Share Purchase Agreement
CONTENTS
SECTION
1. The Closing
2. Sale of Shares
3. Covenants of SELLER
4. Representations and Warranties of SELLER
5. Representations and Warranties of the Company
6. Covenants of BUYER
7. Representations and Warranties of BUYER
8. Indemnities
9. Additional Covenants of the Company and SELLER
10. Transactions to be Completed at Closing
11. Termination
12. Governing Law
13. Amendment and Waiver
14. Assignment
15. Notices
16. Section Headings
17. Exhibits
18. Entire Agreement
19. Corporate Governance
20. Independent Advice, Non-Litigation
21. Time of the Essence; Computation of Time
22. Severability
23. Counterparts
SHARE PURCHASE AGREEMENT
Agreement dated the 30th day of July 2002, among the shareholders of BioSource
Therapeutics, Inc., ("SELLER"), BioSource Therapeutics, Inc., a Delaware
corporation ("Company") and Innovative Technology Acquisition Corp., a Delaware
corporation ("BUYER").
WITNESSETH:
WHEREAS, SELLER owns an aggregate of 1,500 shares of common stock, no par value
per share, constituting all of the issued and outstanding shares of common stock
of the Company (the "Shares") which SELLER wishes to sell to BUYER and BUYER
wishes to purchase from SELLER in order to enable BUYER to acquire the assets
and business of the Company, all upon the terms hereinafter set forth;
NOW, THEREFORE, the parties hereby agree as follows.
AGREEMENT
1. The Closing.
1.1 The Closing will take place the 8th day of August, 2002. At
such time the following condition precedent to the Closing
will be satisfied:
The following approvals and consents required in connection
with this Agreement and to conclude duly and legally the
transactions contemplated herein shall have been obtained and
shall be in full force and effect:
a. The consent of the Boards of Directors of BUYER and
the Company, and SELLER.
b. The consent of any holders of any secured debt of the
Company.
c. Any other consent so required by law.
d. The Company will give the Closing Notice promptly
after such approvals and consents have been obtained.
1.2 The Closing will take place on August 8th, 2002 at 12:00 P.M.
in the offices of Jonathan D. Leinwand, P.A. in Fort
Lauderdale, Florida.
2. Sale of Shares.
2.1 At the Closing, SELLER will sell to BUYER, and BUYER will
purchase from SELLER, the Shares of the Company for a total
consideration of 1,456,226 shares of common stock of the BUYER
(the "Consideration"), having a par value of $.01 per share
and representing thirty percent (30%) of the outstanding
common stock of the BUYER as set forth in Section 7.1(j)
below.
2.1.1 485,408 of the shares shall be held in escrow and
shall be released therefrom in equal installments and
allocated pursuant to Section 2.1.3 upon the Company
achieving the following milestones:
(a) 161,802 shares shall be released upon the
Company receiving funding in the amount of
$500,000 and completion of the business plan
for the Company.
(b) 161,803 shares shall be released upon the
accessing of the Medicaid market by the
Company in six (6) states.
(c) 161,803 shares shall be released upon the
Company achieving revenues equal to 50% of
the projections in the first year of
operations subsequent to introduction of
Nutraplete to the market as set forth in the
business plan.
2.1.2 The remainder of the Consideration, namely 970,818
shares, shall to be delivered by BUYER to the SELLER
at the Closing.
2.1.3 All shares delivered and distributed by BUYER to
SELLER shall be allocated among the SELLER in
accordance with their pro rata ownership of the
Shares as indicated on Exhibit 2.1, provided that the
Consideration shall be paid only in whole shares with
cash being paid in lieu of any fractional shares
based on the closing bid price for said shares on the
day prior to closing.
2.1.4 The BUYER represents and warrants there is no option,
warrant, privilege or other right outstanding with
respect to the Consideration.
2.2 The shares referenced in 2.1 will not have been registered
under the Securities Act, will be subject to Rule 144 and
shall bear a restrictive legend.
2.3 The Buyer shall create a stock option plan that will be
available to the employees and consultants of the Company
within 90-days after closing.
3. Covenants of SELLER.
3.1 SELLER will not use or disclose to third-parties any trade
secrets or other proprietary or confidential information
pertaining to any aspect of the Business.
