SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form 10-KSB
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND
EXCHANGE ACT OF 1934
For the fiscal year ended June 30, 2001
|_| TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES ACT OF 1934 For the transition period from to
Commission File Number 000-24541
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CORGENIX MEDICAL CORPORATION
(Name of Small Business Issuer in its charter)
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Nevada 93-1223466
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(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
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12061 Tejon Street, Westminster, Colorado 80234
(Address of principal executive offices, including zip code)
(303) 457-4345
(Issuer's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Securities registered pursuant to Section 12(g) of the Act: Common
Stock, $.001 Par Value
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes |X| No |_|
Check if no disclosure of delinquent filers in response to Item 405 of
Regulation S-B is contained in this form, and no disclosure will be contained,
to the best of the issuer's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB. |X|
The issuer's revenues for its most recent fiscal year were: $4,229,712 The
aggregate market value of the voting stock held by non-affiliates of the issuer
was $ 3,126,448 as of September 18, 2001.
The number of shares of Common Stock outstanding was 21,306,230 as of September
18, 2001.
Transitional Small Business Disclosure Format. Yes |_| No |X|
DOCUMENTS INCORPORATED BY REFERENCE
Documents Incorporated by Reference: Items 9, 10 and 11 of Part III are
incorporated by reference from the definitive proxy statement of Corgenix
Medical Corporation to be filed within 120 days after June 30, 2001.
PART I
Item 1. Description of Business.
Certain terms used herein are defined in the Glossary that follows at the
end of this Part.
Company Overview
Corgenix Medical Corporation ("Corgenix" or the "Company") is engaged in
two principal areas of the healthcare products business:
o The research, development, manufacture, and marketing of in vitro
(outside the body) diagnostic products for use in disease detection and
prevention (the "Diagnostics Products Business"). We currently sell 142
Diagnostic Products (the "Diagnostic Products") on a worldwide basis to
hospitals, clinical laboratories, commercial reference laboratories, and
research institutions; and
o The sale and distribution of healthcare and related products (the
"Consumer Products") to consumers via e-commerce (the "Consumer
Healthcare Business"). In the fiscal year ended June 30, 2001, sales of
Consumer Products were not significant in the financial performance of
the Company. We did progress significantly in the development stage of
the e-commerce business and opened our first e-commerce site,
www.sports-n-fitness.com ("SNF.com") during June of 2001.
Our corporate headquarters is located in Westminster, Colorado. The
Company was established in May 1998 resulting from a merger (the "Merger")
between REAADS Medical Products, Inc., ("REAADS") a Delaware Corporation, and
Gray Wolf Technologies, Inc., ("Gray Wolf") a Nevada corporation. Prior to May
22, 1998, our business was conducted by and under the name of REAADS Medical
Products, Inc. We have three wholly-owned operating subsidiaries:
o Corgenix, Inc., ("Corgenix, Inc.") (formerly REAADS), established in
1990 and located in Westminster, Colorado. Corgenix, Inc. is
responsible for sales and marketing activities for North America and
Japan, and also conducts product development, product support,
regulatory affairs and product manufacturing of the Diagnostic
Products.
o Corgenix (UK) Ltd., ("Corgenix UK"), incorporated in the United Kingdom
in 1996 as REAADS Bio-Medical Products (UK) Limited ("REAADS UK"), and
is located in Peterborough, England. Corgenix UK manages the Diagnostic
Business' international sales and marketing activities except for
distribution in North America and Japan which is under the
responsibility of Corgenix, Inc.
o Health-outfitters.com, Inc., ("ho.com"), a Colorado corporation
established in 1999, and located in Westminster, Colorado.
Health-outfitters.com manages our Consumer Healthcare Business including
the e-commerce site www.sports-n-fitness.com which opened for business
in the quarter ended June 30, 2001.
The Diagnostics Products Business
Introduction
Our Diagnostics Products Business is managed by Corgenix, Inc. and
Corgenix UK, and includes the research, development, manufacture, and marketing
of in vitro diagnostic products for use in disease detection and prevention. We
sell 142 Diagnostics Products on a worldwide basis to hospitals, clinical
laboratories, commercial reference laboratories, and research institutions. Some
of these are products which we have developed and which we manufacture at our
Colorado facility, and others are products which we purchase from other
healthcare manufacturers ("OEM Products"). All of these products are used in
clinical laboratories for the diagnosis and/or monitoring of five important
areas of health care:
o Autoimmune disease and Antiphospholipid antibody testing (diseases in
which an individual creates antibodies to one's self, for example
systemic lupus erythematosus ("SLE") and rheumatoid arthritis ("RA"));
o Vascular disease (diseases associated with certain types of thrombosis
or clot formation, for example antiphospholipid syndrome, deep vein
thrombosis, stroke and coronary occlusion);
o Infectious diseases (diseases caused by certain bacterial and other
microorganisms, for example gonorrhea, mononucleosis and herpes);
o Liver diseases (cirrhosis and transplanted organ rejection); and
o Miscellaneous testing (pregnancy, fecal occult blood and related
products).
In addition to our current Diagnostic Products, we are actively developing
new laboratory tests in other important diagnostic testing areas. See "-- Other
Strategic Relationships." We manufacture and market to clinical laboratories and
other testing sites worldwide. Our customers include large and emerging health
care companies such as Instrumentation Laboratories, Helena Laboratories, and
Chugai Diagnostics Science ("Chugai" or "CDS"), a wholly owned subsidiary of
Chugai Pharmaceuticals Co., Ltd. ("Chugai Pharma"), which owns approximately
4.3% of the Common Stock of the Company.
See "--Chugai Strategic Relationship."
Most of our products are based on our patented and proprietary application
of Enzyme Linked ImmunoSorbent Assay ("ELISA") technology, a clinical testing
methodology commonly used worldwide. All of our current products are based on
this platform technology in a delivery format convenient for clinical testing
laboratories. The delivery format ("Microplate") allows the testing of up to 96
samples per plate, and is one of the most commonly used formats, employing
conventional testing equipment found in virtually all clinical laboratories. The
availability and broad acceptance of ELISA Microplate products reduces entry
barriers worldwide for our new products that employ this technology and delivery
format. Our products are sold as "tests" that include all of the materials
required to perform the test except for routine laboratory chemicals and
instrumentation. A test using ELISA technology involves a series of reagent
additions into the Microplate triggering a complex immunological reaction in
which a resulting color occurs. The amount of color developed in the final step
of the test is directly proportional to the amount of the specific marker being
tested for in the patient or unknown sample. The amount of color is measured and
the results calculated using laboratory instrumentation. Our technology
specifies a process by which biological materials are attached to the fixed
surface of a diagnostic test platform. Products developed using this unique
attachment method typically demonstrate a more uniform and stable molecular
configuration, providing a longer average shelf life, increased accuracy and
superior specificity than the products of our competitors.
