Exhibit 10.19
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made this 8th day
of November, 2004, by and between GeneThera, Inc. ("Seller") with an address at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and G. Gekko Enterprises
("Purchaser") with an address at Edificio Colon, Piso 8 Oficina ▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇.
R E C I T A L S:
Purchaser desires to purchase 175,000 shares of the Common Stock (the
"Shares") from Seller pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
of the parties, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. PURCHASE AND SALE OF COMMON STOCK.
a. Purchase Price. The Purchaser hereby agrees to purchase the
Shares for $1.4285 per share for an aggregate purchase price of $250,000 (the
"Purchase Price"). The Shares shall be issued in the name of G. Gekko
Enterprises.
b. Form of Payment. On the Closing Date (as defined below),
(i) the Purchaser shall pay the purchase price for the Common Stock to be
transferred and sold to it at the closing.
c. Closing Date. The date and time of the transaction pursuant
to this Agreement (the "Closing Date") shall be the date the money is received
by Seller
2. PURCHASER' REPRESENTATIONS AND WARRANTIES. The Purchaser
represents and warrants to the Seller solely as to such Purchaser that:
a. Investment Purpose. As of the date hereof, the Purchaser is
purchasing the Common Stock for its own account.
b. Accredited Investor Status. The Purchaser is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D (an "Accredited
Investor").
c. Authorization; Enforcement. This Agreement has been duly
and validly authorized. This Agreement has been duly executed and delivered on
behalf of the Purchaser, and this Agreement constitutes a valid and binding
agreement of the Purchaser enforceable in accordance with their terms.
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3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Purchaser that:
a. Residency. The Seller is a Corporation, with full power and
authority to enter into this Agreement.
b. Authorization; Enforcement. (i) The Seller has all
requisite power and authority to enter into and perform this Agreement and to
consummate the transactions contemplated hereby and thereby and to transfer the
Shares, in accordance with the terms hereof and thereof, (ii) the execution and
delivery of this Agreement by the Seller and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized and no
further consent or authorization of the Seller is required, (iii) this Agreement
has been duly executed and delivered by the Seller by its authorized
representative, and such authorized representative is the true and official
representative with authority to sign this Agreement and the other documents
executed in connection herewith and bind the Seller accordingly, and (iv) this
Agreement constitutes, and upon execution and delivery by the Seller of the
Common Stock, each of such instruments will constitute, a legal, valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms.
c. Transfer of Shares. The Shares are duly authorized for
transfer and will be validly transferred, fully paid and non-assessable, and
free from all taxes, liens, claims and encumbrances with respect to the transfer
thereof. The represents and warrants that the sale and re-sale of the Shares
have been registered under the 1933 Act and any applicable state securities
laws, and the Shares may be freely sold or transferred.
d. Ownership. The Shares are held and owned, beneficially and
of record, by Seller free and clear of all liens and Seller is free to sell the
Shares to Purchaser. Seller has the sole power and authority to sell the Shares.
e. Governmental Authorizations. Seller is not required to
obtain authorization, approval, consent, or order of, or make a registration or
filing, with the SEC, any court or other governmental body in connection with
the execution and delivery by Seller of this Agreement and the consummation by
Seller of the transactions contemplated hereby.
f. No Misrepresentations. None of the information contained in
the representations and warranties of Seller set forth in this Agreement
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained herein not misleading.
g. No Conflicts. The execution, delivery and performance of
this Agreement by the Seller and the consummation by the Seller of the
transactions contemplated hereby and thereby will not (i) conflict with or
result in a violation of or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which with notice or lapse of
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time or both could become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture, patent, patent license or instrument to which the Seller is a party,
or (ii) result in a violation of any law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations and
regulations of any self-regulatory organizations to which the Seller is subject)
applicable to the Seller or by which any property or asset of the Seller is
bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect).
h. SEC Documents. The Seller has filed all reports, schedules,
forms, statements and other documents required to be filed by him.
i. Disclosure. No event or circumstance has occurred or exists
with respect to the Seller or their business, properties, prospects, operations
or financial conditions, which, under applicable law, rule or regulation,
requires public disclosure or announcement by the Seller but which has not been
so publicly announced or disclosed.
j. No Brokers. The Seller has taken no action which would give
rise to any claim by any person for brokerage commissions, transaction fees or
similar payments relating to this Agreement or the transactions contemplated
hereby.
4. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law. THIS AGREEMENT SHALL BE ENFORCED, GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT
TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN NEW
YORK, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE
AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE
THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
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PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER
THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING
ATTORNEYS' FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH
DISPUTE.
b. Counterparts; Signatures by Facsimile. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered
to the other party. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
c. Headings. The headings of this Agreement are for
convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.
d. Severability. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
hereof.
e. Entire Agreement; Amendments. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Seller nor the Buyer makes
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the party to be charged with enforcement.
f. Notices. Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile and shall be effective
five days after being placed in the mail, if mailed by regular United States
mail, or upon receipt, if delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile, in each case addressed
to a party. The addresses for such communications shall be:
If to the Seller:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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If to the Purchaser: To the address set forth immediately below such
Purchaser's name on the signature pages hereto.
Each party shall provide notice to the other party of any change in
address.
g. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns.
Neither the Seller nor any Purchaser shall assign this Agreement or any rights
or obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, any Purchaser may assign its rights hereunder to
any person that purchases the Shares in a private transaction from a Purchaser
or to any of its "affiliates," as that term is defined under the 1934 Act,
without the consent of the Seller.
h. Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
i. Survival. The representations and warranties of the Seller
and the agreements and covenants shall survive the closing hereunder
notwithstanding any due diligence investigation conducted by or on behalf of the
Purchaser. The Seller agrees to indemnify and hold harmless the Purchaser and
all their officers, directors, employees and agents for loss or damage arising
as a result of or related to any breach or alleged breach by the Seller of any
of its representations, warranties and covenants set forth in Section 3 this
Agreement.
j. Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
k. No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
l. Remedies. The Seller acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the Purchaser by
vitiating the intent and purpose of the transaction contemplated hereby.
Accordingly, the Seller acknowledges that the remedy at law for a breach of its
obligations under this Agreement will be inadequate and agrees, in the event of
a breach or threatened breach by the Seller of the provisions of this Agreement,
that the Purchaser shall be entitled, in addition to all other available
remedies at law or in equity, and in addition to the penalties assessable
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herein, to an injunction or injunctions restraining, preventing or curing any
breach of this Agreement and to enforce specifically the terms and provisions
hereof, without the necessity of showing economic loss and without any bond or
other security being required.
IN WITNESS WHEREOF, the undersigned Purchaser and the Seller have caused
this Agreement to be duly executed as of the date first above written.
GeneThera, Inc. - SELLER
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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G. Gekko Enterprises - PURCHASER
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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ADDRESS: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
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Tel: ▇▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇(▇▇▇) ▇▇▇-▇▇▇▇
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