3.2 SELLER acknowledges that violation of any of the provisions of
this Section 3 will cause irreparable loss and harm to both
the Company and BUYER which cannot be reasonably or adequately
compensated by damages in an action at law. Accordingly, in
the event of a breach or threatened breach by SELLER of any of
the provisions of this Section 3, each of the Company and
BUYER shall be entitled to injunctive and other equitable
relief to prevent or cure any breach or threatened breach
thereof, and SELLER agrees that it will not be a defense to
any request for such relief that the Company or BUYER has an
adequate remedy at law. Notwithstanding the foregoing, the
Company and BUYER shall have other legal remedies as may be
appropriate under the circumstance including, inter alia,
recovery of damages occasioned by such breach. For purposes of
any proceeding under or with respect to this Section 3,
SELLER, the Company and BUYER submit to the jurisdiction of
the courts of the State of New York and of New York County
located in the State of New York; and each agrees not to raise
and waives any objection to or defense based on the venue of
any such court or forum non conveniens.
3.3 A court of competent jurisdiction, if it determines any of the
provisions of this Section 3 to be unreasonable in scope, time
or geography, is hereby authorized by SELLER, the Company and
BUYER to enforce the same in such narrower scope, shorter time
or lesser geography as such court determines to be reasonable
under all the circumstances.
4. Representations and Warranties of SELLER.
SELLER represents and warrants to the BUYER as follows.
(a) The SELLER has the power and authority to execute,
deliver and perform this Agreement and any other
agreement or document executed by them under or in
connection with this Agreement; and the SELLER has
taken all necessary action to authorize the
execution, delivery and performance of this Agreement
and any such other agreement or document. This
Agreement constitutes, and any such other agreement
or document when executed will constitute, the legal,
valid and binding obligations of SELLER and the
Company enforceable against SELLER and the Company in
accordance with their respective terms.
(b) Neither the execution nor delivery of this Agreement
nor the transactions contemplated herein, nor
compliance with the terms and conditions of this
Agreement will:
(i) contravene any provision of law or any
statute, decree, rule or regulation binding
upon SELLER or contravene any judgment,
decree, franchise, order or permit
applicable to SELLER; or
(ii) conflict with or result in any breach of any
terms, covenants, conditions or provisions
of, or constitute a default (with or without
the giving of notice or passage of time or
both) under any agreement or other
instrument to which SELLER is a party or by
which SELLER is bound.
(c) No authorization, consent or approval of, or
exemption by, any governmental, judicial or public
body or authority of or in any state is required to
authorize, or is required in connection with (i) the
execution, delivery and performance by SELLER of this
Agreement, or (ii) any of the transactions
contemplated by this Agreement, or (iii) any of the
certificates, instruments or other agreements
executed by SELLER in connection with this Agreement,
or (iv) the taking of any action by BUYER.
(d) EXHIBITS 4.1D-1 and 4.1D-2 hereto contain,
respectively, true and complete copies of the
Articles of Incorporation and By-Laws of the Company,
and the same have not been amended and are in full
force and effect; as of the Closing the Articles of
Incorporation and By-Laws of the Company will be
amended, respectively, in accordance with EXHIBITS
4.1D-3 and 4.1D-4 hereto.
(e) SELLER is the sole owner of the Shares and of all
rights in and to the Shares; and SELLER may sell the
Shares to BUYER pursuant to this Agreement without
the consent or approval of any other person,
corporation, partnership, governmental authority or
other entity; the Shares are fully paid and
non-assessable and, except as provided in this
Agreement, SELLER has not sold, transferred or
assigned any of its rights in or to any of the
Shares; the Shares are free and clear of any liens,
claims, encumbrances and restrictions of any kind
except for the approvals noted above.
4.1 Knowledge by BUYER of any event, circumstance or fact will not
vitiate or otherwise impair any of the warranties of SELLER or
any of the rights and remedies available to BUYER with respect
to such warranties.
5. Representations and Warranties of the Company.
The Company represents and warrants to BUYER that the representations and
warranties of SELLER under Section 4.1 insofar as they pertain to the Company
are true and correct.
5.1 The Company represents and warrants to the BUYER as follows:
(a) The Company is duly incorporated and validly existing
under the laws of the State of Delaware; the Company
is duly qualified to conduct business in all
jurisdictions where it is required to qualify; each
of SELLER and the Company has the corporate power and
authority to execute, deliver and perform this
Agreement and any other agreement or document
executed by either of them under or in connection
with this Agreement; and each has taken all necessary
corporate action to authorize the execution, delivery
and performance of this Agreement and any such other
agreement or document. This Agreement constitutes,
and any such other agreement or document when
executed will constitute, the legal, valid and
binding obligations of SELLER and the Company
enforceable against SELLER and the Company in
accordance with their respective terms.
