Exhibit 10.1 Agreement and Plan of Exchange by and Between GenoMed, Inc. and
Genomic Medicine, LLC and its sole owner
AGREEMENT AND PLAN OF EXCHANGE
BY AND BETWEEN
GENOMED, INC.
And
GENOMIC MEDICINE, LLC.
AND
ITS SOLE OWNER
Dated: November 9, 2001
Table of Contents
1. Delivery of Shares of the Company 1
2. Consideration for Transfer of Shares 1
3. Miscellaneous Provisions Relating to Delivery of GMED Stock 1
4. Access to Books and Records 1
5. Closing 2
6. Representations and Warranties of the Owner 2
a. Organization and Standing 2
b. Subsidiaries, Etc. 2
c. Capital Stock 2
d. Indebtedness 2
e. Financial Statements 2
f. Contracts and Other Commitments 3
g. Intellectual Property 3
h. Assets 3
i. Insurance 4
j. Employees 4
k. Employee Benefit Plans 4
l. ERISA 4
m. Litigation 5
n. Accounts Receivable 5
o. Inventories 5
p. Purchase Commitments and Outstanding Bids 5
q. Real Estate 6
r. Changes, Dividends, Etc. 6
s. Tax Returns and Liabilities 6
t. Breaches of Contracts, Etc. 6
u. Title to Company Stock 7
v. Conflict of Interests 7
w. Disclosures 7
7. Representations and Warranties of GENOMED, INC 7
a. Organization and Standing 7
b. Capital Stock 7
c. Validity of Shares 8
d. Changes, Dividends, Etc. 8
e. Authorization of Agreement 8
f. No Violation of Law, Etc. 8
g. Financial Statements 8
h. Material Changes 8
i. First Stage Working Capital 8
8. Conditions & Obligations of Company and Owner 8
9. Conditions & Obligations of GenoMed, Inc. 10
10. Certain Covenants Prior to Closing 11
11. Survival of Representations and Warranties; Indemnification 12
a. Survival 12
b. Indemnification by Company and Owner 12
c. Indemnification by GMED 13
d. Procedure for Indemnification 13
e. After -Tax Basis 13
12. Investment Representation 14
13. Further Assurances 15
14. Expenses 15
15. Employees of the Company 15
16. Directors 15
17. Other Matters 16
a. Other Agreements 16
b. Amendment 16
c. Notices 16
d. Specific Performance 16
e. Assignment 16
f. Paragraphs and Other Headings 16
g. Choice of Law 16
h. No Waiver 16
i. Severability 17
j. Public Releases 17
k. Counterparts 17
Exhibit "A" 18
Exhibit "B" 19
Exhibit "C" 20
Exhibit "D" 21
Exhibit "E" 23
Exhibit "F" 24
Exhibit "G" 25
Exhibit "H" 26
Exhibit "I" 27
Exhibit "J" 28
Exhibit "K" 29
Exhibit "L" 30
Exhibit "M" 31
AGREEMENT AND PLAN OF EXCHANGE
AGREEMENT AND PLAN OF EXCHANGE (the "Agreement"), dated as of November 9,
2001, between GenoMed, Inc., a Florida Corporation ("GMED") and Genomic
Medicine, LLC a Delaware limited liability company (the "Company") and the sole
owner of the Company, As listed in Exhibit A attached hereto and by this
reference made a part hereof ("Owner").
Witnessed:
WHEREAS, the Owner represents that he is the legal and beneficial owner of
all of the outstanding ownership interests in the Company; and
WHEREAS, Owner desires to exchange one hundred percent (100%) of the
ownership interests in the Company for shares of Common Stock of GMED and GMED
desires to effect such exchange and purchase, all on the terms and condition as
hereinafter set forth in such a manner that the exchange will constitute a
tax-free reorganization pursuant to the provisions of Section 368(1)(8) of the
Internal Revenue Code of 1986, as amended.
NOW THEREFORE, in consideration of the promises and the mutual agreements
and undertakings hereinafter set forth, the parties do hereby adopt his
Agreement as a plan of reorganization, and, in order to consummate said plan, do
hereby agree as follows:
1. Delivery of Ownership Interests of the Company. The Owner agrees to transfer
and deliver to GMED, and GMED agrees to acquire one hundred percent (100%) of
the ownership interests in the Company from the Owner as set forth in Exhibit
"B" attached hereto and by this reference made a part hereof.
2. Consideration for Transfer of Shares. GMED agrees to issue fifty million
(50,000,000) shares of GMED common stock to Owner, and arrange funding of
Company in accordance with Exhibit "c" attached hereto. Upon the terms and
subject to the representations and conditions set forth in this Agreement, GMED
agrees to issue said shares upon finalization of this Agreement and deliver said
shares to the Owner based upon timeframes outlined in Exhibit "B" attached
hereto.
In addition, one hundred million (100,000,000) shares of GMED common stock shall
be available to Company and Owner for a period of five (5) years from the date
of this Agreement through a performance based contingent stock issuance. Said
shares shall be available to be issued to the Owner based upon the terms,
conditions and achievements set forth in Exhibit "D" attached hereto.
3. Miscellaneous Provisions Relating to Delivery of GMED's Common Stock. No
fractional shares of Common Stock of GMED will be delivered and the number of
shares to be issued to the Owner will be rounded up to the nearest whole share
if the Owner are entitled to receive one-half or more of a share and rounded
down to the nearest whole share if the Owner are entitled to receive less than
one-half of a share.
4. Access to Books and Records. Except as hereinafter provided, GMED and its
officers, employees and agents, shall have full access at all reasonable times
from and after the date hereof to the plants, facilities, books and records of
the Company and the Company shall cooperate fully with GMED to the end that it
may become familiar with the properties and business of the Company. GMED agrees
to treat any information which is disclosed to GMED by the Company and is
proprietary or confidential to the Company, as confidential information, and in
the event the Closing, as defined in Section 5 of this Agreement, does not take
place, all documents will be returned to the Company and GMED will not make or
retain copies of any documents or make use of any confidential information
disclosed to it in the conduct of its business.
5. Closing. The Closing of the exchange provided for herein will take place at
GMED's office at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 on
November 9, 2001, such date being herein referred to as the "Closing Date". At
the Closing, the Owner shall arrange to deliver to GMED all assignments, and
other instruments which may be necessary, desirable, or appropriate in order to
transfer to GMED all of the outstanding ownership interests in the Company, all
in form and substance reasonably satisfactory to counsel for GMED. At such
Closing, GMED shall deliver to the Company certified documents evidencing the
shares of Common Stock of GMED to be delivered to the Owner pursuant to
Paragraph 2 hereof, together with such other instruments which may be necessary,
desirable, or appropriate to accomplish such transfers, all in form and
substance satisfactory to the Owner.
