Exhibit 4.3
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
EMBRYO DEVELOPMENT, INC. ("Seller")
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Buyer")
This STOCK PURCHASE AGREEMENT (the "Agreement"), made as of September 21,
2004, by and between Embryo Development, Inc., a Delaware corporation
("Seller"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Buyer"), recites and provides as follows:
RECITALS
WHEREAS, Buyer is the Chief Executive Officer of Seller with a significant
interest in supporting decisions of Seller in connection with it raising
additional capitalization and entering into certain acquisition transactions;
and
WHEREAS, Seller is party to an Investment Banking Agreement with ▇▇▇▇▇
Securities Corp. ("SSC") dated September 9, 2004 (the "IBA");
WHEREAS, The IBA provides in the Term Sheet for the initial tranche of financing
in the amount of $200,000 that, among other obligations, Buyer shall exchange
$52,250 of the approximately $72,000 owed to Buyer by the Company for 5,250,000
shares of Common Stock at a conversion rate of $0.01 per share. This conversion
rate is the same as the rate for mandatory conversion of the securities being
sold as part of the first $200,000 being delivered on behalf of SSC and which
SSC has stated is fair and reasonable..
WHEREAS, Seller desires to sell the Shares to Buyer;
NOW, THEREFORE, in consideration of the promises and agreements set forth in
this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
ARTICLE 1: DEFINITIONS: When used in this Agreement, the following terms shall
have the meanings specified:
Section 1.1 Agreement. shall mean this Stock Purchase Agreement.
Section 1.2 Buyer. shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
Section 1.3 Closing. shall mean the finalization of the transaction
contemplated hereby which shall be at the offices of Seller, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ contemporaneously with the
execution and delivery of this agreement.
Section 1.4 Common Stock. shall mean the shares of common stock of Seller.
Section 1.5 Governmental Authority. shall mean any federal, state, local,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or any court, in each case having
jurisdiction of the applicable matter and whether of the United States
or another country.
Section 1.6 Law. shall mean any federal, state, local, foreign or other law
or treaty or governmental requirement of any kind, and the rules,
regulations and orders promulgated thereunder.
Section 1.7 Purchase Price. shall mean $52,500 represented by Buyer
exchanging and converting that amount of the obligations of Company to
Buyer.
Section 1.8 Required Consents. shall mean all consents required from
Governmental Authorities, self-regulatory organizations, including the
NASD, any stock exchange or other regulatory body that are necessary,
desirable or required in order to give effect to the transactions
contemplated herein.
Section 1.9 SEC. shall mean the U.S. Securities and Exchange Commission.
Section 1.10 Securities Act. shall mean the US Securities Act of 1933, as
amended.
Section 1.11 Shares Purchased. shall mean 5,250,000 shares of the Common
Stock.
ARTICLE 2: PURCHASE AND SALE
Section 2.1 Sale and Purchase of the Shares. At the Closing, upon the terms
and subject to the conditions of this Agreement, and in consideration
of the Purchase Price paid by Buyer to Seller, Seller shall sell,
transfer, convey and deliver to Buyer, and Buyer shall purchase from
Seller, all of the Shares Purchased, free and clear of all liens,
claims and encumbrances. Seller shall deliver or cause to be delivered
to Buyer one or more stock certificates representing the Shares at the
earliest reasonable time, but ownership shall be deemed transferred at
the closing.
Section 2.2 Payment of Purchase Price. At the Closing, Buyer shall pay to
Seller the Purchase Price by reducing the obligations of Company to
Buyer by the amount of the Purchase Price which shall be deemed
exchanged as of the Closing.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and
warrants to Buyer that:
Section 3.1 Organization of Seller. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. Seller has full corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby.
Section 3.2 Authorization; Enforceability. This Agreement is the valid and
binding obligation of Seller, enforceable against Seller in accordance
with their respective terms, except as such enforceability may be
limited by (a)bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the rights of creditors generally and
(b)principles of equity, whether considered at law or in equity.
Seller has the right, power, authority and capacity to execute and
deliver, and to perform its obligations under, this Agreement. No
further corporate action is required with respect to the consummation
of the transactions contemplated hereby.
Section 3.3 No Consents. Seller represents that it believes no Required
Consents, consent of any other person, and that no notice to, filing
or registration with, or consent, approval or authorization of, any
court or Governmental Authority, regulatory or self-regulatory agency
is necessary or is required to be made or obtained by Seller, in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
Section 3.4 The Shares Purchased. Upon payment of the Purchase Price by
Buyer to Seller and Closing of the sale of the Shares Purchased, each
as contemplated hereby, the Shares Purchased shall be duly and validly
issued, fully-paid and non- assessable.