(b) Neither the execution nor delivery of this Agreement
nor the transactions contemplated herein, nor
compliance with the terms and conditions of this
Agreement will:
(i) contravene any provision of law or any
statute, decree, rule or regulation binding
upon SELLER or the Company or contravene any
judgment, decree, franchise, order or permit
applicable to SELLER or the Company; or
(ii) conflict with or result in any breach of any
terms, covenants, conditions or provisions
of, or constitute a default (with or without
the giving of notice or passage of time or
both) under the Articles of Incorporation or
By-Laws of SELLER or the Company or any
agreement or other instrument to which
SELLER or the Company is a party or by which
either is bound, or result in the creation
or imposition of any lien, security
interest, charge or encumbrance upon any of
the assets, rights, contracts or other
property of the Company.
(c) No authorization, consent or approval of, or
exemption by, any governmental, judicial or public
body or authority of or in any state is required to
authorize, or is required in connection with (i) the
execution, delivery and performance by SELLER of this
Agreement, or (ii) any of the transactions
contemplated by this Agreement, or (iii) any of the
certificates, instruments or other agreements
executed by SELLER in connection with this Agreement,
or (iv) the taking of any action by BUYER.
(d) EXHIBITS 4.1D-1 and 4.1D-2 hereto contain,
respectively, true and complete copies of the
Articles of Incorporation and By-Laws of the Company,
and the same have not been amended and are in full
force and effect; as of the Closing the Articles of
Incorporation and By-Laws of the Company will be
amended, respectively, in accordance with EXHIBITS
4.1D-3 and 4.1D-4 hereto.
(e) The unaudited financial statements of the Company as
at June 30, 2002 including profit and loss statements
for the periods then ended as of these dates, as set
forth in EXHIBIT 5.1E hereto (the "Financial
Statements"), present fairly, in the case of the
profit and loss statements, the results of operations
of the Company for the fiscal periods then ended, and
in the case of the balance sheets, the financial
condition of the Company at said dates. As at said
dates, the Company did not have any liabilities
(contingent or otherwise) or assets, which are not
disclosed in the Financial Statements or, in the case
of liabilities, reserved against therein. The
Financial Statements have been prepared in accordance
with generally accepted accounting principles and
practices in United States] consistently applied.
Since the dates of the Financial Statements there
have been no adverse changes in the business or
financial condition of the Company and the Company
has not incurred any additional obligations or
liabilities except trade debts in the ordinary course
of business. The BUYER acknowledges that it is not
acquiring any intellectual property of the Company as
such property has been sold subsequent to the
preparation of the aforementioned Financial
Statements. The Company maintains an exclusive
license to use the intellectual property as described
in schedule 5.1(e) such license being an asset of the
Company (together with the assets on the Financial
Statements, the "Company Assets"). Such license is
sufficient to allow the Company to carry out its
business as if the intellectual property were owned
by the Company.
The Company has filed all tax returns, which it has
been required to file and has paid all taxes and
interest and penalties, if any, which it has been
required to pay. The Company has made provision
sufficient to satisfy any and all accrued tax
liabilities.
(f) Apart from the Company Assets and other assets set
forth in the Financial Statements, the Company has no
assets, rights or other property except as otherwise
stated herein.
(g) The Company has all rights, title and interest in the
product known as Nutraplete and there are no
encumbrances or liens against such product or any
other thing which may prevent the BUYER from
producing and selling the product.
(h) None of the Company Assets (i) violates or infringes
any contract, copyright, trademark, service mark,
right of privacy, patent or other right, or (ii)
contains any material which the Company is not duly
authorized to use, or (iii) misuses or
misappropriates any trade secret or confidential or
proprietary information.
(i) There is no litigation or arbitration or
administrative proceeding or claim asserted, pending
or threatened respecting or involving the Company,
the business of the Company or any of the Company
Assets or other assets of the Company.
(j) There is no order, writ, injunction or decree of any
court, government or governmental agency or any
arbitration award affecting the Company, the business
of the Company or any of the Company Assets or other
assets of the Company. The Company and its assets and
operations are in compliance with all applicable
laws, rules, regulations and ordinances.