6. Representations and Warranties of the Owner. The Owner represents and
warrants to and agrees with GMED as follows:
a. Organization and Standing. The Company is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with full limited liability company power to carry on
its business as now being conducted and to own and operate the property and
assets now owned and operated by it, and is duly qualified to transact
business and in good standing in each jurisdiction where the ownership of
its properties or the conduct of its business requires it to be licensed or
qualified to do business. The Company also delivered to GMED a copy of its
Articles of Formation and all amendments thereto, certified by the
Secretary of State of Delaware, and a copy of its Limited Liability
Agreement as amended, certified by its Owner, which documents are complete
and correct as of the date of this Agreement.
b. Subsidiaries, Etc. The Company has no subsidiaries and is not party to
any partnership, joint venture or similar agreement, except as disclosed in
the schedule referred to in subparagraph (f) of Paragraph 6 hereof.
c. Capital Stock. Owner is the sole record holder and beneficial owner of
one hundred percent (100%) of the ownership interests in the Company. There
are no options, warrants or other agreements or commitments which are now
or may in the future obligate the Company to issue or purchase any
ownership interest or other securities.
d. Indebtedness. The Company has delivered to GMED a schedule, (The
Indebtedness Schedule"), as attached as Exhibit "E" hereto, identified by
reference to this subparagraph, listing all promissory notes payable by the
Company, all agreements of the Company to borrow money from others, and all
commitments by others to lend money to the Company. As to each note,
obligation to borrow and loan commitment, such schedule accurately sets
forth the interest rate, terms of payment of principal and interest,
identity of security (if any) and any other material terms of such
indebtedness. As of the Closing Date, the Company is not in default in any
respect under, and is not otherwise, in violation or contravention of, any
of the terms or provisions of any note, loan agreement, agreement to borrow
money from others or any commitment by others to lend money.
e. Financial Statements. The Company has delivered to GMED a balance sheet
(the "Balance Sheet"), as attached as Exhibit "F" hereto, of the Company as
of October 31, 2001 (the "Balance Sheet Date"). The Balance Sheet is
complete and fairly represents the financial position of the Company on the
indicated dates and the results of its present financial position of the
Company on the indicated dates and the results of its operations for the
indicated periods. The Balance Sheet has been prepared on the tax basis of
accounting consistently applied. The Company has no liabilities, whether
absolute, accrued, contingent or otherwise, other than: (i) liabilities
disclosed; (ii) incurred in "arms-length" transactions in the ordinary
course of business since the Balance Sheet Date; or (iii) liabilities
disclosed in subparagraph (k) of this Paragraph 6 or the schedule referred
to in subparagraph (f) of this paragraph 6.
f. Contracts and Other Commitments. The Company has delivered to GMED a
complete and accurate schedule (the "Material Contract Schedule"), attached
as Exhibit "G" hereto, identified by reference to this subparagraph,
listing and briefly describing all Material Contracts. For this purpose,
the term "Material Contract" shall be defined to mean (i) all contracts and
commitments out of the ordinary course of business; (ii) all contracts and
commitments involving an obligation which cannot or, in reasonable
probability, will not be performed or terminated within sixty (60) days
from the date hereof; (iii) all bonus, incentive compensation, pension,
group insurance or employee welfare plans of any nature whatsoever; (iv)
all collective bargaining agreements or other contracts or commitments to
or with any labor unions or other employee representatives or groups of
employees; (v) employment contracts and other contracts, agreements or
commitments to or with individual employees, agents or consultants
extending for a period of more than three (3) months from the date hereof
or providing for earlier termination only upon the payment of a penalty or
equivalent thereof; or (vi) all other contracts or commitments providing
for payments based in any manner upon the sales, purchases or profits of
the company. There has not been any material default in any obligation to
be performed by the Company under any Material Contract listed on the
Material Contract Schedule, and the Company has not waived any material
right under any such Material Contract.
g. Intellectual Property. The Company and/or Owner own, or are licensed or
otherwise have the full and exclusive rights to use, all patents,
trademarks, trade names, copyrights, technology, know-how, processes, names
and likenesses used in or necessary for the conduct of its business as
heretofore conducted. The Company and/or Owner have delivered to GMED a
complete and accurate schedule (the "Intellectual Properties Schedule"),
attached as Exhibit "H" hereto, identified by reference to this
subparagraph, listing all domestic and foreign patents, patent
applications, licenses, formulae, trademarks, trade names and copyrights
owned or held by the Company and/or Owner and a summary of the terms of all
agreements relating to technology, know-how or processes which the Company
is licensed or authorized to use by others. Except as set forth in the
Intellectual Property Schedule, the Company has the sole and exclusive
right to use the patents, trademarks, trade names, copyright, technology,
know-how, processes, names and likenesses referred to therein, and the
consummation of the contemplated transactions will not alter or impair any
such rights; no claims have been asserted by any person to the use of any
such patents, trademarks, trade names, copyrights, technology, know-how,
processes, names and likenesses or challenging or questioning the validity
or effectiveness of any such licenses or agreements, and there is no valid
basis for any such claim and the use of such patents, trademarks, trade
names, copyrights, technology, know-how, processes, names and likenesses by
the Company does not infringe on the rights of any person.
h. Assets. The Company has delivered to GMED a complete and accurate
schedule, (the "Asset Schedule"), attached as Exhibit "I" hereto,
identified by reference to this subparagraph, containing (i) a complete
legal description of all real property owned, leased or otherwise used or
occupied by the Company, (ii) a list of all banks and other institutions in
which the Company has any account or safe deposit showing the identifying
numbers and names of the persons authorized to draw thereon or have access
thereto, and (iii) a list of all capitalized machinery, tools, equipment
owned, leased or otherwise used by the Company.
Except as disclosed on the schedule referred to in subparagraph (f) of this
Paragraph 6, except as disclosed in the schedule of assets supplied
pursuant to this subparagraph, and except as acquired after the date hereon
on terms approved by GMED, the Company has good and marketable title to all
property and assets used in its business, including all property and assets
reflected in the schedule referred to in this subparagraph and in the
Balance Sheet and all properties and assets acquired after the Balance
Sheet Date (other than assets disposed of since the Balance Sheet Date in
the ordinary course of business), subject to no liens, mortgages, pledges,
encumbrances or charges of any kind. The machinery, equipment and other
facilities of the Company are in satisfactory operating condition and
repair for the business now conducted by the Company. At the Closing, the
Company will deliver to GMED copies of all records, including all
signatures or authorization cards, pertaining to such safe deposit boxes
and bank accounts.
i. Insurance. The Company has delivered to GMED a complete and accurate
schedule, (the "Insurance Schedule"), attached as Exhibit "J" hereto,
identified by reference to this subparagraph, listing and briefly
describing all policies of fire, liability, life, workmen's compensation
and other insurance, if any, maintained by the Company. All such policies,
if any, are in full force and effect, all premiums with respect thereto
covering all periods up to and including the Closing Date have been paid or
financed, and no notice of cancellation or termination has been received
with respect to any such policy. The schedule provided by the Company
identifies all risks that have been designated as being self-insured. No
insurance carrier has refused to insure any operations or property assets
of the Company, nor has any insurance carrier, which has carried, or
received any application for, any such insurance limited the coverage
during the last three (3) years.
j. Employees. The Company has delivered to GMED a complete and accurate
schedule, (the "Employees Schedule"), attached as Exhibit "K" hereto,
identified by reference to this subparagraph, listing each salaried
employee of the Company, together with each employee who is paid on an
hourly basis and showing their respective rates of compensation (including
bonuses, if any) and fringe benefits (including vacation time accrued to
the Balance Sheet Date). The Company has paid in full to its employees all
wages, salaries, commissions, bonuses and other direct compensation for all
services employed by them, other than amounts that have not yet become
payable in accordance with the Company's customary practices. Except as set
forth in the schedule, the Company is not liable for any severance pay or
other payments on account of termination of any former employee except as
listed in this schedule, and is in compliance with all applicable laws
respecting employment and employment practices, and terms and conditions of
employment and wages and hours.
k. Employee Benefit Plans. Except as set forth in a complete and accurate
schedule and identified by reference to this subparagraph delivered to
GMED, the Company does not have, nor are any of its employees covered by,
any obligation with respect to, any bonus, deferred compensation, pension,
profit-sharing, retirement, insurance, stock purchase, stock option, or
other fringe benefit plan, arrangement or practice, or any other employee
benefit plan (as defined in subparagraph (1), whether formal or informal
(collectively "Plans"). The schedule contains an accurate and complete
description of, and sets forth the annual amount payable pursuant to, each
of those Plans, and the Balance Sheets (which hereinafter shall refer to an
unaudited balance sheet of the Company) reflect in the aggregate an accrual
of all amounts accrued but unpaid under such Plans as of their respective
dates. The Company has performed and complied with all of its obligations
under or with respect to such Plans and such Plans have operated in
accordance with their terms. The Company has no commitment, whether formal
or informal and whether legally binding or not, to create any additional
Plans.
