Exhibit 10.5
PROTEO, INC.
COMMON STOCK PURCHASE AGREEMENT
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This Common Stock Purchase Agreement ("Agreement") is made this 22nd day of
December, 2006 by and between PROTEO, INC., a Nevada corporation with its
principal place of business at 2102 Business Center Drive, Irvine, CA 92612 (the
"Company") and the Purchaser of its stock, FIDEsprit AG, a Swiss corporation
with its principal place of business at Rosengartenstr. 4, CH-8608 Bubikon,
Switzerland ("Purchaser").
RECITALS
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A. The Company is engaged in research and development of pharmaceuticals.
The Company now is willing to sell shares of its common stock, on terms
as stated herein.
B. The Company has authorized 300,000,000 shares of common stock and
10,000,000 shares of preferred stock. Currently, 22,379,350 shares of
the Company's common stock are issued and outstanding. As of the date
hereof, no preferred stock has been issued.
C. Purchaser and the Company now mutually desire for Purchaser to purchase
1,500,000 shares of the Company's common stock at the price per share
determined herein, on the terms and conditions stated herein.
AGREEMENT
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In consideration of the mutual promises, representations, warranties and
conditions set forth in this Agreement, the Company and Purchaser agree as
follows.
1. Purchase and Sale of Shares.
1.1 SALE OF SHARES. The Company has authorized the issuance and
sale of 1,500,000 shares. (the "Purchase Shares") under this
Agreement.
1.2 PRICE PER SHARE. The price per share shall be $0.60 per share,
totaling to $900,000 for the Purchase Shares.
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In reliance upon Purchaser representations and warranties
contained in Section 4 hereof, and subject to the terms and
conditions set forth herein, the Company hereby agrees to sell
to Purchaser shares of the Company's common stock.
2. CLOSING: ISSUANCE AND DELIVERY OF SHARES: CONDITIONS.
2.1 CLOSING(S). The closing of the sale under this Agreement (the
"Closing"), shall be held within five (5) working days upon
the date of the Agreement ("Closing Date"), at the offices of
the Company or on such earlier date or at such other place as
the Parties may agree.
2.2 PAYMENT OF PURCHASE PRICE. At the Closing session, the
Purchaser shall deliver appropriate promissory note for the
payment of the purchase price as determined in paragraph 1.2.
payable in five (5) equal monthly installments in the amount
of $180,000 each, the first falling due upon issuance of the
Purchase Shares, the second falling due on March 31, 2007, the
third on June 30, 2007, the fourth on September 30, 2007 and
the last falling due on December 31, 2007. Any payment shall
be in United States funds by check, cash, by wire transfer or
by other means of payment as shall have been agreed upon by
the Purchasers and the Company prior to payment.
2.4 ISSUANCE AND DELIVERY. At the Closing session, subject to the
terms and conditions hereof, the Company shall deliver an
irrevocable instruction to the Company's secretary to issue
and deliver to Purchaser appropriate stock certificates,
registered in the name of the Purchaser for the Shares, or his
designee.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to Purchasers as of the date hereof
as follows, and all such representations and warranties shall be true and
correct as of any Closing Date as if then made and shall survive the Closing.
3.1 ORGANIZATION. The Company is a corporation, duly incorporated,
validly existing and in good standing under the laws of
Nevada. The Company has all requisite power and authority to
own or lease its properties and to conduct its business as now
conducted. The Company holds all licenses and permits required
for the conduct of its business as now conducted, which, if
not obtained, would have a material adverse effect on the
business, financial condition or results of operations of the
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Company taken as a whole. The Company is qualified as a
foreign corporation and is in good standing in any states
where the conduct of its business or its ownership or leasing
of property requires such qualification, except where the
failure to so qualify would not have a material adverse effect
on the business, financial condition or results of operations
of the Company taken as a whole.
3.2 CAPITALIZATION. The Company is authorized to issue 300,000,000
shares of Common Stock of which 22,379,350 shares are
outstanding at the date of this Agreement. All of the issued
and outstanding shares of Common Stock on the Closing Date are
or will have been duly authorized, validly issued and then
fully paid and non-assessable. The Company's right to issue
shares of its stock otherwise shall not be limited by any
provision herein.
3.3 AUTHORITY. The Company has all requisite power and authority
to enter into this Agreement, and to consummate the
transactions contemplated hereby and thereby. The execution
and delivery of this Agreement, and the consummation of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of
the part of the Company, and upon their execution and delivery
by the Company, such documents will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms.
3.4 ISSUANCE OF SHARES. The Shares, when issued pursuant to the
terms of this Agreement, will be duly and validly authorized
and issued, fully paid and non-assessable.
3.5 NO CONFLICT WITH LAW OR DOCUMENTS. The execution, delivery and
consummation of this Agreement, and the transactions
contemplated hereby and thereby, will not (a) conflict with
any provisions of the Certificate of Incorporation or Bylaws
of the Company; (b) result in any violation of or default or
loss of a benefit under, or permit the acceleration of any
obligation under (in each case, upon the giving of notice, the
passage of time, or both), any mortgage, indenture, lease,
agreement or other instrument, permit, franchise license,
judgement, order, decree, law, ordinance, rule or regulation
applicable to the Company.