(k) EXHIBIT 5.1K hereto contains a list of all the
officers, directors, employees and agents of the
Company, their salaries and other compensation
arrangements; the Company has no other obligations
for salary or compensation.
(l) EXHIBIT 5.1L hereto contains true and complete copies
of all health, pension, retirement, profit sharing
and deferred compensation arrangements maintained by
the Company. All of these are in compliance with all
applicable laws, rules and regulations.
(m) EXHIBIT 5.1M hereto contains a list of all the banks
at which the Company has accounts and the authorized
signatories on such accounts.
(n) EXHIBIT 5.1N hereto contains a description of all
insurance's maintained by the Company; no default
exists with respect to any of such insurance's and
all of such insurance's are in full force and effect.
(p) There is no option, warrant, privilege, or other
right outstanding with respect to any unissued shares
of the Company, whether treasury shares or otherwise,
and there is no option, warrant, privilege or other
right outstanding with respect to any of the Shares;
the Company has issued and outstanding 1,500 shares
of common stock, no par value per share, all of which
are owned by SELLER; there are no other shares of the
Company outstanding.
5.2 Knowledge of the BUYER of any event or circumstance or fact
will not vitiate or otherwise impair any of the warranties of
the Company or any of the rights and remedies available to
BUYER with respect to such warranties.
6. Covenants of BUYER.
6.1 Prior to the Closing, the BUYER will continue to conduct its
business in accordance with the BUYER's normal and past
practices.
6.2 Prior to the Closing, the BUYER will not do, any of the
following without SELLER's prior written consent:
(a) change the nature of its business;
(b) amend its Articles of Incorporation or By-Laws except
in accordance with EXHIBITS 7.1D-3 and 7.1D-4 hereto;
(c) merge or consolidate with any corporation or other
entity or liquidate or dissolve;
(d) adopt or agree to adopt any plan providing for its
reorganization; and
6.3 Between the date hereof and the Closing, BUYER shall deliver a
copy of each document it files with the Securities and
Exchange Commission (the "SEC") to the SELLER.
6.4 Prior to the Closing, BUYER shall have executed a consulting
agreement with David Miller.
6.5 The Board of Directors of BUYER shall have approved this
Agreement and the acquisition in accordance with all
applicable laws.
7. Representations and Warranties of BUYER.
7.1 BUYER represents and warrants to SELLER and the Company as
follows.
(a) BUYER is duly incorporated and validly existing under
the laws of Delaware; that no other entity exists; it
has the corporate power and authority to execute,
deliver and perform this Agreement, and any other
agreement or document executed by it under or in
connection with this Agreement; and it has taken all
necessary corporate action to authorize the
execution, delivery and performance of this
Agreement, and any such other agreement or document.
This Agreement constitutes, and any such other
agreement or document when executed will constitute,
the legal, valid and binding obligations of BUYER
enforceable against BUYER in accordance with their
respective terms.
(b) Neither the execution nor delivery of this Agreement,
nor the transactions contemplated herein, nor
compliance with the terms and conditions of this
Agreement will:
(i) contravene any provision of law or any
statute, decree, rule or regulation binding
upon BUYER or contravene any judgment,
decree, franchise, order or permit
applicable to BUYER; or
(ii) conflict with or result in any breach of any
terms, covenants, conditions or provisions
of, or constitute a default (with or without
the giving of notice or passage of time or
both) under the Articles of Incorporation or
By-Laws of BUYER or the Company or any
agreement or other instrument to which BUYER
or the Company is a party or by which either
is bound, or result in the creation or
imposition of any lien, security interest,
charge or encumbrance upon any of the
assets, rights, contracts or other property
of the Company.
(c) No authorization, consent or approval of, or
exemption by, any governmental, judicial or public
body or authority of or in Delaware is required to
authorize, or is required in connection with (i) the
execution, delivery and performance by BUYER of this
Agreement, or (ii) any of the transactions
contemplated by this Agreement, or (iii) any of the
certificates, instruments or other agreements
executed by BUYER in connection with this Agreement,
or (iv) the taking of any action by BUYER.
(d) EXHIBITS 7.1D-1 and 7.1D-2 hereto contain,
respectively, true and complete copies of the
Articles of Incorporation and By-Laws of the Company,
and the same have not been amended and are in full
force and effect; as of the Closing the Articles of
Incorporation and By-Laws of the Company will be
amended, respectively, in accordance with EXHIBITS
7.1D-3 and 7.1D-4 hereto.