l. ERISA. The Company has delivered to GMED a schedule of all Plans
disclosed or required to be disclosed in subsection (k) above that are
employee benefit plans and any related trust agreements (collectively,
"Target Plans"). The schedule lists, and the Company shall provide GMED
with copies of, (a) the most recent Internal Revenue Section determination
letter relating to each of the Target Plans (and none of the Target Plans
has been amended or modified since the date of the determination letter
relating to it and each of the Target Plans has been operated in accordance
with the description contained in such determination letter), (b) the most
recent annual report (Form 5500 Series) and accompanying schedules of each
of the Target Plans filed with the Department of Labor pursuant to ERISA,
(c) the most recent certified financial statements of each of the Target
Plans as of the date thereof, and there have been no material changes in
the assets or liabilities associated with such Target Plans since the date
of such financial statements. The Company has delivered to GMED copies of,
and the schedule lists, all actuarial reports with respect to the Target
Plans, which reports are complete and accurate. Except as set forth in the
schedule, there are no accrued unpaid contributions to any of the Target
Plans. The Target Plans have operated in accordance with the applicable
requirements of ERISA and the Code. No reportable event (as defined in
section 4043(e) of ERISA), prohibited transactions (as defined in section
406 of ERISA or section 4975 of the Code), accumulated funding deficiency
(as defined in section 302 of ERISA) or plan termination (as defined in
Title IV of ERISA or section 411(d) of the Code) has occurred with respect
to any of the Target Plans. Except as set forth in the schedule, no filing,
application or other matters with respect to any of the Target Plans is
pending with the Internal Revenue Service, Pension Benefit Guaranty
corporation, United States Department of Labor or other governmental body,
none of the Target Plans has been terminated, the Pension Benefit Guaranty
Corporation has not taken any action to terminate any of the Target Plans
and no trustee has been appointed by any court to administer any of the
Target Plans. None of the Target Plans has been amended since the date of
the Balance Sheets or will be amended prior to the Closing Date.
m. Litigation. Except as identified in a complete and accurate schedule,
identified by reference to this subparagraph and delivered to GMED, the
Company is not engaged in or threatened with any legal action or other
proceeding before any court or administrative agency. The Company has not
violated any laws, regulations or order applicable to its business or
activities, and the conduct of the present business of the Company at the
present location is in conformity with all zoning and building code
requirements.
n. Accounts Receivable. All accounts receivable of the Company, whether or
not reflected in the Balance Sheets or the Interim Balance Sheet, represent
sales actually made in the ordinary course of business, and are current and
collectible net of any reserves shown on the Balance Sheets or the Interim
Balance Sheet (which reserves are adequate and were calculated consistent
with past practice). Subject to such reserves, each of the accounts
receivable has been collected in full or will be collected in full, without
any set-off, within ninety (90) days after the day on which it first
becomes due and payable.
o. Inventories. All inventory of the Company, whether or not reflected in
the Balance Sheets or the Interim Balance Sheet, consists of a quality and
quantity usable and salable in the ordinary course of business, except for
obsolete items and items of below-standard quality, all of which have been
written off or written down to net realizable value in the Balance Sheets
or the Interim Balance Sheet. All inventories not written off have been
recorded at the lower of average cost or market. The quantities of each
type of inventory (whether raw materials, work-in-process, or finished
goods) are not excessive, but are reasonable and warranted in the present
circumstances of the Company. All work in process and finished goods
inventory is free from any defect or other deficiency.
p. Purchase Commitments and Outstanding Bids. No purchase commitment of the
Company is in excess of normal, ordinary and usual requirements of its
business, or was made at any price in excess of the then current market
price, or contains terms and conditions more onerous than those usually and
customary in the industry. In the aggregate, the outstanding bids, sales
proposals, contracts or unfilled orders of the Company (i) will not (based
on costs at the Closing Date and reasonably foreseeable increases in such
costs) require the Company to supply goods or services at cost to the
Company in excess of the revenues to be received therefrom, and (ii) quote
prices which include a xxxx-up over reasonably estimated costs consistent
with past xxxx-ups on similar business.
q. Real Estate. The Company shall have delivered to GMED a schedule
identified by reference to this subparagraph listing all contracts or
commitments affecting ownership of, title to, use of, or any interest in
real estate. All such leases of real property are valid, binding, and
enforceable in accordance with their terms, and are in full force and
effect; there are no existing defaults (or events which, with notice or
lapse of time or both, would constitute a default) by the Company, and all
lessors under such leases have consented (where such consent is necessary)
to the consummation of the contemplated transactions without requiring
modification in the rights or obligations of the lessee under such leases
and all such consents are listed in the schedule provided to GMED. The
Company has delivered executed counterpart copies of all consents referred
to in the preceding sentence to GMED.
r. Chances, Dividends, Etc. Since the Balance Sheet Date there has been no
material adverse change in the condition (financial or otherwise), physical
assets, capitalization or business of the Company, no dividend or other
distribution declared, paid or made on any of the shares of the Company's
capital stock, no direct or indirect redemption, purchase or other
acquisition by the Company of any shares of its capital stock, no damage,
destruction or loss (whether or not covered by insurance) adversely
affecting the properties, business or prospects of the Company, no increase
in the rate of compensation payable or to become payable to any officer or
other employee of the Company (except as disclosed in the schedule referred
to in subparagraph (j) of the Paragraph 6 or approved in writing by GMED,
no significant labor disturbances, and no other event or condition which
materially and adversely affects the business of the Company. Since the
Balance Sheet Date, the business of the Company has been conducted
diligently and in the ordinary course; the Company has not sold or
transferred any of its property or assets except in the ordinary course of
business, and no contracts have been entered into by the Company except in
the ordinary course of business or with the written approval of GMED.
s. Tax Returns and Liabilities. The Company has filed on a timely basis all
tax returns that are or were required to be filed pursuant to the laws,
regulations or administrative requirements of each governmental body with
taxing power of it or its assets. The Company has delivered to GMED all
such Tax Returns filed since the Company's inception. The Company has paid,
all Taxes that have or may have become due pursuant to those Tax Returns,
or otherwise, or pursuant to any assessment received by the Company, except
such Taxes, if any, as are set forth in a schedule and are being contested
in good faith and as to which adequate reserves (determined in accordance
with the tax basis of accounting consistently applied) have been provided
for in the Balance Sheets and Interim Balance Sheets.
t. Breaches of Contracts, Etc. Neither the execution nor the delivery of
this Agreement by the Company, nor the performance of any of its
obligations hereunder, will result in a breach or violation of any term or
provision of or constitute a default under any indenture, mortgage or other
agreement or instrument to which the Company is a party. Neither the
execution nor the delivery of this Agreement by the Owner, nor the
performance of any of their obligations hereunder, will result in a breach
or violation of any term or provision of or constitute a default under any
indenture, mortgage, or other agreement which any of them is bound, or any
law or order, rule, regulation, writ, injunction or decree of any
government, governmental instrumentality or court having jurisdiction over
the Owner or any of their assets or rights, or results in the creation or
imposition of any lien, charge or encumbrance of any kind whatsoever on any
of such assets or rights.
