaser and Seller shall cause
all costs, expenses, liabilities, taxes and other charges incurred by Purchaser
and Seller in connection with this Agreement and the transactions contemplated
hereby to be paid each to their own account, including the reasonable fees and
expenses of attorneys and other advisors.
(b) In the event that this Agreement is terminated and/or the transaction
contemplated hereby is not consummated, Seller shall be responsible for all of
its expenses (including any fees and expenses of attorneys and other advisors
engaged by Seller) and Purchaser shall be responsible for its expenses
(including any fees and expenses of attorneys and other advisors engaged by
Purchaser).
7.02. NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) if
personally delivered, when so delivered, (ii) if mailed, five Business Days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid and addressed to the intended recipient as set forth
below, (iii) if given by telex or telecopier, once such notice or other
communication is transmitted to the telex or telecopier number specified below
and the appropriate answer back or telephonic confirmation is received, provided
that such notice or other communication is promptly thereafter mailed in
accordance with the provisions of clause (ii) above or (iv) if sent through an
overnight delivery service in circumstances to which such service guarantees
next day delivery, the day following being so sent:
If to Seller:
Xxxxx X. Xxxxxxxxx
GenoMed, Inc.
000 Xxxxx Xxxxxx Xxx.
Xx. Xxxxx, XX 00000
Telecopier: 314-754-9772
If to Purchaser:
Xxxxxx Xxxxxx
Advanced Optics Electronics, Inc.
0000 Xxxxxxxxxx Xxxxxx XX
Xxxxx 0
Xxxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
7.03. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the internal laws (without reference to choice or conflict of
laws) of the State of Illinois.
7.04. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings and negotiations, both written and oral,
between the parties with respect to the subject matter of this Agreement.
Neither this Agreement nor any provision hereof is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
7.05. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other parties hereto.
7.06. AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by all parties hereto, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No waiver by a party of any default, misrepresentation or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent occurrence. No failure or delay by a party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
7.07. SEVERABILITY. If any provision of this Agreement, or the application
thereof to any Person, place or circumstance, shall be held by a court of
competent jurisdiction to be invalid, unenforceable or void, the remainder of
this Agreement and such provisions as applied to other Persons, places and
circumstances shall remain in full force and effect only if, after excluding the
portion deemed to be unenforceable, the remaining terms shall provide for the
consummation of the transactions contemplated hereby in substantially the same
manner as originally set forth at the later of the date this Agreement was
executed or last amended.
7.08. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. All references to an Article or Section include all subparts thereof.
7.09. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party hereto may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written
approval of each other party, which approval shall not be unreasonably withheld.
7.10. RESTRICTIVE LEGEND. The certificates representing the Securities will
bear the following legends giving notice of restrictions on transfer as
follows:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed and delivered by the undersigned duly authorized officers as of the day
and year first above written.
GenoMed, Inc., A Florida Corporation
By: /s/Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
Advanced Optics Electronics, Inc.,
A Nevada Coropration
By: /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Chairman and Chief Executive Officer