(e) The BUYER has filed all tax returns which it has been
required to file and has paid all taxes and interest
and penalties, if any, which it has been required to
pay.
(f) Apart from the assets and other assets set forth in
the Financial Statements (the "BUYER'S Assets"), the
Company has no assets, rights or other property.
(g) There is no litigation or arbitration or
administrative proceeding or claim asserted, pending
or threatened respecting or involving the BUYER, the
business of the BUYER or any of the BUYER'S Assets or
other assets of the BUYER.
(h) There is no order, writ, injunction or decree of any
court, government or governmental agency or any
arbitration award affecting the Company, the business
of the Company or any of the Company Assets or other
assets of the Company. The Company and its assets and
operations are in compliance with all applicable
laws, rules, regulations and ordinances.
(i) The Shares to be issued as contemplated herein are
fully paid and non-assessable and, except as provided
in this Agreement, BUYER has not sold, transferred or
assigned any of its rights in or to any of the
Shares; the Shares are free and clear of any liens,
claims, encumbrances and restrictions of any kind
except for the approvals noted above.
(j) There is no option, warrant, privilege, or other
right outstanding with respect to any unissued shares
of the Company, whether treasury shares or otherwise,
and there is no option, warrant, privilege or other
right outstanding with respect to any of the Shares;
the BUYER has issued and outstanding 4,854,086 shares
of common stock, par value $.01 per share; there are
no other shares of the Company outstanding; the
Company is only authorized to issue 100,000,000
shares of common stock with a par value of $.01 per
share.
(k) The 10-KSB, the 10-QSB and the 8-Ks did not, as of
their respective dates, contain any untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(l) Since April 30, 2002. there has not been any material
adverse change in the financial position or results
of operations or prospects of BUYER and its
Subsidiaries, taken as a whole.
(m) Neither BUYER nor any of its officers, directors or
employees has employed any broker, finder or
investment banker or incurred any liability for any
investment banking fees, financial advisory fees,
brokerage fees or finders' or similar fees in
connection with the transactions contemplated by this
Agreement.
(n) All information concerning BUYER contained in this
Agreement, in any certificate furnished to SELLER and
Company pursuant hereto and in each schedule hereto
is both complete (in that it does not omit to state
any material fact necessary to make the statements
contained therein not misleading) and accurate; and
all documents furnished to SELLER and Company
pursuant to this Agreement as being documents
described in this Agreement or in any schedule
attached hereto are true and correct copies of the
documents which they purport to represent.
7.2 Knowledge by SELLER or the Company of any event, circumstance
or fact will not vitiate or otherwise impair any of the
representations or warranties of BUYER or any of the rights
and remedies available to SELLER or the Company with respect
to such representations and warranties.
8. Indemnities.
8.1 The representations and warranties of the Company, SELLER and
BUYER will be deemed made on execution of this Agreement and
at the Closing, and all of those representations and
warranties and all of the covenants and obligations of the
parties under this Agreement will survive the Closing.
8.2 BUYER will hold each of SELLER and the Company harmless from
and pay any loss, damage, cost or expense (including, without
limitation, legal fees and court costs) which either SELLER or
the Company incurs by reason of any representation or warranty
or withholding of any pertinent facts or other information of
BUYER being incorrect or by reason of any breach by BUYER of
any of its covenants or obligations under this Agreement.
8.3 The Company will hold BUYER harmless from and pay any loss,
damage, cost or expense (including, without limitation, legal
fees and court costs) which BUYER incurs by reason of any
representation or warranty of the Company being incorrect or
by reason of any breach by the Company of any of its covenants
or obligations under this Agreement.
8.4 SELLER will hold BUYER harmless from and pay any loss, damage,
cost or expense (including, without limitation, legal fees and
court costs) which BUYER incurs by reason of any
representation or warranty of SELLER being incorrect or by
reason of any breach by SELLER of any of its covenants or
obligations under this Agreement.
9. Additional Covenants of the Company and SELLER.
9.1 Prior to the Closing, the Company will continue to conduct,
and SELLER will cause the Company to continue to conduct, its
business in accordance with the Company's normal and past
practices.