u. Title to Company Ownership Interests. Owner represents and warrants for
himself and not for the others; that this Agreement has been duly executed
and delivered by the Owner and is, as to himself, a valid agreement binding
upon him in accordance with its terms; that he individually has valid title
to the shares of capital stock of the Company set forth opposite their name
in Exhibit "A" hereto, with full right, power and authority to transfer,
sell and deliver such ownership interests pursuant to this Agreement; and
that, upon delivery of his ownership interests pursuant to this Agreement,
GMED will receive valid and marketable title to such ownership interests,
free and clear of all voting or other trust arrangements, liens,
encumbrances, restrictions, and adverse claims, whether existing or
contingent.
v. Conflict of Interests. Neither the Company nor any of its affiliates (as
this term is defined in the Securities Act of 1933 [the "1933 Act"] and in
the rules and regulations promulgated by the Securities and Exchange
Commission ["SEC"] thereunder) has, either directly or indirectly, (i) an
interest in any corporation, partnership, proprietorship, association or
other person or entity which produces or sells those products and services
which are produced or sold by the Company, or (ii) a beneficial interest in
any contract or agreement to which the Company is a party or by which the
Company may be bound. For the purpose of this subparagraph, there shall be
disregarded any interest which arises solely from the ownership of less
than a five percent (5%) equity interest in a corporation which has a class
of securities regularly traded on any securities exchange or in the
over-the-counter market, or quoted on any inter dealer quotation system.
w. Disclosure. No representations or warranties by the Owner or the Company
in this Agreement and no statement contained in any document (including,
without limitation, financial statements, the schedules), certificate, or
other writing furnished or to be furnished to GMED or any of its
representatives pursuant to the provisions hereof or in connection with the
contemplated transactions, contains or will contain any untrue statement of
material fact or omits any material fact necessary to make the statements
herein or therein, in light of the circumstances under which they are made,
not misleading. Documents delivered or to be delivered to GMED pursuant to
this Agreement are or will be true and complete copies of what they purport
to be. There is no fact known to the officers, directors or employees of
the Company unknown to GMED on the Closing Date that may affect or does
affect in a materially adverse manner GMED's ability to conduct the
business of the Company substantially as conducted prior to such date.
7. Representations and Warranties of GMED. GMED represents and warrants to and
agrees with the Company as follows:
a. Organization and Standing. GMED is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, with
full corporate power to carry on its business as now being conducted and to
own and operate the property and assets now owned and operated by it, and
is duly qualified to transact business and in good standing in each
jurisdiction where the ownership of its properties or the conduct of its
business requires it to be licensed or qualified to do business.
b. Capital Stock. The authorized capital stock of GMED consists of One
billion (1,000,000,000) shares of Common Stock, $0.01 par value, One
hundred three million eight hundred ten thousand (103,810,000) shares of
Common Stock are presently issued and outstanding. All of said outstanding
shares are validly issued, fully paid and non-assessable. There are no
options, warrants or other agreements or commitments which are now or may
in the future obligate the Company to issue or purchase any shares of its
capital stock or other securities.
c. Validity of Shares. The shares of Common Stock to be delivered by GMED
pursuant to this Agreement will, when so delivered, be validly issued and
outstanding, fully paid and non-assessable.
d. Changes, Dividends, Etc. Prior to the Closing hereunder, GMED will not
split, combine or otherwise change or reclassify its outstanding Common
Stock or declare or distribute any cash or stock dividend upon such Common
Stock.
e. Authorization of Agreement. GMED's Board of Directors has duly
authorized the execution, delivery and performance of this Agreement, and
this Agreement will not result in any breach of or violate or constitute a
default under its Articles of Incorporation or By-Laws or any indenture,
mortgage or other agreement or instrument to which it is a party.
f. No Violation of Law, Etc. Neither the execution, nor the delivery of
this Agreement by GMED, nor the performance of any of its obligations
hereunder will result in a breach or violation of any law, order, rule,
regulation, writ, injunction or decree or any governmental instrumentality
or court having jurisdiction over GMED or any of its assets or rights, or
result in the creation or imposition of any lien, charge or encumbrance of
any kind whatever on any of such assets or rights.
g. Financial Statements. 'GMED" has delivered to the Company its balance
sheet as of April 30, 2001, and the related statement of shareholder
equity. The Balance Sheet has been initialed by officers of GMED and the
Company for identification. The Balance Sheet is complete, has been
prepared in accordance with the tax basis of accounting consistently
applied and fairly represents the consolidated financial position of GMED
at such date, and the results of its operations for the period therein
specified.
h. Material Changes. Since April 30, 2001, GMED has effected a 1 for 49
forward dividend of its securities, and subsequently cancelled five hundred
million (500,000,000) of its issued and outstanding shares. There has been
no other material change in the condition (financial or otherwise), assets,
liabilities, capitalization or business of GMED, which have not been
disclosed to the Company. Upon execution of this Agreement and Plan of
Exchange, the company will have zero assets and zero liabilities.
i. First Stage Working Capital. GMED has secured the working capital
necessary for Company to accomplish the first stage of its Business Plan
(See Exhibits C, L, & M).
8. Conditions and Obligations of Company and Owner. The obligations of Company
and Owner under this Agreement are of the following conditions precedent:
a. All representations and warranties of the Owner and the Company
contained herein and in any certificate or other investment delivered
pursuant to the provisions hereof, or in connection with the transactions
contemplated hereby, shall be true on the Closing Date with the same force
and effect as though such representations and warranties had been made on
the Closing Date.
b. The Owner and the Company shall have performed and complied with all of
the terms, covenants and conditions of this Agreement to be performed or
complied with by them, respectively, on or before the Closing Date.
c. The Owner of the Company shall have taken all necessary action to
authorize the execution and performance of this Agreement, and the Company
shall have delivered to GMED true and complete copies, certified by the
Owner, of Resolutions, of its Owner evidencing such action.
d. The Owner and the Company shall have delivered to GMED such certificates
dated as of the Closing Date, certifying in such detail as GMED may
reasonably request to the fulfillment of the conditions specified in this
Paragraph 8. No legend or other reference to any purported encumbrance
shall appear on any certificate. The delivery of an assignment of Owner's
ownership interest in the Company to GMED provided in Paragraph 2 will
result in GMED's immediate acquisition of record and beneficial ownership
of such ownership interest free and clear of all encumbrances (which term
shall be hereinafter defined as any security interest, mortgage, lien
charge, adverse claim or restriction of any kind, including, but not
limited to, any restriction on the use, voting, transfer, receipt of income
or other exercise of any attributes of ownership).
f. Upon request, the Company shall have delivered to GMED an opinion of its
counsel for the Owner and the Company, dated as of the Closing Date,
containing customary assumptions, exceptions and limitations, to the effect
that:
i. The Company is duly organized, validly existing and in good
standing under the laws of the State of Delaware, with full limited
liability company power and authority to enter into and perform its
obligations under this Agreement, to own and hold its properties owned
and leased and to carry on the business in which it is engaged.
ii. The execution, delivery and performance of this Agreement and the
instruments executed and delivered to GMED pursuant to this Agreement
by the Company, have been duly and validly authorized and approved (as
required by law and the terms of this Agreement) by the Owner and this
Agreement and such instruments have been duly executed and delivered
by the Company and the Owner and constitute the valid and binding
obligation of the Company and the Owner, respectively, enforceable in
accordance with their respective terms, except as limited by
bankruptcy, insolvency and other laws affecting the enforcement or
creditor's rights.
iii. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not result
in any breach or violation of any of the terms or provisions of, or
constitute a default under, the Company's Articles of Formation or
limited company agreement, or, to the knowledge of such counsel, any
term or provision of any indenture, mortgage, deed of trust, lease,
loan agreement, security agreement, or other agreement, instrument,
commitment or arrangement known to such counsel, to which the Company
or Owner is a party or by which the Company or its Owner is bound or
to which any of the Company's properties is subject.
iv. To such counsel's knowledge, Owner is the sole beneficial owner of
record of one hundred percent (100%) of the ownership interest in the
Company, and the Company has no other authorized or outstanding series
or class of ownership interest or other securities, or outstanding
options, warrants or other rights to acquire securities and/or
ownership interest of the Company.
v. Insofar as is known to such counsel, all assignments, powers and
other documents necessary to effect the transfer and delivery of the
ownership interest of the Company to GMED as provided for herein have
been duly executed and delivered by the Owner and are adequate to
transfer to GMED valid and marketable title to said shares.
vi. Such counsel has no knowledge of any litigation, proceeding or
governmental investigation or labor dispute or labor trouble, pending
or threatened against the Company, except matters specifically
mentioned in the schedule required by subparagraph (m) of Paragraph 6
above.
