EXHIBIT 10.4
THIS DEBT SETTELEMENT AGREEMENT AND PUT OPTION made the 19th day of November,
2002.
BETWEEN:
KYTO BIOPHARMAN, INC. (the "Corporation") a corporation incorporated
under the laws of the State of Florida and previously known as B.
Twelve, Inc.
OF THE FIRST PART
AND
NEW YORK UNIVERSITY (the "Creditor") a New York Education Corporation
OF THE SECOND PART
WHEREAS the Corporation in indebted to the Creditor in the aggregate amount of
U.S. $102,780 as of the date hereof (the "Debt") pursuant to the terms of a
Collaborative Research Agreement dated November 1, 1999 (the "CRA"), between the
Corporation and the Creditor;
AND WHEREAS the parties hereto wish to settle the Debt by having the Corporation
issue common shares from treasury to the Creditor.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
the mutual promises and agreements herein contained (the receipt and sufficiency
of which are hereby acknowledged by each of the parties), the parties hereto
covenant and agree as follows:
1. Subject to regulatory approval, the Creditor hereby agrees to convert the
debt by subscribing for 113,058 common shares at a price of $1.00 per share
as represented by share certificate number 1236 (the "Settlement Shares").
In consideration for the Settlement Shares, the Creditor shall remise,
release and forever discharge the Corporation from the Corporation's Debt,
said release and discharge to be in the form annexed hereto as Schedule
"A," (the "Release") provided, however, that said Release is applicable
only to the Debt and shall not apply with respect to any other obligations
of the Corporation to the Creditor or claims the Creditor may now or
hereafter have against the Corporation whether such claim or obligation
arises under the terms of the CRA or otherwise.
2. Subject to regulatory approval, the Corporation hereby agrees that in
consideration of the above Release is shall allot and issue the Settlement
Shares to the Creditor, said Settlement Shares to be issued at a paid up
capital price of U.S. $1.00 per share. The Creditor is not obligated to
make any further payment for the Settlement Shares, provided, however, that
the Creditor executes the Release. The Settlement Shares are to be issued
under section 4(2) of the Securities Act of 1933, as amended, or under any
other exemption from the registration requirements which may be available
to the Corporation. As a result, the Settlement Shares are restricted and
cannot be sold or otherwise transferred by the Creditor in the absence of
registration of the Settlement Shares by the Corporation or an available
exemption from registration under the Securities Act of 1933, as amended.
3. Subject to regulatory approval, the Corporation hereby agrees to grant to
the Creditor the right to sell the Settlement Shares back to the
Corporation (the "Put Option") on the terms and conditions set out below:
(a) Purchase of Shares. The Corporation hereby irrevocably agrees to
purchase from the Creditor up to 113,058 Settlement Shares at a price
of U.S. $1.00 per Share (the "Option Price") upon notice ("Notice") in
the form attached hereto as Schedule "B" from the Creditor of its
intention to exercise its Put Option hereunder provided that such
Notice is given to the Corporation by the Creditor during the period
commencing on the date which is three (3) years from the date of this
Agreement and ending 30 days thereafter (the "Exercise Period"). The
Corporation shall be obligated under the terms of the Put Option to
purchase only the Settlement Shares as represented by share
certificate Number 1236 and any shares obtained by the Creditor as a
result of a stock dividend or stock split that are traceable to the
Settlement Shares and held by the Creditor.
(b) Payment of Proceeds of Sale. Upon receiving Notice, the Corporation
shall, within 90 days from the date of such Notice, make payment of
the Option Price in a form and manner instructed by the Creditor.
(c) Adjustments. In the event of a split or reverse split/consolidation of
the issued and outstanding common shares of the Corporation, the
number and Option Price of the Settlement Shares specified in this
Agreement shall be adjusted accordingly.
4. The Corporation shall use its best efforts to register the Shares with the
United Stated Securities and Exchange Commission ("SEC"), under the
Securities Act of 1933 (United States) as amended (the "Registration")
within three (3) years from the date of this Agreement. In connection with
the Registration, the Corporation shall:
(a) prepare and file a registration statement or similar document (a
"Registration Statement"), or amend and re-file the Corporation's SB-2
Registration Statement Filed with the SEC on July 30, 2002, in respect
of the Shares;
(b) prepare and file with the SEC such amendments and supplements to such
Registration Statement used in connection therewith as may be
necessary to keep such Registration Statement effective and to comply
with the provisions of the Securities Act of 1933, as amended, in
respect of the sale or other disposition of all the Shares covered by
such Registration Statement until the earlier of such time as all of
such Shares been disposed of or the expiration of one year.