9.2 Prior to the Closing, the Company will not do, and SELLER will
not permit the Company to do, any of the following without
BUYER's prior written consent:
(a) issue any shares, or issue any rights or privileges
to acquire any shares or other securities of the
Company, or issue any other securities;
(b) change the nature of its business;
(c) declare or pay any dividend or make any other
distribution or payment in respect of any of its
shares or purchase or redeem any of its shares;
(d) intentionally left blank;
(e) merge or consolidate with any corporation or other
entity or liquidate or dissolve;
(f) adopt or agree to adopt any plan providing for its
reorganization;
(g) make any loan or other extension of credit or issue
any guaranty or otherwise incur any contingent
liability except for extensions of credit not
exceeding thirty (30) days to trade creditors in
accordance with past practices and in the normal
course of business;
(h) sell, pledge, transfer, assign or grant a security
interest in any of its assets, property, contracts or
rights;
(i) enter into or terminate any contract;
(j) employ anyone or terminate anyone's employment;
(k) pay any compensation other than the current monthly
payroll, raise or agree to raise anyone's
compensation, or pay or agree to pay any bonus or
other special compensation.
10. Transactions to be Completed at Closing.
10.1 The following requirements will be completed or satisfied, as
the case may be, at the Closing.
(a) SELLER will deliver to BUYER share certificates
representing the Shares, which certificates will be
duly endorsed by SELLER to BUYER.
(b) BUYER will deliver said share certificates to the
Company and the Company will deliver to BUYER a
certificate, duly executed and issued in the name of
BUYER, representing all the issued and outstanding
common shares of the Company, registered in the name
of BUYER.
(c) BUYER will provide SELLER with share certificates
representing 1,456,226 common shares of BUYER at
Closing to be in the names provided by SELLER.
(d) BUYER will provide SELLER with the consulting
agreement pursuant to Section 6.4.
(e) Intentionally left blank
(f) BUYER will be furnished with copies of all approvals
and consents required in connection with this
Agreement and a certificate by an officer or director
of the Company and an officer or director of SELLER
certifying that the same are in full force and
effect.
(g) Intentionally left blank
(h) BUYER will be furnished with a certificate by an
officer or director of the Company certifying (i)
that the representations and warranties of the
Company under this Agreement are true and correct as
of the Closing, (ii) that there has been no breach of
any covenant of the Company under this Agreement,
(iii) since the date of this Agreement there has been
no adverse change in the business, financial
condition or prospects of the Company, and (iv) there
is no damage to or destruction of any of the property
of the Company or any of the premises where the
Company maintains offices or conducts its business
that would materially impair the Company's operations
or ability to conduct its business.
(i) SELLER and the Company will be furnished with a
certificate by an officer or director of BUYER
certifying that the representations and warranties of
BUYER under this Agreement are true and correct as of
the Closing and that there has been no breach of any
covenant of BUYER under this Agreement.
(j) Besides BUYER, there will be no other shareholders of
the Company.
(k) BUYER will be furnished with a certificate by an
officer or director of the Company certifying as of
the conclusion of the Closing (i) the banks at which
the Company has accounts, and (ii) the signatories on
those accounts and their authority, all of which
shall be subject to BUYER's approval.
(l) The Company will be furnished with resignations by
any current officers or directors of the Company and
by any officers and directors elected after the date
of this Agreement who will not serve after the
Closing, with a confirmation by each that such person
has no claims whatsoever against the Company; and the
BUYER will be furnished with copies of these.
(m) The parties will furnish each other with certificates
by one of their officers or directors (i) certifying
the adoption by their directors and, if necessary, by
their shareholders, of resolutions authorizing the
execution, delivery and performance of this Agreement
and any other agreements and documents in connection
herewith, and (ii) also certifying the names,
positions and signatures of the persons authorized to
sign on their behalf.
10.2 Except for the certified copy of the Company's Articles of
Incorporation issued by the State of Delaware and the
Certificates of Good Standing, the agreements, certificates,
consents and other documents to be executed and delivered at
the Closing shall be dated the date of the Closing.
10.3 Completion or satisfaction, as the case may be, of all of the
requirements under Section 9.1 (including the correctness of
the statements in the certificates and other documents
delivered) are conditions precedent to completing the Closing
under this Agreement. No part of the Closing under this
Agreement will be deemed completed unless all requirements
under this Agreement shall have been completed or satisfied.