In rendering such opinion, such counsel may rely on certificates of public
officials and upon certificates of officers of the Company and the Owner and
upon opinions of counsel retained by the Company or the Owner in States other
than California, copies of which certificates and opinion shall be furnished to
GMED.
g. No action or proceeding by any governmental body or agency shall have
been threatened, asserted or instituted to restrain or prohibit the
carrying out of the transactions contemplated by this Agreement.
h. All proceedings and action taken in connection with the transactions
contemplated by this Agreement and all certificates, opinions, agreements,
instruments, and documents mentioned in this Paragraph 8 or incident to any
such transaction shall be reasonably satisfactory in form and substance to
GMED.
i. Company and Owner agree to transfer 100% ownership of any and all
intellectual properties, either owned or applied for, to GMED.
j. Company and Owner understand and agree that a one (1) year consulting
agreement has been finalized between GMED and Research Capital, LLC. Said
consulting agreement is attached as Exhibit "M" hereto.
The conditions contained in this Paragraph 8, except for Subsection 80), are
included herein for the benefit of GMED and, without constituting a waiver of
any of its rights hereunder, may be waived, in whole or in part, by GMED.
9. Conditions and Obligations of GMED. The obligations of GMED under this
Agreement are subject to the fulfillment, on or before the Closing Date, of the
following conditions:
a. All representations and warranties of GMED contained herein and in any
certificate or other instrument delivered pursuant to the provisions
hereof, or in connection with the transactions contemplated hereby, shall
be true on the Closing Date with the same force and effect as though such
representations and warranties had been made on the Closing Date.
b. GMED shall have performed and complied with all of the terms, covenants
and conditions of this Agreement to be performed or complied with by it on
or before the Closing Date.
c. GMED shall have delivered to the Owner a certificate of its Chairman
dated as of the Closing Date, certifying in such detail as the Owner may
reasonably request to the fulfillment of the conditions specified in this
Paragraph 9.
d. The Shares of GMED's Common Stock, $0.01 par value, which are to be
issued to the Owner in accordance with the terms hereof shall have been
listed or authorized for listing on the Exhibit "B".
e. The Board of Directors of GMED shall have taken all necessary action to
authorize the execution and performance of this Agreement, including the
delivery of shares of Common Stock of GMED to the Owner in accordance with
this Agreement, and GMED shall have delivered to the Owner true and
complete copies certified by its Chairman, of Resolutions of its Board of
Directors of Directors evidencing such action.
f. GMED shall represent the following to Owner, and at Owner's request,
GMED shall deliver the opinion of GMED's legal counsel, dated as of the
Closing Date, containing customary representations, assumptions, exceptions
and limitations, to the effect that:
i. GMED is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida, with an authorized
capitalization as set forth in subparagraph (b) of Paragraph 7 of this
Agreement, with full corporate power and authority to enter into and
perform its obligations under this Agreement, to own and hold its
properties owned and leased and to carry on the business in which it
is engaged.
ii. The Execution, delivery and performance of this Agreement by GMED
have been duly and validly authorized and approved (as required by law
and by the terms of this Agreement) by GMED's Board of Directors and
this Agreement has been duly executed and delivered by GMED and
constitutes the valid and binding obligation of GMED in accordance
with its terms, except as limited by bankruptcy, insolvency, and other
laws affecting the enforcement of creditors' rights.
iii. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not result
in any breach or violation of any of the terms or provisions of, or
constitute a default under, the Articles of Incorporation or By-Laws
of GMED or, to the knowledge of GMED, any statute, law, order, rule or
regulation of any court of governmental agency or body having
jurisdiction over GMED or any of its activities or properties or, to
the knowledge of GMED, any term or provision of any indenture,
mortgage, security agreement, or other agreement, instrument,
commitment or arrangement, to which GMED is a party or by which it is
bound or to which its property is subject.
iv. The shares of GMED to be delivered to the Owner pursuant to
Paragraph 2 hereof, have been duly authorized and upon such delivery
will be validly issued, fully paid, non-assessable and listed or
authorized for listing on the Exhibit "B".
v. A capital investment as outlined in attached Exhibit C and further
defined in attached Exhibit M hereto, has been secured by GMED and is
available to Company upon finalization of this Agreement.
g. No action or proceeding by any governmental body or agency shall have
been threatened, asserted or instituted to restrain or prohibit the
carrying out of the transactions contemplated by this Agreement.
h. All corporate and other proceedings and actions taken in connection with
the transactions contemplated hereby and all certificates, opinions,
agreements, instruments and documents mentioned in this Paragraph 9 or
incident to any such transaction shall be satisfactory in form and
substance to the Owner and their counsel.
The conditions contained in this Paragraph 9 are included herein for the benefit
of the Owner and, without constituting a waiver of any of its rights hereunder,
may be waived, in whole or in part, by the Owner.
10. Certain Covenants Prior to Closing.
a. The Owner will use his best efforts, and take such other action as may
be necessary, to fulfill all of the conditions contained in Paragraph 8
hereof and to authorize and consummate, and cause the Company to authorize
and consummate, all of the transactions herein contemplated.
b. GMED will use its best efforts, and take such other action as may be
necessary, to fulfill all of the conditions contained in Paragraph 9 hereof
and to authorize and consummate all of the transactions herein
contemplated.
c. Between the date of this Agreement and the Closing Date, the Company and
Owner shall (a) give GMED and its authorized representatives full access to
all offices, warehouses and other facilities and properties of the Company
and to the books and records of the Company (and permit GMED to make copies
thereof), (b) permit GMED to make inspections thereof, and (c) cause its
officers and its advisors (including, without limitation, its auditors,
attorneys, financial advisors and other consultants, agents and advisors)
to furnish GMED with such financial and operating data and other
information with respect to the business and properties of the Company, and
to discuss with GMED and its authorized representatives the affairs of the
Company, all as GMED may from time to time reasonably request.
d. Between the date of this Agreement and the Closing Date, the Company and
Owner shall give notice to GMED promptly upon the Company or Owner becoming
aware of (a) any inaccuracy of a representation or warranty set forth in
any schedule or (b) any event or state of facts that, if it had occurred or
existed on or prior to the date of this Agreement, would have caused any
such representation and warranty to be inaccurate, any such notice to
describe such inaccuracy, event or state of facts in reasonable detail.
e. Between the date of this Agreement and the Closing Date, GMED, the
Company and Owner shall discuss and coordinate with respect to any public
filing or announcement concerning any of the contemplated transactions.
f. GMED shall and Owner shall cause the Company to, (a) file with
applicable regulatory authorities the applications and related documents
required to be filed by them (and prosecute diligently and related
proceedings) in order to consummate the contemplated transactions and (b)
cooperate with the others as they may reasonably request in connection with
the following.