Some of the OEM products which we obtain from other manufacturers and sell
through our distribution network utilize technologies other than our patented
and proprietary ELISA technology.
Our diagnostic tests are intended to aid in the identification of the
causes of illness and disease, enabling a physician to select appropriate
patient therapy. Internally and through collaborative arrangements, we are
developing additional products that are intended to broaden the range of
applications for our existing products and to result in the introduction of new
products.
Since 1990, our sales force and distribution partners have sold over 12
million tests worldwide under the REAADS and Corgenix labels, as well as OEM
products. An integral part of our strategy is to work with corporate partners to
develop market opportunities and access important resources. We believe that our
relationships with current and potential partners will enable us to enhance our
menu of diagnostic products and accelerate our ability to penetrate the
worldwide markets for new products.
We currently use the REAADS trademarks and tradenames in the sale of the
products which we manufacture. These products constitute the majority of our
product sales.
Industry Overview
In vitro diagnostic ("IVD") testing is the process of analyzing the
components of a wide variety of body fluids outside of the body to identify the
presence of markers for diseases or other human health conditions. The worldwide
human health IVD market consists of reference laboratory and hospital laboratory
testing, testing in physician offices and the emerging over-the-counter ("OTC")
market, in which testing is done at home by the consumer.
Traditionally, diagnostic testing has been performed in large, high-volume
commercial or hospital-based laboratories using instruments operated by skilled
technicians. Our products in a Microplate format are designed for such
instrumentation and are marketed to these types of laboratories. The
instrumentation and supportive equipment required to use our ELISA tests is
relatively simple, and typically is used by a laboratory for many different
products.
The IVD industry has undergone major consolidation over the last few
years. As a result, the industry is characterized by a small number of large
companies or divisions of large companies that manufacture and sell numerous
diagnostic products incorporating a variety of technologies. In addition, there
are many small diagnostic companies, which generally have limited resources to
commercialize new products. As a result of technological fragmentation and
customer support requirements, we believe that there may be a substantial
competitive advantage for companies with unique and differentiated technologies
that can be used to generate a broad menu of diagnostic products and that have
developed successful customer support systems.
Strategy
Our primary objective is to apply our proprietary ELISA technology to the
development and commercialization of products for use in a variety of markets.
Our strategies for achieving this objective include the following:
Apply our ELISA Technology to Additional Diagnostic Markets. We have
focused our resources on development of highly accurate tests in the
Microplate format for sale to clinical testing laboratories. We believe we
can expand our market focus with the addition of new tests complementary
to the current product line.
Leverage Sales and Marketing Resources. We maintain a small marketing and
sales organization, which is experienced in selling diagnostic tests into
the laboratory market. We plan to expand this sales organization, adding
distribution channels where appropriate. We will also seek to expand our
product menu with more high value, quality products through internal
development, acquisition or in licensing of complementary products and
technologies.
Continue to Develop Strategic Alliances to Leverage Company Resources. We
have developed, and will continue to pursue, strategic alliances to access
complementary resources (such as proprietary markers, funding, marketing
expertise and research and development assistance), to leverage our
technology, expand our product menu and maximize the use of our sales
force.
Pursue Synergistic Product and/or Technology Acquisitions. We intend to
proactively evaluate strategic acquisitions of companies, technologies and
product lines where we identify a strategic opportunity to expand our core
business while increasing revenues and earnings from these new
technologies.
Expand into Additional Market Segments for Existing Products. We intend to
investigate additional market opportunities for both clinical and research
applications of our existing products.
Products and Markets
We currently sell ELISA tests in major markets worldwide. To date, our
sales force and distribution partners have sold over 12 million tests since we
first received product marketing clearance from the United States Food and Drug
Administration (the "FDA") for the first anti-cardiolipin antibody ("aCL") test
in 1990. Many peer reviewed medical publications, abstracts and symposia have
been presented on the favorable technical differentiation of our tests over
competitive products.
To extend the product offering for current product lines, and to
complement our premium-priced, existing assays, we plan to add products from
strategic partners. Our current product menu, commercialized under the
trademarks "REAADS" and "Corgenix" includes the following:
Autoimmune Disease Products
Our ELISA Autoimmune Disease Product line consists of fifteen products,
including tests for: antinuclear antibodies (ANA) screening, dsDNA, Sm, SM/RNP,
SSA, SSB, Jo-1, Scl-70, Histones, Centromere, Mitochondria, MPO, PR3,
Thyroglobulin and thyroid peroxidase.
We manufacture one of these products; the remainder are manufactured for
us by other companies. The products are used for the diagnosis and monitoring of
autoimmune diseases including RA, SLE, Mixed Connective Tissue Disease,
Sjogren's Syndrome, Dermatopolymyositis and Scleroderma.
These autoimmune disease products are formatted in the ELISA Microplate
format, and are differentiated from the competition by their user convenience.
Historically, diagnostic tests utilized antiquated technologies that presented
significant limitations for the clinical laboratory environment, including
greater labor requirements and the need for a subjective interpretation of the
results. These ELISA autoimmune tests overcome these technology shortfalls,
permitting a clinical laboratory to automate its tests, lowering the
laboratory's labor costs as well as providing objectivity to test result
interpretation.
Antiphospholipid Antibody Testing Products
We manufacture and market eleven products for antiphospholipid antibody
testing, which in the fiscal year ended June 30, 2001 represented over 47% of
our total product sales. These include: aCL IgG, aCL IgA, aCL IgM;
anti-phosphatidylserine ("aPS") IgG, aPS IgA, aPS IgM; anti-(beta)2-Glycoprotein
I ("a(beta)2GPI") IgG, a(beta)2GPI IgA, and a(beta)2GPI IgM; and
anti-Prothrombin ("aPT") IgG and IgM.
These tests are used in the diagnosis of SLE, antiphospholipid syndrome
and thrombosis. Antiphospholipid antibodies are measured in clinical
laboratories primarily using ELISA technology with cardiolipin as the most
commonly used antigen. High levels of these antibodies are seen in venous and
arterial thrombosis, thrombocytopenia and/or recurrent abortion, now considered
the main clinical criteria for the diagnosis of a clinical entity referred to as
the antiphospholipid syndrome. The antiphospholipid syndrome may be seen in
association with an underlying disease (i.e. autoimmune such as SLE or SLE-like
disease), or may be seen in patients without any obvious or apparent disease.