(c) furnish to the Creditor such number of copies of the Registration
Statement in conformity with the requirements of the Securities Act of
1933, as amended and each amendment or supplement thereto, together
with such other documents as the Creditor may reasonably request;
(d) provide and cause to be maintained a transfer agent and registrar for
the Shares covered by the Registration Statement from and after a date
not later than the effective date of such Registration Statement; and
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(e) during the period when the Registration Statement is required to be
effective, notify the Creditor of the occurrence of any event, the
result of which will cause the prospectus included in the Registration
Statement to contain an untrue statement of a material fact or to omit
to state any material fact required to be stated therein or must be
disclosed to make the statements therein not misleading, and prepare a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Shares, such prospectus will not
contain an untrue statement of a material fact of omit to state any
material fact requires to be stated therein or necessary to make the
statements therein not misleading.
The Corporation shall bear all expenses arising or incurred in connection with
any of the transactions contemplated by this section, including without
limitation: (a) all expenses in respect of filing with the SEC, OTC/BB, any
securities exchange or the National Association of Securities Dealers, Inc.; (b)
registration fees; (c) printing expenses; (d) accounting and legal fees and
expenses (but excluding the fees and expenses of any accountants or legal
counsel engaged by the Creditor); (e) expenses of any special audits or comfort
letters incidental to or required by the Registration; and (f) expenses in
respect of complying with securities with securities laws of any jurisdiction in
connection with the Registration.
5. It is further acknowledged by the parties that the participation of the
Parties hereto is voluntary.
6. The parties hereto agree that the covenants contained herein shall be
binding upon their respective heirs, executors, administrators and assigns.
7. This Agreement shall be governed by an dconstrued in accordance with the
laws of the State of New York and the federal laws of the United States of
America applicable therein and each of the Creditor and the Corporation do
agree to submit to the jurisdiction of the courts of the State of New York.
8. This Agreement and the schedules annexed hereto supersede all prior
negotiations, undertakings and agreements between the parties solely with
respect to the Devt and the issuance of the Settlement Shares, and this
Agreement and its schedules constitute the entire agreement of the parties
respecting the matters herein contained. Each of the Creditor and the
Corporation acknowledge and agree that they will continue to engage in
ongoing research initiatives with each other, whether under the terms of
the CRA or pursuant to any other agreement to be entered into by the
parties.
9. No amendment, modification, alteration, or waiver of the terms of this
Agreement shall be binding unless made in writing and executed by the
parties hereto or their successors or assigns.
10. This Agreement may be executed by the parties hereto in one or more
counterparts by original or facsimile signature, each of which when so
executed shall be deemed an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF this Agreement has been executed the parties hereto as of the
day and year first above written.
KYTO BIOPHARMA, INC. NEW YORK UNIVERSITY
Per: /s/ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇ Per: /s/
------------------------------ -----------------------------
▇▇▇▇-▇▇▇ ▇▇▇▇▇▇, A.S.O
President & C.E.O.
I have authority to bind I have authority to bind the
the corporation. University.
TO: KYTO BIOPHARMA, INC. (THE "CORPORATION") (PREVIOUSLY KNOWN AS B TWELVE,
INC.)
AND TO: THE DIRECTORS OF THE CORPORATION
FROM: NEW YORK UNIVERSITY
IN CONSIDERATION of the issuance of 113,058 common shares in the capital stock
of KYTO BIOPHARMA, INC., (the "Corporation"), as represented by share
certificate number 1236, to the undersigned in accordance with a debt settlement
agreement dated as of the date hereof, between the Corporation and NEW YORK
UNIVERSITY, the undersigned hereby remises, releases and forever discharges the
Corporation from its obligation to pay a debt of $102,780 owed to NEW YORK
UNIVERSITY by the Corporation (The "Debt"), provided, however, that this Release
is applicable only to the Debt and shall not apply with respect to any other
obligations of the Corporation to the Creditor or claims the Creditor may now or
hereafter have against the Corporation whether such claim or obligation arises
under terms of the Collaborative Research Agreement dated November 1, 1999
between the Corporation and New York University, or otherwise.
DATED this 21st day of November, 2002.
NEW YORK UNIVERSITY
PER:
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I have authority to bind the University.
APPENDIX "B"
ELECTION TO EXERCISE PUT OPTION
TO: KYTO BIOPHARMA, INC. (THE "CORPORATION")
The undersigned option holder hereby irrevocably elects to exercise its PUT
OPTOPN to sell common shares (the "Settlement Shares") granted by the
Corporation pursuant to a Debt Settlement Agreement dated November 19, 2002 for
the number of common shares of the Corporation (or other property or securities
subject thereto) as set forth below:
A. Number of Settlement Shares to be Sold to the
Corporation (max 113,058): -----
B. Option Exercise Price (per Common Share): $1.00
Aggregate Purchase Price: $_____ and hereby tenders _____ share
certificate(s) representing ____ common shares in the capital stock of the
Corporation which share certificate(s) has been endorsed for transfer.
DATED THIS ____ DAY OF ________________, 2005.
NEW YORK UNIVERSITY
__________________________________
Signature
__________________________________
Name and Title of Signatory (please print)