11. Survival of Representations and Warranties: Indemnification.
a. Survival. All representations, warranties and agreements contained in
this Agreement shall survive the Closing for a period expiring one (1) year
after the Closing Date, notwithstanding any investigation conducted with
respect thereto; however, a party shall have no liability with respect to a
representation and warranty, or an agreement to be performed or complied
with prior to the Closing Date, to the extent that the inaccuracy of such
representation and warranty or the failure to perform and comply with such
agreement was not intentional and was disclosed in a schedule delivered
pursuant to this Agreement.
b. Indemnification by Company and Owner. The Company and Owner, jointly and
severally, shall indemnify and hold harmless GMED, and shall reimburse GMED
for any loss, liability, claim, damage, expense (including, but not limited
to, costs of investigation and defense and reasonable attorneys' fees) or
diminution of value (collectively "Damages") arising from or in connection
with, (1) any material inaccuracy in any of the representations and
warranties of the Company or Owner in this Agreement, (2) any failure by
the Company or Owner to perform or comply with any agreement in this
Agreement, (3) any claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by any such person with the Company or any Owner
(or any person acting on their behalf) in connection with any of the
contemplated transactions.
c. Indemnification by GMED. GMED shall indemnify and hold harmless the
Company and Owner, and shall reimburse the Company and Owner for, any
Damages arising from or in connection with (1) any material inaccuracy in
any of the representations and warranties of GMED in this Agreement or any
actions or omissions (2) any failure by GMED to perform or comply with any
agreement in this Agreement, or any claim by any person for brokerage or
finder's fees or commissions or similar payments based upon any agreement
or understanding alleged to have been made by such person with GMED (or any
person acting on its behalf) in connection with any of the contemplated
transactions without having been discussed by the Company.
d. Procedure for Indemnification. Promptly after receipt by an indemnified
party of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying
party under such section, give notice to the indemnifying party of the
commencement thereof, but the failure so to notify the indemnifying party
shall not relieve it of any liability that it may have to any indemnified
party except to the extent the indemnifying party demonstrates that the
defense of such action is prejudiced thereby. In case any such action shall
be brought against an indemnified party and it shall give notice to the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, to assume the defense thereof with counsel satisfactory to such
indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party under such section for any fees of other counselor any
other expenses, in each case subsequently incurred by such indemnified
party in connection with the defense thereof, other than reasonable costs
of investigation. If an indemnifying party assumes the defense of such an
action, (a) no compromise or settlement thereof may be effected by the
indemnifying party without the indemnified party's consent, which shall not
be reasonably withheld unless (i) there is no finding or admission of any
violation of law or any violation of the rights of any person and no effect
on any other claims that may be made against the indemnified party and (b)
the indemnifying party shall have no liability with respect to any
compromise or settlement thereof effected without its consent, which shall
not be unreasonably withheld. If notice is given to an indemnifying party
of the commencement of any action and it does not, within ten (10) days
after indemnified party's notice is given, give notice to the indemnified
party of its election to assume the defense thereof, the indemnifying party
shall be bound by any determination made in such action or any compromise
or settlement thereof effected by the indemnified party. Notwithstanding
the foregoing, if an indemnified party determines in good faith that there
is a reasonable probability that an action may adversely affect it other
than as a result of monetary damages, such indemnified party may, by notice
to the indemnifying party, assume the exclusive right to defend, compromise
or settle such action, but the indemnifying party shall not be bound by any
determination of an action so defended or any compromise or settlement
thereof effected without its consent, which shall not be unreasonably
withheld.
e. After-Tax Basis. In determining the Damages suffered by any person, the
amount thereof shall be reduced by any tax benefit realized by such person
as a result of the incidence of such Damages. Any payment required by this
Paragraph 11 (for indemnification or otherwise) in respect of the Damages
suffered by any person shall be in an amount that after deducting any tax
cost incurred by the person receiving that payment equal the amount
required to be paid as determined under the applicable provisions (other
than this sentence) of this Paragraph 11. The tax benefit realized by a
person by reason of any payment or other matter shall be the amount by
which (a) the aggregate federal and state income and franchise taxes that
would have been, but for such payment or other matter, payable by such
person for the fiscal year, if any, in which such payment or other matter
is taken into account ("but-for tax") exceeds (b) the aggregate federal and
state income and franchise taxes actually payable by such person for such
fiscal year ("actual tax") and the tax cost of any payment shall be the
amount by which the actual tax exceeds but-for tax.
f. Notwithstanding anything above contained to the contrary in Paragraph
11, (i) none of the provisions of this Paragraph 11 shall apply to any
liability (whether by GMED to one or more of the Owner or by one or more
the Owner to GMED) arising out of or by virtue of the Provisions of
Paragraph 12 below or any violation of the provisions of Paragraph 12, and
(ii) the provisions of said Paragraph 12 shall survive the Closing Date.
12. Investment Representation. Owner acknowledges his understanding that the
shares of GMED's Common Stock to be delivered to the Owner pursuant to this
Agreement will not be registered pursuant to the 1933 Act and each of the Owner
further represents to and agrees with GMED as follows:
a. He is acquiring the shares of GMED's Common Stock pursuant to this
agreement for his own private personal investment account and with no
present intention of reselling or distributing such shares or any portion
thereof to others.
b. He fully comprehends that in connection with the issuance of shares of
GMED's Common Stock pursuant to this Agreement, GMED is relying to a
material degree on the representation by Owner that he can accomplish the
Company's Business Plan attached hereto as Exhibit L, and with such
realization he authorizes GMED to act as it may see fit in full reliance
hereon.
c. He agrees that none of such shares will be transferred or distributed
unless (i) they are covered by an effective Registration Statement prepared
in accordance with the 1933 Act and are distributed in a manner complying
with the 1933 Act and with the Rules and Regulations promulgated
thereunder; or (ii) they may be transferred in accordance with Rule 144 of
the Rules and Regulations pursuant to the 1933 Act (or such similar Rule as
may be applicable to such shares at the time of transfer) so long as such
transfer strictly complies with said Rule 144; or (iii) there is first
delivered to GMED the written legal opinion of legal counsel in form and
substance reasonably satisfactory to GMED's legal counselor a "no action
letter" from SEC indicating that any of the provisions of the 1933 Act and
the Rules and Regulations promulgated thereunder. In the event such legal
opinion is based upon the exemption now contained in Section 4(2) of the
1933 Act, the person acquiring shares or some portion thereof shall execute
and deliver to GMED a letter agreement complying with the 1933 Act and the
Rules and Regulations promulgated thereunder.
d. He hereby agrees that the certificate(s) representing such shares may
bear a legend, as set forth below, setting forth the restrictions upon
transfer which are contained in the foregoing subparagraph (c) and that
GMED may deliver to its transfer agents a "stop transfer order" directing
the transfer agents not to effect any transfer of such shares without
having received the permission of GMED and evidence of compliance with
applicable provisions of the 1933 Act and the terms of this Agreement.
These shares have not been registered under the U.S. Securities Act of
1933 as amended, having been acquired for investment purposes only and
not with a view to redistribute. They may not be sold or offered for
in absence of an effective registration statement as to the shares
under the Securities Act of 1933 as amended, or an opinion of counsel
satisfactory to the corporation and an exemption from the Securities
Act of 1933 as amended, is available and that such registration is not
required, or in the alternative that such shares may be sold under
Rule 144 as promulgated by the Securities and Exchange Commission of
the United States.
e. He hereby agrees to indemnify GMED against and hold it harmless from all
losses, liabilities, costs and expenses (including reasonable attorneys'
fees) which shall arise as a result of a sale or distribution by him of
such shares or any portion thereof in violation of the 1933 Act or the
terms of this Agreement.