When high serum levels of antiphospholipid antibodies are found in individuals
without any clinical manifestations, it is regarded as an important risk factor
for the development of antiphospholipid syndrome.
The importance of the antiphospholipid syndrome resides in its association
with serious clinical manifestations such as chronic and recurrent venous (deep
vein) thrombosis, as well as arterial thromboembolic disease including heart
attacks, strokes and pulmonary embolism. Thrombocytopenia has been attributed to
the temporary removal of platelets from circulation during a thrombotic episode
(clot formation).
Vascular Disease Products
We market seven tests for vascular diseases. We manufacture four products,
and three others are manufactured for us by other companies. Protein C Antigen
ELISA, Protein S Antigen ELISA, Monoclonal Free Protein S ELISA, von Willebrand
Factor Antigen ELISA, abp von Willebrand Factor Activity Test; GTI Platelet
Factor 4 Test and abp Ristocetin.
These products are useful in the diagnosis of certain clotting and
bleeding disorders including von Willebrand's Disease (Hemophilia B).
Hemostasis (the normal stable condition in which there is neither
excessive bleeding nor excessive clotting) is maintained in the body by the
complex interaction of the endothelial cells of blood vessels, coagulation cells
such as platelets, coagulation factors, lipids (cholesterol) and antibodies
(autoantibodies). All play important roles in maintaining this hemostasis. In
clinical situations in which an individual demonstrates excessive clotting or
bleeding, a group of laboratory tests is typically performed to assess the
source of the disorder using the tests that we market.
Liver Disease Products
We manufacture a test to quantitate hyaluronic acid ("Hyaluronic Acid" or
"HA") in a Microplate format. The product has been distributed through the
Chugai distribution network in Japan under the Chugai Diagnostic Sciences label
since 1996, and through our United Kingdom subsidiary in the United Kingdom
since 1998. On June 30, 2001, we signed a license agreement with CDS whereby we
have the exclusive rights to manufacture and market the HA product worldwide
except for Japan. See "-- Chugai Strategic Relationship."
Hyaluronic Acid is a component of the matrix of connective tissues, found
in synovial fluid of the joints where it acts as a lubricant and for water
retention. It is produced in the synovial membrane and leaks into the
circulation via the lymphatic system where it is quickly removed by specific
receptors located in the liver. Increased serum levels of HA have been described
in patients with rheumatoid arthritis due to increased production from synovial
inflammation, and in patients with liver disease due to interference with the
removal mechanism. Patients with cirrhosis will have the highest serum HA
levels, which correlate with the degree of liver involvement.
Miscellaneous Products
We market products for the detection and diagnosis of certain infectious
disease organisms and other clinical laboratory test. These products are mainly
sold by us in the United Kingdom, and all of the products are manufactured for
us by other companies. These products include test tests for: adenovirus,
helicobacter pylori (the bacteria suspected of causing ulcers), group A
streptococcus, herpes, gonorrhea, mycobacterium tuberculosis (the causative
agent of tuberculosis), syphilis, cryptococcal antigen, toxoplasma,
mononucleosis, cytomegalovirus, varicella zoster, Epstein Barr virus, mumps,
measles and Stat-Crit (for measurement of hemoglobin and hematocrit).
Technology
Our ELISA application technology was developed to provide the clinical
laboratory with a more sensitive, specific, and objective technology to measure
clinically relevant antibodies in patient serum samples. High levels of these
antibodies are frequently found in individuals suffering from various
immunological diseases, and their serologic determination is useful not only for
specific diagnosis but also for assessing disease activity and/or response to
treatment. To accomplish these objectives, our current product line applies the
ELISA technology in a 96-Microplate format as a delivery system. ELISA provides
a solid surface to which purified antigens are attached, allowing their
interaction with specific autoantibodies during incubation. This
antigen-antibody interaction is then objectively measured by reading the
intensity of color generated by an enzyme-conjugated secondary antibody and a
chemical substrate added to the system.
Our technology overcomes two basic problems seen in many other ELISA
systems. First, the material coated onto the plate can be consistently coated
without causing significant alteration of the molecular structure (which ensures
maintenance of immunologic reactivity), and the stability of these coated
antigens on the surface can be maintained (which provides a product shelf life
acceptable for commercial purposes). Our proprietary immunoassay technology is
useful in the manufacture of ELISA test tests for the detection of many analytes
for the diagnosis and management of immunological diseases.
Our technology results in products generally demonstrating performance
characteristics that exceed those of competitive testing procedures. Many
testing laboratories worldwide subscribe to external quality control systems or
programs conducted by independent, third-party organizations. These programs
typically involve the laboratory receiving unknown test samples on a routine
basis, performing certain diagnostic tests on the samples, and providing results
of their testing to the third party. Reports are then provided by the third
party that tells the testing laboratory how it compares to other testing
laboratories in the program. Several of our products are included in a
third-party survey periodically conducted by an unaffiliated entity, and our
products routinely demonstrate the best performance and/or reproducibility when
compared to other manufacturers included in such survey.
Our products typically require less hands-on time by laboratory personnel
and provide an objective, quantitative or semi-quantitative interpretation to
improve and standardize the clinical significance of results. We believe that
our proprietary technology will continue to be the mainstay for future
diagnostic products. Most of the products in development will incorporate our
basic technology.
Additional technologies may be required for some of the newly identified
tests, particularly for the POC business. We believe that, in additional to
internal expertise, most technology and delivery system requirements are
available through joint venture or licensing arrangements or through
acquisition.
Delivery Systems
Most of our current products employ the Microplate delivery system using
ELISA technology. This format is universally accepted in clinical laboratory
testing and requires routine equipment currently available in most clinical
labs.
Sales and Marketing
We currently market and sell our diagnostic products to the traditional
clinical laboratory market, both hospital based and free standing laboratories.
We utilize a diverse distribution program for our products. Our labeled products
are sold directly to testing laboratories in the United States through contract
sales representatives.