11. Termination.
This Agreement may be terminated and abandoned at any time prior to the
Effective Time:
11.1 By mutual written consent of SELLER and BUYER.
11.2 By BUYER:
(a) if any event shall have occurred as a result of which
any conditions set forth in Articles 3 and 9 are no
longer capable of being satisfied; or
(b) if there has been a breach by SELLER or the Company
of any representation or warranty contained in this
Agreement which breach is not curable, or, if
curable, is not cured within five (5) days after
written notice of such breach is given by Purchaser
to the Shareholders' Representative; or
11.3 By the Company or SELLER:
(a) if any event shall have occurred as a result of which
any condition set forth in Article 6 is no longer
capable of being satisfied; or
(ii) if there has been a breach by BUYER of any
representation or warranty contained in this
Agreement which breach is not curable or, if curable,
is not cured within five (5) days after written
notice of such breach is given by the SELLER to
BUYER; or
11.4 By either BUYER, SELLER or the Company if the Closing has not
occurred by August 31, 2002.
12. Governing Law.
This Agreement will be governed by and construed in accordance with the
law of the State of New York and any action hereunder shall be brought
in New York County, New York.
13. Amendment and Waiver.
13.1 This Agreement may not be amended or terminated except by an
instrument in writing signed by all of the parties hereto.
13.2 No provision of this Agreement and no right or obligation
under this Agreement may be waived except by an instrument in
writing signed by the party waiving the provision, right or
obligation in question.
14. Assignment.
14.1 No party may transfer or assign any of its rights or
obligations under this Agreement and any attempt thereat shall
be null and void.
15. Notices.
15.1 Any notice, request, demand, waiver, consent, approval, or
other communication which is required or permitted to be given
to any party under this Agreement shall be in writing and
shall be given to that party with copy at the addresses or fax
numbers set forth below or, in the event of a change in any
address or fax number, then to such other address or fax
number as to which notice of the change is given:
(a) If to SELLER:
c/o Antonella T. Popoff, Esq.
535 Madison Ave., 12th Floor
New York, NY 10022
Fax No.: (212) 208-2499
(b) If to the Company:
Anthony Richard
BioSource Therapeutics, Inc.
535 Madison Ave, 12th Floor
New York, NY 10027
Fax No.: (212) 421-4299
(c) If to BUYER:
Innovative Technology Acquisition Corp.
144 King Street East
Toronto, Ontario Canada M5R 1G8
Fax No.: 416-594-4466
With a copy to (which shall not constitute notice):
Jonathan D. Leinwand
2500 N. Federal Highway
Fort Lauderdale, FL 33305
Fax No.: (954) 252-4265
15.2 Notice shall be deemed given on receipt.
16. Table of Contents and Section Headings.
Table of contents, any cross references and section headings are for
convenient reference only and shall not affect the meaning or have any
bearing on the interpretation of any provision of this Agreement.
17. Exhibits.
The Exhibits to this Agreement are contained in a separate booklet
signed by SELLER, BUYER and the Company.
18. Entire Agreement.
This Agreement constitutes the entire agreement among the parties with
respect to the matters described herein.
19. Corporate Governance
19.1 The Company shall continue to have a Board of Directors and
will operate as a wholly owned subsidiary of the BUYER. The
Board of Directors shall act in their best business judgment
in determining the capital needs of the Company.
19.2 Two designees of the Company shall have seats on the Board of
Directors of the BUYER. By virtue of the BUYER's ownership of
100% of the voting stock of the Company upon closing, BUYER
shall have complete control of the Board of Directors of the
Company. Notwithstanding the above, the following persons will
become the directors and officers of the Company at Closing
until such time as they may be replaced in accordance with the
Bylaws of the Company at Closing.
Paul Zuromski Director, President, CEO
Anthony P. Richard Director, Treasurer
Antonella T. Popoff Director, Secretary
Arnold Korne Director
Stephen Liebtag Director
20. Independent Advice, Non-Litigation
20.1 Each of the parties acknowledges that such party has received
independent legal advice with respect to the terms and
conditions and effect of this Agreement, or having been
advised to seek independent legal advice, has decided not to
seek independent legal advice and to rely on his/her/its own
judgment.
20.2 The SELLER agrees that it may not commence or continue any
proceedings in any court of law in any jurisdiction against
any person or entity to enforce the obligations of the Buyer
to this agreement, or against any person or entity who might
claim contribution or indemnity from the BUYER, provided that
this release shall not be effective to release any obligations
of confidentiality contained herein.