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF BUYER: Buyer hereby represents and
warrants to Seller that:
Section 4.1 Accredited Investor. The Buyer is an "accredited investor"
within the meaning of Rule 501 of Regulation D of the Securities and
Exchange Commission (the "SEC"), as presently in effect.
Section 4.2 Authorization; Enforceability. This Agreement is, and the other
documents and instruments required hereby to which Buyer is a party
will be, when executed and delivered by Buyer, the valid and binding
obligation of Buyer, enforceable against Buyer, in accordance with
their respective terms, except as such enforceability may be limited
by (a)bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the rights of creditors generally and (b)principles of
equity, whether considered at law or in equity. Buyer has the absolute
and unrestricted right, power, authority and capacity to execute and
deliver, and to perform its obligations under, this Agreement and the
other documents and instruments required hereby to which Buyer is a
party.
Section 4.3 No Violation or Conflict. The execution, delivery and
performance by Buyer of this Agreement and all of the other documents
and instruments required hereby to which Buyer is a party do not and
will not conflict with or violate (a)the charter or bylaws of Buyer,
(b) any Law, rule, regulation, judgment, order or decree binding on
Buyer or (c) any contract or agreement to which Buyer is a party or by
which Buyer is bound.
Section 4.4 Consents. No consent of any other person, and no notice to,
filing or registration with, or consent, approval or authorization of,
any court or Governmental Authority, regulatory or self-regulatory
agency is necessary or is required to be made or obtained by Buyer in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
Section 4.5 Restricted Securities
Section 4.5.1 Buyer acknowledges and agrees that the Shares Purchased
are "restricted" shares under the Securities Act and such Shares
are considered Common Stock of the corporation with voting rights
and such voting rights have been empowered under the Bylaws of
the corporation.
Section 4.5.2 Buyer is acquiring the Shares Purchased, for its own
account for investment only and not with a view toward, or for
resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under
the Securities Act;
Section 4.5.3 Seller has furnished the Buyer with all materials
relating to the business, finances and operations of Seller and
information Buyer deems material to making an informed investment
decision regarding the purchase of the Shares Purchased which
have been requested by Buyer.
Section 4.5.4 Buyer understands that (i) the Shares Purchased have not
been and are not being registered under the Securities Act or any
state securities laws, and may not be offered for sale, sold,
transferred, pledged, assigned or otherwise hypothecated unless
(A) subsequently registered under the Securities Act and
applicable state securities laws, or (B) the Buyer shall have
delivered to Seller an opinion of counsel, in form acceptable to
such counsel, to the effect that such securities may be sold,
transferred, pledged, assigned or otherwise hypothecated pursuant
to an exemption from such registration requirements; (ii) any
sale of such securities made in reliance on Rule 144 under the
Securities Act (or a successor rule thereto) ("Rule 144") may be
made only in accordance with the terms of Rule 144 and further,
if Rule 144 is not applicable, any resale of such securities
under circumstances in which the seller (or the person through
whom the sale is made) may be deemed to be an underwriter (as
that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or
the rules and regulations of the SEC there under; and (iii)
neither Seller nor any other person is under any obligation to
register such securities under the Securities Act or any state
securities laws or to comply with the terms and conditions of any
exemption thereunder. Seller reserves the right to place stop
transfer instructions against the Shares Purchased and stock
certificates evidencing such Shares Purchased.
Section 4.5.5 Buyer understands that the certificates or other
instruments representing the Shares Purchased shall bear a
restrictive legend in substantially the following form (and a
stop transfer order may be placed against transfer of such stock
certificates):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN
THIS CERTIFICATE. THE SECURITIES REPRESENTED HEREBY MAY NOT BE SOLD,
TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL,
REASONABLY ACCEPTABLE TO COUNSEL FOR THE COMPANY, TO THE EFFECT THAT
THE PROPOSED SALE, TRANSFER, OR DISPOSITION MAY BE EFFECTUATED WITHOUT
REGISTRATION UNDER THE ACT."
Section 4.5.6 Buyer understands and acknowledges that at the time of
execution of this agreement and the contemplated Closing, Buyer
may be deemed an "affiliate" of the Company for purposes of
Rule144.
ARTICLE 5: NO SURVIVAL; ADDITIONAL INSTRUMENTS
Section 5.1 No Survival. Except those representations and warranties that
expressly apply following the Closing, none of the representations and
warranties of either party contained herein shall survive the Closing.
Section 5.2 Additional Instruments. At any time and from time to time after
the Closing, at either party's request and without further
consideration, Seller and Buyer, shall execute and deliver such other
instruments of sale, transfer, conveyance, assignment and confirmation
and take such other action as Seller and Buyer may reasonably deem
necessary or desirable in order to more effectively consummate the
transactions contemplated herein.
