Exhibit 3.4
EXCHANGE AGREEMENT
AMENDMENT NO. 1
This Amendment no. 1 to Exchange Agreement is made as of this 7 day of
June, 2001, by and between GreatBio Technologies, Inc. (f/k/a Idaho
Technical, Inc. referred to herein as ITI), a Nevada Corporation
("GreatBio"), and Biophan, LLC, a New York Limited Liability Company
("Biophan").
WHEREAS, the parties hereto entered into an Exchange Agreement dated
December 1, 2000 relating to the transfer from Biophan to GreatBio of certain
technology described therein; and
WHEREAS, the parties have agreed to modify Sections 1.1, 1.2, 1.3(b) and
1.3(d) of the Agreement which describe the consideration for the issuance of
shares of GreatBio and certain other funding requirements.
NOW, THEREFORE, in consideration of the premises set forth herein and
for all other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Amendment and Restatement of Section 1.1. Section 1.1 of the
Exchange Agreement is hereby amended and restated to read in its entirety as
follows:
"The parties hereby agree that ITI shall acquire from Biophan all of
the issued and outstanding shares of Antisense capital stock in
exchange for ten million, seven hundred fifty-nine thousand, one
hundred and one (10,759,101) shares of authorized but previously
unissued ITI common stock, par value $.005. The parties further agree
that in consideration of $175,000 to be delivered to Antisense at
Closing (as described in Section 1.3) ten million, seven hundred fifty
nine thousand, one hundred and one (10,759,101) shares of authorized
but previously unissued ITI common stock, shall be issued to certain
individuals and in amounts as designated by ITI (the "Xxxxx Group").
(a) Assets. It is also agreed by the parties hereto that by
acquiring the shares of Antisense capital stock, ITI will acquire
all rights, title and interest to the assets and property presently
owned by Antisense. Said assets and property are subject to certain
interests, liens and/or encumbrances which are to be further
described Antisense's financial statements or other schedules
provided to ITI and included in Attachment 1.1.
(b) Funding. At the Closing, as described below in Section 1.3,
the Xxxxx Group agrees to have delivered to Antisense $175,000 and
to arrange for the further commitment for future funding of an
additional $325,000 to Antisense as follows: $175,000 on or before
the second anniversary of this Agreement and $150,000 on or before
the third anniversary of this Agreement. In addition, Biophan may
from time to time advance funds to ITI (the "Advances") to fund
ITI's operating expenses until such time as ITI is sufficiently
capitalized. ITI agrees to repay the Advances upon terms and
conditions mutually agreeable to Biophan and ITI.
(c) Management. The parties agree that Biophan, or its wholly
owned subsidiary, shall be the general manager of ITI for at least
three (3) years following the execution of this Agreement and
Biophan, or its wholly owned subsidiary, specifically agrees to
oversee the operation and logistics of the CRADA.
(d) Reorganization. The parties hereto agree that at the Closing
(i) Antisense shall become a wholly-owned subsidiary of ITI; (ii)
the business operations of ITI shall be reorganized, and (iii) the
name of ITI shall be changed to GreatBio Technologies, Inc."
2. Amendment and Restatement of Section 1.2. Section 1.2 of the
Exchange Agreement is hereby amended and restated to read in its entirety as
follows:
(a) Upon the Closing of this Agreement, ITI shall cause to be issued
and delivered an aggregate of 21,518,202 shares of ITI common stock to
be distributed as follows:
(i) A total of 10,759,101 shares shall be delivered to Biophan, the
sole shareholder of Antisense, in exchange for all the issued and
outstanding shares of Antisense capital stock, which shares shall
be delivered to ITI at the Closing.
(ii) A total of 10,759,101 shares shall be delivered to the Xxxxx
Group, in consideration of the $175,000 to be paid at Closing as
more fully described in Section 1.1. In addition, the Xxxxx Group
shall provide funding of $325,000 as follows: $175,000 on or
before the second anniversary of this Agreement and $150,000 on or
before the third anniversary of this Agreement. An aggregate of
$500,000 in funding is to be used by Antisense to develop those
certain U.S. Patents and any underlying inventions and applications
directed thereto as depicted in Attachment 1.1.