20.3 The BUYER agrees that it may not commence or continue any
proceedings in any court of law in any jurisdiction against
any person or entity to enforce the obligations of the BUYER
to this Agreement, or against any person or entity who might
claim contribution or indemnity from the BUYER, provided that
this release shall not be effective to release any obligations
of confidentiality contained herein.
20.4 Should the SELLER or the Company default on its obligations
herein to complete any part of the contemplated transactions,
then the BUYER shall be entitled to obtain a judgment against
either the SELLER or the Company or both providing only for
the remedy of specific performance of the Agreement.
20.5 Should the BUYER default on its obligations herein to complete
any part of the contemplated transactions, then the SELLER or
the Company shall be entitled to obtain a judgment against the
BUYER providing only for the remedy of specific performance of
the Agreement.
21. Time of the Essence; Computation of Time.
Time is of the essence of each and every provision of this Agreement.
Whenever the last day for the exercise of any right or the discharge of
any duty under this Agreement shall fall upon Saturday, Sunday or a
federal, public or legal holiday, the party having such right or duty
shall have until 5:00 p.m. on the next succeeding regular business day
to exercise such right or to discharge such duty.
22. Severability.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all
other terms and provisions of this Agreement will nevertheless remain
in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon any such determination that any term
or other provision is invalid, illegal or incapable of being enforced,
the parties hereto will negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner to the end that the transactions
contemplated by this Agreement are consummated to the extent possible.
23. Counterparts.
This Agreement may be executed by each party upon a separate copy, and
in such case one counterpart of this Agreement shall consist of enough
of such copies to reflect the signatures of all of the parties. This
Agreement may be executed in two or more counterparts, each of which
shall be an original, and each of which shall constitute one and the
same agreement. Any party may deliver an executed copy of this
Agreement and of any documents contemplated hereby by facsimile
transmission to another party and such delivery shall have the same
force and effect as any other delivery of a manually signed copy of
this Agreement or of such other documents.
INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SELLER
______________________________________
Antonella T. Popoff, Esq., as Trustee
______________________________________
Anthony P. Richard, an individual
______________________________________
Peter Vansteenkiste, an individual
______________________________________
Rona Taylor, an individual
______________________________________
Antonella T. Popoff, an individual
COMPANY
BioSource Therapeutics, Inc.
By: __________________________________
Anthony P. Richard, President
BUYER
Innovative Technology Acquisition Corp.
By: __________________________________
Name:_________________________________
Title:________________________________
Addendum
Addendum made this 14 day of October 2002 to that certain Share
Purchase Agreement among the shareholders of BioSource Therapeutics, Inc., a
Delaware corporation ("SELLER") and Innovative Technology Acquisition Corp., a
Delaware corporation ("BUYER").
Whereas, from the time of execution of the Share Purchase Agreement until the
date hereof there have been certain changes in the shareholdings of BioSource
Therapeutics, such changes necessitating certain changes to said agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. The parties ratify and reaffirm the Share Purchase Agreement
dated July 30, 2002 except as it is modified herein, such
modifications taking precedence over any clauses to the
contrary of earlier date.
2. Sections 1.1 and 1.2 shall be modified to reflect a closing on
or before October 25, 2002.
3. The total number of shares issued and outstanding of BioSource
Therapeutics shall be amended in all sections to indicate that
there are 1,175 shares issued and outstanding. Shares of ITAQ
to be distributed shall be distributed according to the
attached schedule.
4. Section 19.2 shall be modified to remove Paul Zuromski and
Anthony Richard as officers and/or directors and to add
Stephen Leibtag as President/Director and Rona Taylor as
Director/Treasurer.
5. If a minimum of $500,000 in capital is not raised to implement
the business of BioSource as contemplated in the agreement
then the each party individually may seek to unwind the
transaction by returning the stock of each respective company.
It is the responsibility of the officers and directors of both
ITAQ and BioSource to actively participate in the raising of
such funds.
6. All other provisions of the agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SELLER
______________________________________
Antonella T. Popoff, Esq., as Trustee
______________________________________
Peter Vansteenkiste
______________________________________
Rona Taylor
______________________________________
Antonella T. Popoff, an individual
COMPANY
BioSource Therapeutics, Inc.
By: __________________________________
, President
BUYER
Innovative Technology Acquisition Corp.
By: __________________________________
Randy Lebow, President