ARTICLE 6: MISCELLANEOUS
Section 6.1 Entire Agreement; Amendment; Waiver. This Agreement and the
documents referred to herein and to be delivered pursuant hereto
constitute the entire agreement between the parties pertaining to the
subject matter hereof and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions of the
parties, whether oral or written. There are no warranties,
representations or other agreements between the parties in connection
with the subject matter hereof, except as specifically set forth
herein. No amendment, supplement, modification or termination of this
Agreement shall be binding unless executed in writing by the party to
be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision
of this Agreement, whether or not similar, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
Section 6.2 Expenses. Each of the parties hereto shall pay the fees and
expenses of their respective counsel, accountants and other experts
and the other expenses incident to the negotiation and preparation of
this Agreement and consummation of the transactions contemplated
hereby.
Section 6.3 Governing Law; Consent to Jurisdiction. This Agreement shall be
construed and interpreted according to the law of the State of New
York, without regard to the conflicts of law rules thereof. Each of
the parties hereto, in respect of itself and its properties, agrees to
be subject to (and hereby irrevocably submits to) the nonexclusive
jurisdiction of any United States federal or New York state court
sitting in New York, New York, in respect of any suit, action or
proceeding arising out of or relating to this Agreement or the
transactions contemplated herein, and irrevocably agrees that all
claims in respect of any such suit, action or proceeding may be heard
and determined in any such court. Each of the parties hereto
irrevocably waives, to the fullest extent it may effectively do so
under applicable Law, any objection to the laying of the venue of any
such suit, action or proceeding brought in any such court and any
claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Either party hereto
may make service on the other party by sending or delivering a copy of
the process to the party to be served at the address and in the manner
provided for the giving of notices herein. Nothing in this Section,
however, shall affect the right of any party to bring any action or
proceeding arising out of or relating to this Agreement in any other
court or to serve legal process in any other manner permitted by Law
or in equity.
Section 6.4 Assignment. This Agreement and each party's respective rights
hereunder may not be assigned, by operation of Law or otherwise,
without the prior written consent of the other party. This Agreement
shall be binding upon and inure solely to the benefit of the parties
hereto and their successors and permitted assigns.
Section 6.5 Notices. All notices, requests, claims, demands, disclosures
and other communications required or permitted by this Agreement shall
be in writing and shall be deemed to have been given at the earlier of
the date (a) when delivered personally, by messenger or by overnight
delivery service by a recognized commercial carrier to an officer of
the other party, (b) five days after being mailed by registered or
certified United States mail, postage prepaid, return receipt
requested, or (c) when received via facsimile or electronic mail
(confirmed by telephone in each case), in all cases addressed to the
person for whom it is intended at the address provided by the parties
or to such other address as a party shall have designated by notice in
writing to the other party in the manner provided by this Section.
Section 6.6 Counterparts/Facsimile Signatures. This Agreement may be
executed in several counterparts, each of which shall be deemed an
original, but such counterparts shall together constitute but one and
the same Agreement. The execution of this Agreement by any of the
parties may be evidenced by way of a facsimile transmission of such
party's signature, or a photocopy of such facsimile transmission, and
such facsimile signature shall be deemed to constitute the original
signature of such party hereto.
Section 6.7 Interpretation. Unless the context requires otherwise, all
words used in this Agreement in the singular number shall extend to
and include the plural, all words in the plural number shall extend to
and include the singular and all words in any gender shall extend to
and include all genders. All references to contracts, agreements,
leases or other understandings or arrangements shall refer to oral as
well as written matters. Article and section headings in this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof
Section 6.8 Severability. If any provision, clause or part of this
Agreement, or the application thereof under certain circumstances, is
held invalid or unenforceable by any court of competent jurisdiction,
the remainder of this Agreement, or the application of such provision,
clause or part under other circumstances, shall not be affected
thereby and shall remain in full force and effect.
Section 6.9 No Third Party Rights. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any person other than the
parties to this Agreement and their successors and permitted assigns
any rights, benefits or remedies of any nature whatsoever under, or by
reason of, this Agreement. No third party is entitled to rely on any
of the representations, warranties and agreements contained in this
Agreement. Buyer and Seller assume no liability to any third party
because of any reliance on the representations, warranties and
agreements of Buyer or Seller contained in this Agreement.
Section 6.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of
this Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or in equity.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed
in its name by a duly authorized officer as of the day and year first above
written.
EMBRYO DEVELOPMENT, INC.
By:_________________________________ _______________________________________
Chairman and Chief Executive Officer ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