Internationally, our labeled products are sold through established
diagnostic companies in Argentina, Australia, Austria, Belgium, Brazil, Canada,
Chile, Denmark, Egypt, Finland, France, Germany, Greece, Guatemala, Hong Kong,
Hungary, India, Ireland, Israel, Italy, Japan, Korea, Kuwait, Lebanon, Malaysia,
Mexico, The Netherlands, Norway, Paraguay, Peru, Portugal, Saudi Arabia,
Singapore, South Africa, South Korea, Spain, Sweden, Switzerland, Thailand,
Turkey, the United Kingdom, and Uruguay. Discussions are underway that are
expected to provide access to additional markets worldwide. Our agreements with
international distribution partners are on terms that are generally terminable
by us if the distributor fails to achieve certain sales targets. We have also
established private labeled product agreements with several United States and
European companies. We have international distribution headquarters in the
United Kingdom and will add direct commercialization and distribution in
selected additional countries as appropriate.
We have an active marketing and promotion program for our diagnostic
testing products. We publish technical and marketing promotional materials,
which we distribute to current and potential customers. We attend major industry
trade shows and conferences, and our scientific staff actively publishes
articles and technical abstracts in peer review journals.
Manufacturing
Our manufacturing process for our products utilizes a semi-automated
production line for the manufacturing, assembly and packaging of our ELISA
Microplate products. Our current production capacity is 10,000 tests per day
with a single eight-hour shift. Since 1990, we have successfully produced over
12 million tests in our Westminster, Colorado facility, and we expect that
current manufacturing facilities will be sufficient to meet expected customer
demand for the foreseeable future.
Our manufacturing operations are fully integrated and consist of raw
material purification, reagent and Microplate processing, filling, labeling,
packaging and distribution. We have considerable experience in manufacturing our
products using our proprietary technology. We expect increases in the demand for
our products and have prepared plans to increase our manufacturing capability
while remaining in compliance with regulatory requirements at acceptable costs
to meet that increased demand, and are in the process of implementation. We also
maintain an ongoing investigation of scale-up opportunities for manufacturing to
meet future requirements. We anticipate that production costs will decline as
more products are added to the product menu in the future, permitting us to
achieve greater economies of scale as higher volumes are attained. We have
registered our facility with the FDA and we operate in compliance with the FDA
Quality System Regulations ("QSR") requirements for our products.
In April 1999, we received ISO 9001: 1994 certification from TUV Product
Service GmbH, a world leader in medical device testing and certification. ISO
9001 represents the international standard for quality management systems
developed by the International Organization for Standardization (ISO) to
facilitate global commerce. To ensure continued compliance with the rigorous
standards of ISO 9001, companies must undergo regularly scheduled assessments
and re-certification every year. The ISO 9001 initiative is an important
component in our commitment to maintain excellence. We received re-certification
in November 1999 and 2000, and are scheduled for a certification inspection in
September 2001 for ISO 9001, ISO 13485 and EN 46001.
Our manufacturing process starts with the qualification of raw materials.
The microplates are then coated and bulk solutions prepared. The components and
the microplates are checked for ability to meet pre-established specifications
by our quality control department. If required, adjustments in the bulk
solutions are made to provide optimal performance and lot-to-lot consistency.
The bulk solutions are then dispensed and packaged into planned component
configurations. The final packaging step in the manufacturing process includes
kit assembly, where all materials are packaged into finished product. The
finished kit undergoes one final performance test by our quality control
department. Before product release for sale, our Quality Assurance department
must verify that all quality control testing and manufacturing processes have
been completed, documented and have met all performance specifications.
The majority of raw materials and purchased components used to manufacture
our products are readily available. We have established good working
relationships with primary vendors, particularly those that supply unique or
critical components for our products. We mitigate the risk of a loss of supply
by maintaining a sufficient supply of antibodies and critical components to
ensure an uninterrupted supply for at least three months. We have also qualified
second vendors for all critical raw materials and believe that we can substitute
a new supplier with regard to any of these components in a timely manner.
However, there can be no assurances that we will be able to substitute a new
supplier in a timely manner, and failure to do so could have a material adverse
effect on our business, financial condition and results of operations.
A significant percentage of our product revenues are derived from sales
outside of the United States. International regulatory bodies often establish
varying regulations governing product standards, packaging and labeling
requirements, import restrictions, tariff regulations, duties and tax
requirements. As a result of our sales in Europe, we have obtained ISO
certification and expect to receive a "CE" mark certification, an international
symbol of quality and compliance with applicable European medical device
directives for certain of our products once the European directive for in vitro
diagnostic products has been finalized.
Since 1990, we have entered into several contract manufacturing agreements
with other companies whereby we manufacture specific products for the partner
company. We expect to continue investigating and evaluating opportunities for
additional agreements.
Chugai Strategic Relationship
Chugai Diagnostics Science, Co. Ltd. is a wholly owned subsidiary of
Chugai Pharmaceutical Co., Ltd., a Tokyo based pharmaceutical company. The
relationship between Corgenix and Chugai was established in June 1993. The
relationship is a multifaceted strategic affiliation that can be summarized
as follows:
Equity Ownership. In 1993, Chugai Pharma purchased common stock of REAADS,
and at September 18, 2001, owned approximately 4.3 % of the Common Stock. Under
the terms of the September 1, 1993 stock purchase agreement, Chugai has certain
rights, including antidilution rights and rights to a board seat on the Corgenix
Board of Directors.
Distribution of Corgenix Products. In 1993, Corgenix and Chugai executed a
distribution agreement (the "Japanese Distribution Agreement") whereby Corgenix
granted to Chugai certain distribution rights in Japan of Corgenix products. It
expired August 26, 2001.
Joint Development of Corgenix Products. In 1993, Corgenix and Chugai
established a joint product development program whereby Corgenix, in
collaboration with Chugai, developed a unique second generation immunodiagnostic
assay for the measurement of HA. The product replaced a first generation HA
product that was being manufactured and distributed in Japan by Chugai. This
product is used to measure HA in serum to aid in the diagnosis of certain liver
diseases and the monitoring of rheumatoid arthritis patients. In 1997, Corgenix
and Chugai executed a contract research agreement whereby Corgenix and Chugai
made certain technical improvements to the HA product, and Chugai provided
certain financial support.
Manufacturing of Corgenix Products. In 1994, Corgenix and Chugai executed
a manufacturing agreement (the "HA Manufacturing Agreement") whereby Corgenix
was granted the exclusive right to manufacture the HA product for Chugai for
sale in Japan. Corgenix began the manufacture of the HA product in 1995 and the
product launched in Japan by Chugai. The HA Manufacturing Agreement has been
amended several times.
HA Product Distribution. In 1997, Corgenix and Chugai executed a
distribution agreement (the "UK Agreement") whereby Corgenix was granted
exclusive distribution rights for the Chugai HA product in the United Kingdom.