13. Further Assurances.
a. At the request of GMED, and without further consideration, the Company
and Owner will execute and deliver such additional instruments of transfer
and will take such other action as GMED reasonably may request in order to
more effectively transfer to GMED full ownership and control of the
Company.
b. At the request of Owner, and without further consideration, GMED will
execute and deliver such additional instruments and will take such other
actions as Owner may reasonably request in order more effectively to carry
out the transaction contemplated hereby.
14. Expenses. GMED shall bear the expenses incident to the preparation,
negotiation and delivery of this Agreement and the performance of its
obligations hereunder.
15. Employees of the Company. It is understood and agreed by the parties hereto
that Company shall hire a qualified Chief Executive Officer, Chief Financial
Officer and Director of Media Relations to assist with the management and
day-to-day affairs of the Company. It is understood and agreed that Xxxxx
Xxxxxxxxx will serve as the Company's Chief Scientific Officer (CSO) and the
Company's Chief Medical Officer (CMO), and will serve as a member of the Board
of Directors of GMED. It is understood and agreed that the Company shall recruit
and hire a qualified PhD level scientist to work in conjunction with Xxxxx
Xxxxxxxxx to accomplish the Company's scientific goals as set forth in Exhibit
"L" (The "Business Plan") attached hereto and incorporated herein by this
reference. It is understood and agreed that said scientist shall replace Xxxxx
Xxxxxxxxx as the Company's CSO. Upon hiring of said CSO, Xxxxx Xxxxxxxxx shall
remain as the Company's CMO and a member of the Board of Directors of GMED.
16. Directors.
a. All seats on the Board of Directors of GMED will be made available to
qualified appointees of the Company.
b. It is understood and agreed by Company and Owner that subject to this
Agreement and to Subsection b hereof, the Board of Directors of GMED shall
be restricted to issue and restricted to authorize to issue any additional
shares of GMED stock during the initial twelve (12) months from the Closing
Date without the prior written consent of Research Capital, LLC and Owner.
c. It is understood and agreed by the parties hereto that a stock allowance
(the "Stock Allowance") consisting of one hundred million (100,000,000)
shares shall be made available to GMED's Board of Directors for issuance to
qualified executives and/or key strategic alliances of Company. Any and all
allocations from the Stock Allowance to a qualified executive and/or key
strategic alliance must be proven, prior to issuance, to be of direct
benefit to GMED.
17. Other Matters.
a. Other Agreements. Company and Owner understand and agree that any and
all dilution of the Company's securities, other than the Stock Allowance,
during the first twelve (12) months from the date hereof must be approved,
in writing, by the appropriate officer of Research Capital, LLC.
b. Amendment. This Agreement may be amended only by a written instrument
executed on behalf of GMED, the Company and the Owner.
c. Notices. Any notice or other communication required or permitted to be
given hereunder shall be deemed properly given if personally delivered or
deposited in the United States mail, registered or certified and postage
prepaid, addressed to the Company or the Owner at 0000 Xxxxxxx Xxx., Xx.
Xxxxx, XX 00000; or to GMED at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxx 00000, or at such other addresses as may from time to time be
designated by the respective parties in writing.
d. Specific Performance. The parties acknowledge that the subject matter of
this Agreement (i.e., the business and assets of the Company) is unique and
that no adequate remedy of law would be available for breach of this
Agreement. Accordingly, each party agrees that the other parties will be
entitled to an appropriate decree of specific performance or other
equitable remedies to enforce this Agreement (without any bond or other
security being required) and each party waives the defense in any action or
proceeding brought to enforce this Agreement that there exists an adequate
remedy at law.
e. Assignment. Except as specifically permitted by the terms of this
Agreement, neither this Agreement nor any right created hereby shall be
assignable by GMED, the Company or the Owner (or their respective
successors in interest) without the prior written consent of all other
parties hereto and any such attempted assignment shall be void. Nothing in
this Agreement, expressed or implied, is intended to convert upon any
person, other than the parties hereto; any rights or remedies under or by
reason of this Agreement. Notwithstanding any other provisions herein to
the contrary, the right of the Owner to receive shares of GMED's Common
Stock pursuant to Paragraph 2 hereof shall not be assignable except upon
the death of such Owner by testamentary disposition or the law of intestate
succession.
f. Paragraphs and Other Headings. Paragraphs or other headings contained in
this Agreement are for reference purposes only and shall not affect in any
way the meaning or 25 interpretation of this Agreement.
g. Choice of Law. It is the intention of the parties that the laws of the
State of Florida should govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties
of the parties.
h. No Waiver. The failure of any party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must
be in writing.
i. Severability. In the event that anyone or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable, the same shall not affect any other provisions of
this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provisions had never been contained herein.
j. Public Releases. It is understood and agreed by the parties hereto that
any and all information to be released to the public must be approved, in
writing, by GMED's Board of Directors and by Owner or by a Director of
Public Relations to be properly appointed by GMED's Board of Directors
prior to its release.
k. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Genomic Medicine, LLC GenoMed, Inc.
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxx X. Xxxxxxx
-------------------------------- --------------------------------
Xxxxx Xxxxxxxxx, its CEO Xxxxx X. Xxxxxxx, its Chairman
/s/ Xxxxx X. Xxxxx /s/ Xxxx Xxxxx, III
-------------------------------- --------------------------------
Witness Witness
E X H I B I T "A"
List of Genomic Medicine, LLC Owners
Percentage Ownership Interest of
Owner Name Genomic Medicine. LLC -
Xxxxx Xxxxxxxxx 100%
Total Ownership Interest 100%
EXHIBIT "B"
SECTION I.
Delivery of 50,000,000 shares of GMED common stock to Genomic Medicine,
LLC Owner during the initial twelve (12) months from the date of this Agreement
will be as follows:
Owners Name Number of GMED Shares
Xxxxx Xxxxxxxxx- 12,500,000 delivered at closing
12,500,000 delivered on May 6,2002
25,000,000 delivered on November 6,2002
Total Shares 50,000,000-
SECTION II.
Operation of the Portfolio of Contingent Stock Issuance
One hundred million (100,000,000) shares of GMED common stock shall be available
as a contingent stock issuance to be issued to the Owner according to the terms,
conditions and achievements set forth in Exhibit "D" attached hereto.
The shares shall be issued to the below listed Owner in the following
percentages:
Owner Name Percentage
Xxxxx Xxxxxxxxx 100%
Exhibit "C"
Section I.
Funding
GMED has secured the working capital necessary for Company to accomplish the
first stage of its Business Plan (See Exhibit L and Exhibit M). Said working
capital shall be used by Company specifically to advance the Company's
scientific and business efforts as outlined in attached Exhibit L. Working
Capital shall be paid to Company based on the following schedule. Each scheduled
payment will be made on the fifteenth (15th) day of the month. Should the
fifteenth (15th) day of the month fall on a weekend or legal holiday, payment
will be made the following business day subsequent to the weekend or holiday.
Month Payment
November, 2001 $155,000.00
December, 2001 $155,000.00
January, 2002 $205,000.00
February, 2002 $ 55,000.00
March, 2002 $ 55,000.00
April, 2002 $100,000.00
May, 2002 $ 25,000.00
June, 2002 $ 50,000.00
July, 2002 $ 50,000.00
August, 2002 $ 50,000.00
September, 2002 $ 50,000.00
October, 2002 $ 50,000.00
Genomic Medicine, LLC has been provided twenty-five thousand dollars ($25,000)
funding prior to closing. One-fifth (1/5) or five thousand dollars ($5,000)
shall be deducted from each of the first five payments listed above to account
for such funding.
Additional Funding
An additional $5,000,000 will be raised through a post-merger Private
Placement. Said Private Placement will be initiated by Research Capital,
LLC within one hundred twenty (120) days from the date of this Agreement.
