EXHIBIT 10.8
PROTEO, INC.
PREFERRED STOCK PURCHASE AGREEMENT
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This Preferred Stock Purchase Agreement ("Agreement") is made this 9th day of
June, 2008 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 Series A Preferred
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, 23,879,350 shares of
the Company's common stock are issued and outstanding. As of the date
hereof, no preferred stock has been issued.
C. The Company has created a Series A Preferred Stock of and designated up
to 750,000 shares of the Company's preferred stock which voting powers,
preferences and relative, participating, optional and other special
rights are defined in the Certificate of Designation of Series A
Preferred Stock, a copy of which is attached hereto as Exhibit A.
D. Purchaser and the Company now mutually desire for Purchaser to purchase
600,000 shares of the Company's Series A Preferred 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.
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1.1 SALE OF SHARES. The Company and its Board of Directors has
authorized the issuance and sale of 600,000 shares of Series A
Preferred stock (the "Purchase Shares") pursuant to the terms
of this Agreement, which Purchase Shares in accordance with
the Certificate of Designation, Preferences and Rights of
Series A Preferred Stock (the "Certificate"), a copy of which
is attached hereto as part of this Agreement.
1.2 PRICE PER SHARE. The price per share shall be $6.00 per share,
totaling to $3,600,000 for the Purchase Shares.
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 600,000 shares of the Company's Series A
Preferred 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
following 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, the Purchaser shall
deliver appropriate promissory note for the payment of the
purchase price as determined in paragraph 1.2. payable in four
(4) installments in such amount and at such date as following:
o First installment of $900,000 falling due upon
execution;
o Second installment of $450,000 falling due on or
before August 30, 2008;
o Third installment of $900,000 falling due on or
before November 30, 2008;
o Fourth and final installment of $1,350,000 falling
due on or before March 31, 2009.
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 Purchaser and the Company prior to payment.
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2.3 ISSUANCE AND DELIVERY. At the Closing, 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 Purchaser 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
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 23,879,350 shares are
outstanding at the date of this Agreement. The Company is
authorized to issue 10,000,000 shares of Preferred Stock of
which no 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.
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3.3 AUTHORITY. The Company has all requisite power and authority
to enter into this Agreement, and to consummate the
transactions contemplated hereby. The execution and delivery
of this Agreement, and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company, and upon their
execution and delivery by the Company, such document will
constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
3.4 ISSUANCE OF SHARES. The Purchase 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, will not (a) conflict with any provisions
of the Articles 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.
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 PURCHASER.
Purchaser hereby represents, warrants and covenants with the Company as follows:
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4.1 LEGAL POWER. Purchaser has the requisite power, as
appropriate, and is authorized to enter into this Agreement,
to purchase the Purchase 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 Purchaser, and, upon due execution
and delivery by the Company, this Agreement will be a valid
and binding agreement of Purchaser.
4.3 INVESTMENT REPRESENTATIONS.
Purchaser represents and agrees that:
4.3.1 Purchaser is acquiring the Purchase 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;
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. Purchaser has
such knowledge and experience in financial and
business matters that it is fully able to evaluate
the merits and risks of the acquisition of the
Securities, and has conducted their own investigation
into the suitability of its investment, and reviewed
all the information that it considers necessary to
evaluate its acceptance of the Purchase Shares.
Purchaser is able to bear the risks associated with
accepting the Purchase Shares, including the risk of
loss of the entire investment in the Purchase Shares.
Purchaser has received and reviewed any and all
information Purchaser deemed necessary to evaluate
its investment.
4.3.3 Purchaser understands that the Purchase 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 Purchase Shares
will be endorsed with the following legend:
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(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.
4.3.4 Purchaser has read, and understands and agrees to the
Certificate of Designation for the Series A Preferred
Stock.
5. TERM AND TERMINATION
5.1 TERM. This Agreement shall expire upon total payment of the
Purchase Price and issuance of 600,000 shares of Preferred
Stock Class A to Purchaser.
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) failure of the Purchaser to pay any installment
hereunder when due, which shall continue for ten (10)
days;
(iv) termination of the Promissory Note given by the
Purchaser to the Company in accordance with paragraph
2.2;
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6. MISCELLANEOUS.
6.1 GOVERNING LAW . This Agreement shall be governed by and
construed under the laws of the State of California.
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.
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.
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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 Purchaser: FID Esprit AG
Joerg Alte
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.
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/ JOERG ALTE
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Managing Director: Joerg Alte
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