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3.6 CONSENTS, APPROVALS AND PRIVATE OFFERING. Except for any
filings required under Federal and applicable state securities
laws, all of which shall have been made as of the Closing Date
to the extent required as of such time, no permit, consent,
approval, order or authorization of, or registration,
declaration or filing with, any Federal, state, local or
foreign governmental authority is required to be made or
obtained by the Company in connection with the execution and
delivery of this Agreement, and the consummation of the
transactions contemplated hereby and thereby.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS.
Each Purchaser hereby represents, warrants and covenants with the Company as
follows:
4.1 LEGAL POWER. Such Purchaser has the requisite power, as
appropriate, and is authorized to enter into this Agreement,
to purchase the Shares hereunder, and to carry out and perform
his, her or its obligations under the terms of this Agreement.
4.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by each Purchaser, and, upon due
execution and delivery by the Company, this Agreement will be
a valid and binding agreement of each Purchaser.
4.3 INVESTMENT REPRESENTATIONS.
Purchaser represents and agrees that:
4.3.1 Purchaser is acquiring the Shares for its own
account, not as a nominee or agent, for investment
and not with a view to or for resale in connection
with, any distribution or public offering thereof
within the meaning of the Securities Act of 1933, as
amended (the "Act"), except pursuant to an effective
registration statement under the Act;
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4.3.2 Purchaser is a professional and an 'accredited
investor,' as that term is defined in Rule 501 (a) of
Regulation D promulgated under the Act. Each
Purchaser has such knowledge and experience in
financial and business matters that they are fully
able to evaluate the merits and risks of the
acquisition of the Securities, and have conducted
their own investigation into the suitability of its
investment, and reviewed all the information that
they consider necessary to evaluate their acceptance
of the Securities. Each Purchaser is able to bear the
risks associated with accepting the Securities,
including the risk of loss of the entire investment
in the Securities. Purchaser has received and
reviewed any and all information Purchaser deemed
necessary to evaluate its investment.
4.3.3 Purchaser understands that the Shares have not been
registered under the Act by reason of a specific
exemption therefrom, and may not be transferred or
resold except pursuant to an effective registration
statement or exemption from registration and each
certificate representing the Shares will be endorsed
with the following legend:
(i) THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THE SHARES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF A CURRENT AND
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
WITH RESPECT TO SUCH SHARES, OR AN OPINION OF
THE ISSUER'S COUNSEL TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT; and
(ii) Any legend required to be placed thereon by
applicable federal or state securities laws.
5. TERM AND TERMINATION
5.1 TERM. This Agreement shall expire upon total purchase of
1,500,000 shares contained in the Offering, but no later than
December 31, 2007, or any other date the parties herein agree
in writing.
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5.2. The Company may cancel this agreement upon
(i) any misrepresentation or omission of or on behalf of
the Purchaser made to the Company in connection with
this Agreement;
(ii) adjudication of bankruptcy, or filing of a petition
under any bankruptcy or debtor's relief law by or
against the Purchaser, or failure of the Purchaser to
generally pay its debts as they become due;
(iii) termination of the Promissory Note given by the
Purchaser to the Company as of December 22, 2006;
6. MISCELLANEOUS.
6.1 GOVERNING LAW . This Agreement shall be governed by and
construed under the laws of the State of Nevada.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of,
and are binding upon, the successors, assigns, heirs,
executors, and administrators of the parties hereto.
6.3 ENTIRE AGREEMENT. This Agreement and the other documents
delivered pursuant hereto, constitute the full and entire
understanding and agreement among the parties with regard to
the subjects hereof and no party shall be liable or bound to
any other party in any manner by a representations,
warranties, covenants, or agreements except as specifically
set forth herein or therein. Nothing in this Agreement,
express or implied, is intended to confer upon any party,
other than the parties hereto and their respective successors
and assigns, any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly
provided herein.
6.4 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, it shall to the extent
practicable, be modified so as to make it valid, legal and
enforceable and to retain as nearly as practicable the intent
of the parties and the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected
or impaired thereby.
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6.5 AMENDMENT AND WAIVER. Except as otherwise provided herein, any
term of this Agreement may be amended, and the observance of
any term of this Agreement may be waived (either generally or
in a particular instance, either retroactively or
prospectively, and either for a specified period of time or
indefinitely), with the written consent of the Company and
Purchaser. Any amendment or waiver effected in accordance with
this Section shall be binding upon each future holder of any
security purchased under this Agreement (including securities
into which such securities have been converted) and the
Company.
6.6 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be effective
when delivered personally, or sent by telex or telecopier
(with receipt confirmed), provided that a copy is mailed by
registered mail, return receipt requested, or when received by
the addressee, if sent by Express Mail, Federal Express or
other express delivery service (receipt request) in each case
to the appropriate address set forth below.
If to the Company: PROTEO, INC.
Birge Bargmann
Proteo Biotech AG
Am Kiel-Kanal 44
D-24106 Kiel
If to a Purchaser: FID Esprit AG
Axel Kutscher
Rosengartenstr. 4
CH-8608 Bubikon
6.7 TITLES AND SUBTITLES. The titles of paragraphs and
subparagraphs of this Agreement are for convenience of
reference only and are not be not considered in construing
this Agreement.
6.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement the date first
above written.
"COMPANY"
PROTEO, INC. a Nevada Corporation
By: /S/ BIRGE BARGMANN
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CEO: Birge Bargmann
"PURCHASER"
FIDEsprit AG
By: /S/ AXEL J. KUTSCHER
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Managing Director: Axel J. Kutscher
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