The UK Agreement was initially for a two-year period which expired November 17,
1999, with one-year extension rights. The UK Agreement was amended on January 3,
2000, and expired on June 30, 2001 with the execution of the HA License
Agreement (defined below).
HA License Agreement. On June 30, 2001, Corgenix and Chugai executed a
license agreement (the "HA License Agreement") whereby Corgenix was granted
exclusive worldwide rights to manufacture and market the HA product (except for
Japan). The HA License Agreement is initially for a five-year period with
certain extension rights. The HA License Agreement establishes certain
performance requirements for Corgenix, and provides early cancellation of
exclusivity if we do not meet those performance goals. The HA License Agreement
is the only international distribution right currently granted by Chugai to the
Company.
Other Strategic Relationships
In addition to the Chugai strategic relationship, an integral part of our
strategy has been and will continue to be entering into other strategic
alliances as a means of accessing unique technologies or resources or developing
specific markets. The primary aspects of our corporate partnering strategy with
Chugai and other strategic affiliations include:
o Companies that are interested in co-developing diagnostic tests
that use our technology;
o Companies with complementary technologies;
o Companies with complementary products and novel disease markers;
and/or
o Companies with access to distribution channels that supplement our
existing distribution channels.
In furtherance of the foregoing strategies, we have established strategic
relationships with the following companies in addition to Chugai:
Cambridge Life Sciences. Cambridge, a division of Byk Gulden and located
in Cambridge, United Kingdom, is a leading manufacturer of immunology and
microbiology diagnostic tests. In 1993, we entered into an agreement with
Cambridge by which we provide to Cambridge certain products that are sold
worldwide under the Cambridge label. These products are primarily sold in the
United Kingdom, and in the remainder of Europe. We also distribute several
products manufactured by Cambridge through our distribution network.
Helena Laboratories Corporation. Helena, a privately held company located
in Beaumont, Texas, is one of the world market leaders in clinical
electrophoresis instrumentation and technology. In 1993, we entered into a
development and manufacturing agreement with Helena pursuant to which we
developed a series of vascular disease products for joint distribution. Three of
these received FDA clearance in 1997 and one in 1999. We manufacture these
products for worldwide distribution through both the Helena network and our
network. Pursuant to the agreement, Helena has the right to incorporate several
of our current products and technology (both those jointly developed and also
other of our products) into a proprietary Helena instrumentation for sale to
hospitals and clinical laboratories.
American Biochemical & Pharmaceutical Corporation. abp is a privately held
company located in Marlton, New Jersey that sells a line of diagnostic products
in coagulation and vascular medicine. In June 1998, we became a non-exclusive
distributor of abp's von Willebrand Factor Activity in the United States. We
distribute this product under our label through our distribution network,
primarily in the United States. This product complements our expanding line of
vascular disease products. The initial term of the distribution arrangement with
abp expired in June 2001 and has been automatically extended for an additional
one-year term. abp also sells this test under our label through its distribution
network. Under the terms of a separate distribution agreement, abp sells our von
Willebrand Factor Antigen, Protein C, Protein S and Monoclonal Free Protein S
products worldwide under the Corgenix label through their distribution network.
GTI, Inc. GTI is a privately held company located in Brookfield, Wisconsin
that manufactures ELISA diagnostic products. In April 1998, we signed an
agreement with GTI by which we became a non-exclusive distributor of GTI's
Platelet Factor 4 ELISA test kit in the United States. The initial term of the
agreement was one year and has been renewed at our option. This product is also
part of our vascular disease product strategy.
We have established OEM agreements with several international diagnostic
companies. Under these agreements, we manufacture selected products under the
partner's label for worldwide distribution.
Research and Development
We direct our research and development efforts towards development of new
products on our proprietary platform ELISA technology in the Microplate format,
as well as applying our technology to automated laboratory testing systems and
to a rapid test format to address operator ease-of-use and expand our market
opportunities. In that regard, we have organized our research and development
effort into three major areas: (i) new product development, (ii) technology
assessment, and (iii) technical and product support.
Our technical staff evaluates the performance of reagents (prepared
internally or purchased commercially), creates working prototypes of potential
products, performs internal studies, participates in clinical trials, produces
pilot lots of new products, produces a validated method that can be consistently
manufactured, creates documentation required for manufacturing and testing of
new products, and works closely with our quality assurance department to satisfy
regulatory requirements and support regulatory clearance. They are responsible
for assessing the performance of new technologies along with determining the
technical feasibility of market introduction, and investigating the patent /
license issues associated with new technologies.
Our technical staff is responsible for supporting current products on the
market through scientific investigation, and are responsible for design transfer
to manufacturing of all new products developed. They assess the performance and
validate all externally-sourced products.
The technical staff includes individuals skilled in immunology, assay
development, protein biochemistry, biochemistry and basic sciences. We maintain
facilities to support our development efforts at the Westminster, Colorado
headquarters. This group includes individuals skilled in immunology, assay
development, protein biochemistry, biochemistry and basic sciences. Group
leaders are also skilled in planning and project management under FDA-mandated
design control. See "-- Regulation."
During fiscal 2001 and 2000, we spent $357,000 and $348,000, respectively,
for research and development. We expect research and development spending to
increase moderately during 2002.
Products and Technology in Development
We intend to expand our product menu through internal development,
development in collaboration with strategic partners and acquisition or
licensing of new products and technologies. We are currently working with
partners to develop additional tests to supplement the existing product lines.
The following summarizes our current product and technology development
programs:
Antiphospholipid Antibody Testing Products
We are one of the market leaders in development of innovative tests in the
antiphospholipid market, and expect to continue developing products in this area
to ensure our ongoing strong market position. In the fiscal year ended June 30,
1999, we developed three new antiphospholipid products which are more specific
for thrombosis and the antiphospholipid syndrome when incorporated with the
conventional aCL and aPS tests, and are configured for sale to hospital based
and free-standing independent laboratories. Filing of the 510(k) applications
for the new tests was completed and one of the products, anti-phosphatidylserine
IgA, was cleared by the FDA in April 2000. Two additional products in this area,
IgG anti-Prothrombin and IgM anti-Prothrombin (aPT), were cleared by the FDA in
April 2001. Three additional products in this area and one product in the
coagulation area are in various stages of development, and we expect to file
applications with the FDA in 2001-2002. See "-- Regulation."
Automated Laboratory Testing Systems
We believe that the application of our proprietary ELISA technology to
automated laboratory-testing systems will significantly expand the hospital and
specialized laboratory market opportunity through OEM partnerships and direct
sales to high volume testing laboratories. We have several such development
programs pending with strategic partners.