Should a market for the Company's securities not develop within this
timeframe, the Private Placement may be delayed until a reasonable market
for a Private Placement Offering develops. Research Capital, LLC has
guaranteed that it will provide $1,000,000 of the Private Placement funds
directly from RC and/or its affiliated investors.
Exhibit "D"
Section I.
Performance Based Contingent Stock Issuance
The Owner shall be entitled to issuance of additional stock based upon the
performance and achievement of the Company. Said contingent issuance is
understood and agreed to be as follows:
One hundred million (100,000,000) shares of stock will be available to be issued
to the Owner for a period of five (5) years commencing on the date of the
consummation of the transactions contemplated by the Agreement and Plan of
Exchange. All or a portion of the above stated shares of stock will be issued to
the Owner based upon the achievement of any one of the following four (4)
performance criteria. It is understood and agreed that only one (1) performance
formula will be used to determine the amount of the potential issuance, i.e.,
the four (4) performance criteria cannot be combined to determine the issuance.
Once the Owner has elected to receive stock under one performance criterion,
such election shall be irrevocable, and shares issued hereunder may be issued
only under that performance criterion.
1. Company must either achieve gross profits as follows:
One (1) share of stock shall be available to Company for every one cent (1~)
worth of gross profit produced by the Company. This method shall be referred to
as the gross profit method.
OR
2. Company becomes a listed and quoted company with either the NASDAQ Small Cap
or the NASDAQ National Market Systems Exchange.
OR
3. Company is purchased or acquired by a larger biotech firm for a minimum of
one hundred million dollars ($100,000,000) in value, i.e., cash and stock.
OR
4. Company may be appraised from time to time, not more than five (5) times
during the contingent issuance period, by a mutually acceptable independent
firm. Valuation of Company by said firm must meet or exceed the dollar levels
outlined below in order for cross-referenced issuance to be effected. Contingent
issuance below is the aggregate amount issued hereunder based on appraisals
conducted to the date of issuance.
Company Valuation Earn-out Shares
$10,000,000 10,000,000 Shares
$20,000,000 20,000,000 Shares
$30,000,000 30,000,000 Shares
$40,000,000 40,000,000 Shares
$50,000,000 50,000,000 Shares
$60,000,000 60,000,000 Shares
$70,000,000 70,000,000 Shares
$80,000,000 80,000,000 Shares
$90,000,000 90,000,000 Shares
$100,000,000 100,000,000 Shares
Section II.
Employee Incentives
It is agreed that ten million (10,000,000) shares of stock shall be available
for use by Company as bonus shares for employees. Any and all employee bonus
programs must be approved, in writing, by the Board of Directors prior to being
offered to any potential or existing employee.
Exhibit "E"
Indebtedness Schedule
Exhibit "F"
Balance Sheet
Exhibit "G"
Material Contracts
Exhibit "H"
Intellectual Properties
The Company and the Owner transfer any and all rights and ownerships to the
following Intellectual properties:
I. A Method to find disease-associated SNPs and genes. Filing date
05/01/01. Application Number 60/287,376
I. Finding disease-associated SNPs and genes: How to start. Filing date
06/04/01. Application Number 60/295,095
I. A Method to delay the progression of a large number of common diseases.
Filing date 08/06/01. Application Number 60/310,064
I. A Method to avoid dialysis in oliguric acute renal failure. Filing date
08/08/01. Application Number 60/310,686
I. A Method to treat pulmonary hypoplasia in the newborn. Filing date
08/13/01. Application Number 60/311,663
The above list includes but is not limited to any and all patents owned by
Company and/or Owner on the Closing Date.
Exhibit "I"
Assets
Exhibit "J"
Insurance
Exhibit "K"
Employees
Exhibit "L"
Business Plan
Exhibit "M"
12 month Budget for GenoMed, Inc.
X. X. Xxxxxxxxx, MD; XXX & XXX Xxxxxxxx 0, 0000
Xxxxxxx: Chip lab In thousands
Xxxxx Biotechnology, Ltd 20.000 SNPs x 375 samples (Q2 $0.20 $1,500
SUBTOTAL $1,500
Data analysis (Xxxxx Xxxxxxxx, Xxxxxxx Medical College)
Computer $5
Salary $35
Travel (Xxxxx Xxxxxxxx to St Louis x 4, @$2.5K: $lK/day
honorarium + Airfare and expenses) $10
SUBTOTAL $50
St. Louis: Coordination, Business Headquarters, Patent Writing
Salaries:
Secretary $40
CSO/CMO (XX Xxxxxxxxx) $135
CEO (Xxxxx Xxxxx) $125
Travel:
Presentations to Pharma & VC's (DWM; 2/mo. @ $lK) $24
Presentations to Pharma & VC's (CEO; 3/mo. @ $1) $36
Talks at meetings (DWM) 3 @$lK $3
To Moscow (@$3K) & Estonia (@$2K more) every 2 mos, ie 6 x $5K $30
Sample prep (Moscow lab):
Jouan centrifuge (uncooled) $10
Qiagen maxi kits @$10 $6
Plasticware, reagents $2
Tech: 2 hr/10 samples-->120 hr @$20/hr $2.4
FedEx to Xxxxx (Estonia) $0.5
Office Expenses:
Cell phone x 3 @$1.5K $4.5
Rent @ $250/mo $3
Telephone @ $250/mo $3
Journals, memberships $6
Malpractice $12
Postage @ $150/mo (overnight Business Plans) $1.8
FAX (eFAX) x 3 (@ $40/mo) $1.5
Misc. (pens, paper, clips, cartridge toner, etc) @$100/mo. $1.2
SUB $446.9
Sample Acquisition & Preparation
Moscow: 1,200 samples @ $60 (includes salaries) $72
Korea: 1,200 samples @ $75 $90
Miami (Hispanic): 1,200 samples @ $40 $48
12 month Budget/or GenoMed, Inc.
X. X. Xxxxxxxxx, MD; CSO & CMO November 9, 2001
ADA(GENNID: NIDDM samples): 200 @ $100 $20
SUBTOTAL $230
Legal Expenses
Corporate (strategic alliances, contracts, etc.) $50
Patents: assume 1 bundled Final PCT for 2 provisionals filed
4/30101 and 5/31/01, wi worldwide coverage $50
1 bundled Provisional for 10 disease-genes for 1 disease, wi
Conversion to Final PCT wi worldwide coverage $250
SUBTOTAL $350
GRAND TOTAL (in $ thousands) for Proof of Concept, Phase I $2,576.9
Scientific Plan (with Timeline)
Month Activity Cost (in thousands)
Nov. & Dec., 2001 1. Sign chip company (
airfare for visits) $10
20K SNP chip--Xxxxx?
lOOK SNP chip--Xxxxxx?
2. Order samples from:
Russia (DWCC)
Italy (Hippocrates)
Miami (Xxxxxx)--still requires visit
Korea (MyDNA)
Terms: 50% up front, 50% at completion $125 (total)
3. Order OMIM and lOOK SNPs from
Sequence Sciences, LLC (Xxx Xxxx and
Xxxx Xxxxxx)
OMIM (20K SNPs) $15
lOOK SNPs $25
4. Order GENNID samples $20
Jan., 2002 Send 20K SNPs to chip co. $250
Down payment to develop chip
Feb., 2002
March, 2002
April, 2002 Chip development
May-June, 2002 Run chip $1,250
July-Aug., 2002 Analyze data $100
Sept.-Oct., 2002 1. Write and file provisional patents $100
2. Accept samples $125
TOTAL FOR SCIENTIFIC EXPENSES (in $ thousands) $2,020
(all outsourced)
Consulting Agreement