(iii) In addition to the provisions of Section1.2(a)(ii) above, the
parties identified therein will provide ongoing assistance in
raising capital for the new venture, maintaining good standing in
public markets, and developing the company. It is anticipated that
these parties will use their reasonable efforts to raise at least
$2 million, $325,000 of which will be used to fund the obligations
under paragraph (ii) above, and $1,675,000 of which will be used to
fund research and development and patent acquisitions related to
the MRI-Resistant Cardiac Pacemakers to be acquired from Biophan
sometime after the consummation of this transaction. All such
funds shall be raised at a price per share which results in a
market capitalization of ITI following the completion of the
offering of at least $12 million.
(iv) In the event ITI does not fulfill all of its obligations set
forth in this Section 1.2, all of the patents and intellectual
property set forth in Section 1.1(a) above and being acquired by
ITI hereunder, shall revert and be fully assigned and transferred
to Biophan.
(b) The 21,518,202 shares of ITI common stock to be issued hereunder
(the "ITI Shares") shall be authorized but previously unissued shares
of ITI common stock. The ITI Shares shall be issued to those persons
and in the respective amounts set forth in Section 1.2(a) above.
(c) All ITI Shares to be issued hereunder are deemed "restricted
securities" as defined by Rule 144 of the Securities Act of 1933, as
amended (the "1933 Act"), and the recipients shall represent in
writing that they are acquiring said shares for investment purposes
only and without the intent to make a further distribution of the ITI
Shares. All ITI Shares to be issued under the terms of this Agreement
shall be issued pursuant to an exemption from the registration
requirements of the 1933 Act, under Section 4(2) of the 1933 Act and
the rules and regulations promulgated thereunder. Certificates
representing the ITI Shares to be issued hereunder shall bear a
restrictive legend in substantially the following form:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be
offered for sale, sold or otherwise transferred except in
compliance with the registration provisions of such Act or pursuant
to an exemption from such registration provisions, the availability
of which is to be established to the satisfaction of the Company."
3. Amendment and Restatement of Section 1.3(b). Section 1.3(b) of the
Exchange Agreement is hereby amended and restated to read in its entirety as
follows:
"ITI shall cause to be delivered to Antisense the sum of $175,000, and
ITI agrees to the further commitment to arrange for funding of an
additional $325,000 as follows: $175,000 on or before the second
anniversary of this Agreement and $150,000 on or before the third
anniversary of this Agreement."
4. Amendment and Restatement of section 1.3(d). section 1.3(d) of the
Exchange Agreement is hereby amended and restated to read in its entirety as
follows:
"In consideration of the $175,000, ITI shall deliver to the Xxxxx
Group, stock certificates representing an aggregate of 10,759,101
shares of ITI common stock, which certificates shall bear a standard
restrictive legend in the form customarily used with restricted
securities and as set forth in Section 1.2(c) above."
5. Conflicts. Except as expressly amended or modified by this Amendment
No. 1, the Exchange Agreement shall continue in full force and effect. In
the event of any conflict between the terms of the Exchange Agreement and the
terms of this Amendment No. 1, the terms of this Amendment No. 1 shall govern
and control.
6. Further Assurances. The parties agree to execute such further
instruments, agreements and documents and to take such further action as may
reasonably be necessary to carry out the intent of this Amendment No. 1.
7. Counterparts. This Amendment No. 1 may be executed in any number of
counterparts, each which shall be deemed an original, and all of which
together shall constitute one instrument.
8. Governing Law. This Amendment No. 1 shall be governed by and
construed under the laws of New York, without reference to principles of
conflicts oflaws.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Exchange Agreement by their signature or the signature of their duly
authorized representatives below.
GREATBIO TECHNOLOGY, INC.
By /s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Director
BIOPHAN, LLC
By /s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, CEO