Rapid Test Delivery System
We believe that development of a rapid test delivery technology could
significantly expand our market opportunity. This technology would allow the
introduction of next generation products, which will require a substantially
shorter period to develop, test and submit for regulatory approval. We expect to
add several diagnostic products manufactured for us by other companies to the
product offerings of health-outfitters.com, and are investigating opportunities
to develop this technology internally. If adopted, products targeted for
development and internal manufacturing include pregnancy, diagnosis of certain
infectious diseases, and tests to measure cardiac markers.
Competition
Competition in the human medical diagnostics industry is significant. Our
competitors range from development stage diagnostics companies to major domestic
and international pharmaceutical companies. Many of these companies have
financial, technical, marketing, sales, manufacturing, distribution and other
resources significantly greater than we do. In addition, many of these companies
have name recognition, established positions in the market and long standing
relationships with customers and distributors. The diagnostics industry
continues to experience significant consolidation in which many of the large
domestic and international healthcare companies have been acquiring mid-sized
diagnostics companies, further increasing the concentration of resources.
However, competition in diagnostic medicine is highly fragmented, with no
company holding a dominant position in autoimmune or vascular diseases. There
can be no assurance that new, superior technologies will not be introduced that
could be directly competitive with or superior to our technologies.
Our competitors include Inova Diagnostics, Inc., DIASORIN, Diagnostica
Stago, American Bioproducts, Helena Laboratories Corporation (an existing
licensee of Corgenix technology), Organon Teknika, Helix Diagnostics, Hemagen
Diagnostics, Sigma Diagnostics, The Binding Site and IVAX Diagnostics. We
compete against these companies on the basis of product performance and customer
service.
Patents, Trade Secrets and Trademarks
We have built a strong patent and intellectual property position around
our proprietary application of ELISA technology. We hold five United States
patents that expire beginning in 2001 and ending in 2010. We have no pending
patent applications. The Hyaluronic Acid product is protected by U.S., Japanese
and European patents held by Chugai. As part of the agreements with Chugai, we
have a license to use the Chugai patents to manufacture this product for
worldwide distribution, and marketing rights worldwide except Japan. See "--
Chugai Strategic Relationship."
Patent applications in the United States are maintained in secrecy until
patents issue. There can be no assurance that our patents, and any patents that
may be issued to us in the future, will afford protection against competitors
with similar technology. In addition, no assurances can be given that patents
issued to us will not be infringed upon or designed around by others or that
others will not obtain patents that we would need to license or design around.
If the courts uphold existing or future patents containing broad claims over
technology used by us, the holders of such patents could require us to obtain
licenses to use such technology. See "Part II. Item 6. Management's Discussion
and Analysis -- Forward-Looking Statements and Risk Factors -- Uncertainty of
Protection of Patents, Trade Secrets and Trademarks."
We have registered our trademark "REAADS" on the principal federal
trademark register and with the trademark registries in many countries of the
world. This trademark is eligible for renewal in 2006 and will expire in 2007.
An allowance for the trademark "Corgenix" was received September 2000.
Where appropriate, we intend to obtain patent protection for our products
and processes. We also rely on trade secrets and proprietary know-how in our
manufacturing processes. We require each of our employees, consultants and
advisors to execute a confidentiality agreement upon the commencement of any
employment, consulting or advisory relationship with us. Each agreement provides
that all confidential information developed or made known to the individual
during the course of the relationship will be kept confidential and not be
disclosed to third parties except in specified circumstances. In the case of
employees, the agreements provide that all inventions conceived of by an
employee shall be the exclusive property of the Company.
The majority of our product sales, approximately 70%, for the fiscal year
end June 30, 2001, were products which utilized our proprietary technology.
Regulation
The testing, manufacturing and sale of our products are subject to
regulation by numerous governmental authorities, principally the FDA and foreign
regulatory agencies. The FDA regulates the clinical testing, manufacture,
labeling, distribution and promotion of medical devices, which includes
diagnostic products. We are restricted from marketing or selling diagnostic
products in the United States until clearance is received from the FDA. In
addition, various foreign countries in which our products are or may be sold
impose local regulatory requirements. The preparation and filing of
documentation for FDA and foreign regulatory review can be a lengthy, expensive
and uncertain process.
In the United States, medical devices are classified by the FDA into one
of three classes (Class I, II or III) on the basis of the controls deemed
necessary by the FDA to ensure their safety and effectiveness in a reasonable
manner. Class I devices are subject to general controls (e.g., labeling,
pre-market notification and adherence to QSR requirements). Class II devices are
subject to general and special controls (e.g., performance standards,
post-market surveillance, patient registries and FDA guidelines). Generally,
Class III devices are those that must receive pre-market approval by the FDA to
ensure their safety and effectiveness (e.g., life-sustaining, life-supporting
and implantable devices or new devices that have been found not to be
substantially equivalent to legally marketed devices). All of our current
products and products under development are or are expected to be classified as
Class I or Class II devices.
Before a new device can be introduced in the market, we must obtain FDA
clearance or approval through either clearance of a 510(k) pre-market
notification or approval of a product marketing approval ("PMA") application,
which is a more extensive and costly application. All of our products have been
cleared using a 510(k) application, and we expect that most, if not all, future
products will also qualify for clearance using a 510(k) application.
It generally takes up to 90 days from submission to obtain 510(k)
pre-market clearance but may take longer. The FDA may determine that a proposed
device is not substantially equivalent to a legally marketed device or that
additional information is needed before a substantial equivalence determination
can be made. A "not substantially equivalent" determination, or a request for
additional information, could prevent or delay the market introduction of new
products that fall into this category. For any devices that are cleared through
the 510(k) process, modifications or enhancements that could significantly
affect safety or effectiveness, or constitute a major change in the intended use
of the device, will require new 510(k) submissions. There can be no assurance
that we will be able to obtain necessary regulatory approvals or clearances for
our products on a timely basis, if at all, and delays in receipt of or failure
to receive such approvals or clearances, the loss of previously received
approvals or clearances, limitations on intended use imposed as a condition of
such approvals or clearances, or failure to comply with existing or future
regulatory requirements could have a material adverse effect on our business,
financial condition and results of operations. See "Part II. Item 6.
Management's Discussion and Analysis -- Forward-Looking Statements and Risk
Factors -- Governmental Regulation of Diagnostic Products."
Our customers using diagnostic tests for clinical purposes in the United
States are also regulated under the Clinical Laboratory Information Act of 1988
(the "CLIA"). The CLIA is intended to ensure the quality and reliability of all
medical testing in laboratories in the United States by requiring that any
health care facility in which testing is performed meets specified standards in
the areas of personnel qualification, administration, participation in
proficiency testing, patient test management, quality control, quality assurance
and inspections. The regulations have established three levels of regulatory
control based on test complexity: "waived," "moderately complex" and "highly
complex." Our current ELISA tests are categorized as "moderately complex" tests
for clinical use in the United States. Under the CLIA regulations, all
laboratories performing high or moderately complex tests are required to obtain
either a registration certificate or certification of accreditation from the
"Centers for Medicare and Medicaid Services" ("CMS"), formerly the United States
Health Care Financing Administration ("HCFA"). There can be no assurance that
the CLIA regulations and future administrative interpretations of CLIA will not
have an adverse impact on the potential market for our future products.
We are subject to numerous federal, state and local laws relating to such
matters as safe working conditions, manufacturing practices, environmental
protection, fire hazard control and disposal of hazardous or potentially
hazardous substances. There can be no assurance that we will not incur
significant costs to comply with laws and regulations in the future or that such
laws or regulations will not have a material adverse effect upon our business,
financial condition and results of operations.
Reimbursement
Currently our largest market segment is the hospital based and free
standing independent laboratory market in the United States. Payment for testing
in this segment is largely based on third party payor reimbursement. The
laboratory that performs the test will submit an invoice to the patient's
insurance provider (or the patient if not covered by a program). Each diagnostic
procedure (and in some instances, specific technologies) is assigned a current
procedural terminology ("CPT") code by the American Medical Association. Each
CPT code is then assigned a reimbursement level by CMS. Third party insurance
payors typically establish a specific fee to be paid for each code submitted.
Third party payor reimbursement policies are generally determined with reference
to the reimbursement for CPT codes for Medicare patients, which themselves are
determined on a national basis by CMS.
The Consumer Healthcare Business
Introduction
The Company's subsidiary, ho.com, manages an Internet-based consumer
healthcare business. Our e-commerce site, www.sports-n-fitness.com ("SNF.com"),
became operational in the quarter ended June 30, 2001. The site is a
consumer-focused interactive site including:
o an extensive and expanding line of healthcare-related products available
for convenient purchase and delivery; and
o links to a vast array of healthcare information such as acute ailments,
chronic illnesses, nutrition, fitness and wellness, medical databases,
publications and medical or health related news.
SNF.com is designed to provide easy access to health related products for
the customer. Our mission is to establish SNF.com as a valued source of consumer
healthcare product and information needs via the Internet (the global computer
network). The site is designed to promote independent healthy living - featuring
medical and health information, home diagnostics, nutritional supplements, and
fitness enhancing products. By providing all of these components in one
extensive site, we intend for SNF.com to be the consumer's best choice to supply
their entire healthcare needs. We may add additional websites in the future to
address other opportunities in health care.
We intend to develop a high degree of brand recognition, drive high
volumes of traffic to SNF.com, and acquire and distribute relevant health
information. We expect to expand the network by establishing relationships with
companies and organizations providing healthcare products and services, as well
as those which have the ability to direct large numbers of users to SNF.com. We
expect to create a trusted brand on which consumers will rely for their
healthcare needs.
Industry Overview
Healthcare is the largest segment of the U.S. economy, representing an
annual expenditure exceeding $1.0 trillion. Industry analysts expect that an
increasing percentage of health-related expenditures will be made on-line as the
e-commerce activity in this segment of the economy increases. Accordingly,
companies such as health-outfitters.com that establish a clear brand identity as
a trusted source of on-line consumer healthcare products, services and
information could have a significant opportunity to capitalize on these revenue
sources.
The Internet has become an important alternative to traditional marketing
and sales channels. Advertisers can target very specific demographic groups;
on-line merchants can reach a vast audience, operating with lower costs and
greater economy of scale. Consumers gain greater selections, lower prices and
heightened convenience, compared to conventional retailing. We believe that all
participants in the healthcare industry will benefit from the Internet because
of its unique attributes as an open, low-cost and flexible technology for the
execution of electronic transactions and exchange of information.
Strategy
The business strategy of our website will incorporate the following key
elements:
|X| establish and actively promote the health-outfitters.com and
sports-n-fitness brands;
|X| build SNF.com and attract an increasingly large audience of consumers by
using targeted advertising;
|X| offer an extensive line of unique healthcare related products on the
Internet, with the products coming from high quality vendors;
|X| build an efficient and responsive customer service, order fulfillment
and distribution function to support sales growth while generating a
high degree of user loyalty;
|X| maintain competitive pricing via direct shipping to customers by
suppliers while maximizing gross margin and earnings;
|X| provide an attractive and informative website to deliver advertising in
a highly targeted manner and draw a large number of advertisers who
desire to reach the selected users; and
|X| develop, over time, a profitable e-commerce business model.
We intend to continually develop additional distribution relationships
with retailers, manufacturers and other providers to offer healthcare products
and services. We expect to partner with our vendors for shared advertising
dollars. Vendors will feature their products, and wherever possible, SNF.com
will be listed as the premier Internet source from which to purchase their
products. We will feature regular specials on products, and SNF.com will provide
information on specific healthcare topics relevant to the products.
Products
We intend to make the following types of products available through
SNF.com: Home Diagnostics (pregnancy and fertility, drugs of abuse, infectious
diseases); Nutritionals and Nutraceuticals (health foods, vitamin supplements,
herbal medicines); Home Medical Products including, Wound Care (first aid tests,
pressure relief, dressings); and Sports & Fitness Products (sports medicine and
fitness equipment).
Competition
Although there are other websites that sell selected healthcare products,
most are limited to a single market area and do not combine the variety of
products expected to be offered by SNF. Many of the manufacturers themselves
also have websites that advertise and sell product directly to consumers. The
advantage over these sites is that SNF.com is expected to offer an excellent
selection of unique products, giving the customer the advantage of choosing
products from different manufacturers and the ability to bundle into a single
purchase. This is convenient not only because of time restraints and billing
ease, but it also allows for comparison shopping and gives the customer more
buying power through volume discounts.
Customer Experience
Establishing, retaining, and increasing a satisfied customer base demands
a superior customer experience. Today's on-line shopper is looking for the most
convenient means of acquiring the goods and services needed to suit their
personal needs. The site must provide ease of use, accessibility and overall
value to exceed a variety of consumers' expectations. We intend to implement
several features to ensure this process.
Our website has been designed with speed and convenience as top priority,
providing quick, intuitive and easy navigation. We intend to provide obvious
starting points and clear paths to all segments of the site will be provided,
allowing the first time visitor the ability to easily browse or the experienced
shopper the option of proceeding directly to product categories for quick
purchases. We plan to offer health and medical information along with
recommendations of the best choices of products to fulfill the customer's needs.
Employees (for Entire Entity)
As of September 18, 2001, we employed 41 employees, 39 full time and 2
part-time. Of these, 5 hold advanced scientific or medical degrees. None of
Corgenix's employees are covered by a collective bargaining agreement. We
believe that the Company maintains good relations with our employees.
Item 2. Description of Property.
We currently lease approximately 12,000 square feet of space in one
building in Westminster, Colorado, which is used for our administrative offices,
research and development facilities and manufacturing operations. The lease
expires August 31, 2006. We also lease approximately 1,400 square feet of office
space in Peterborough, Cambridgeshire, United Kingdom under a lease that expires
September 29, 2001 and it is intended to be renewed. We believe that suitable
additional or alternative space will be available on commercially reasonable
terms as needed, and that our existing facilities will be sufficient for our
operational purposes through the end of the leases.
Item 3. Legal Proceedings
We are not a party to any material litigation or legal proceedings.
Item 4. Submission of Matters to a Vote of Security-Holders.
There were no matters submitted during the fourth quarter of the fiscal
year covered by this Report to a vote of stockholders, through the solicitation
of proxies, or otherwise.
GLOSSARY
antibody -- a protein produced by the body in response to contact with an
antigen, and having the specific capacity of neutralizing, hence creating
immunity to, the antigen.
anti-cardiolipin antibodies (aCL) -- a class of antiphospholipid antibody
which reacts with a negatively-charged phospholipid called cardiolipin or a
phospholipid-cofactor complex; frequently found in patients with SLE and other
autoimmune diseases; also reported to be significantly associated with the
presence of both arterial and venous thrombosis, thrombocytopenia, and recurrent
fetal loss.
antigen -- an enzyme, toxin, or other substance, usually of high molecular
weight, to which the body reacts by producing antibodies.
anti-phosphatidylserine antibodies (aPS) -- a class of antiphospholipid
antibody which reacts to phosphatidylserine; similar to aCL; believed to be more
specific for thrombosis.
antiphospholipid antibodies -- a family of autoantibodies with specificity
against negatively charged phospholipids, that are frequently associated with
recurrent venous or arterial thrombosis, thrombocytopenia, or spontaneous fetal
abortion in individuals with SLE or other autoimmune disease.
antiphospholipid syndrome -- a clinical condition characterized by venous
or arterial thrombosis, thrombocytopenia, or spontaneous fetal abortion, in
association with elevated levels of antiphospholipid antibodies and/or lupus
anticoagulant.
assay-- a laboratory test; to examine or subject to analysis.
autoantibody -- an antibody with specific reactivity against a component
substance of the body in which it is produced; a disease marker.
autoimmune diseases -- a group of diseases resulting from reaction of the
immune system against self components.
beta 2 glycoprotein I ((beta)2GPI) -- a serum protein (cofactor) that
participates in the binding of antiphospholipid antibodies.
coagulation-- the process by which blood clots.
cofactor -- a serum protein that participates in the binding of
antiphospholipid antibodies, for example (beta)2GPI.
delivery format -- the configuration of the product. Current Corgenix
products utilize a 96-well microplate system for its delivery format.
hemostasis -- mechanisms in the body to maintain the normal liquid state
of blood; a balance between clotting and bleeding.
hyaluronic acid (HA) -- a polysaccharide found in synovial fluid, serum
and other body fluids and tissues, elevated in certain rheumatological and
hepatic (liver) disorders.
HDL cholesterol -- high density lipoprotein associated with cholesterol.
immunoassay -- a technique for analyzing and measuring the concentration
of disease markers using antibodies; for example, ELISA.
immunoglobulin -- a globulin protein that participates in the immune
reaction as the antibody for a specific antigen.
immunology -- the branch of medicine dealing with (a) antigens and
antibodies, esp. immunity to disease, and (b) hypersensitive biological
reactions (such as allergies), the rejection of foreign tissues, etc.
in vitro -- isolated from the living organism and artificially maintained,
as in a test tube.
in vivo-- occurring within the living organism.
lipids -- a group of organic compounds consisting of the fats and other
substances of similar properties.
platelets -- small cells in the blood which play an integral role in
coagulation (blood clotting).
platform technology -- the basic technology in use for a majority of the
Company's products, in essence the "platform" for new products. In the case of
Corgenix, the platform technology is ELISA (enzyme linked immunosorbent assay).
phospholipids -- a group of fatty compounds found in animal and plant
cells which are complex triglyceride esters containing long chain fatty acids,
phosphoric acid and nitrogenous bases.
protein C -- normal blood protein that regulates hemostasis; decreased
levels lead to thrombosis.
protein S -- normal blood protein that regulates hemostasis; decreased
levels lead to thrombosis.
rheumatic diseases -- a group of diseases of the connective tissue, of
uncertain cause and including rheumatoid arthritis (RA), rheumatic fever, etc.,
usually characterized by inflammation, pain and swelling of the joints and/or
muscles.
serum -- the clear yellowish fluid which separates from a blood clot after
coagulation and centrifugation.
systemic lupus erythematosus (SLE) -- a usually chronic disease of unknown
cause, characterized by red, scaly patches on the skin that tend to produce
scars, frequently affecting connective tissue and involving the kidneys, spleen,
etc.
thrombin -- the enzyme of the blood, formed from prothrombin, that causes
clotting by converting fibrinogen to fibrin.
thrombocytopenia -- a condition in which there is an abnormally small
number of platelets in the circulating blood.
thromboembolism -- the obstruction or occlusion of a blood vessel by a
thrombus.
thrombosis -- coagulation of the blood within a blood vessel of any organ,
forming a blood clot.
tumor markers --- serum proteins or molecules found in high concentrations
in patients with selected cancers.
vascular-- of or pertaining to blood vessels.
von Willebrand's Factor (vWF) -- normal blood protein that regulates
hemostasis; decreased levels lead to abnormal bleeding and increased levels may
produce thrombosis.
PART II
Item 5. Market for Common Equity and Related Stockholder Matters.
The Common Stock is traded on the OTC Bulletin Board (R) under the symbol
"COGX". On September 18, 2001, the last bid price of the Common Stock on the OTC
Bulletin Board (R) as reported by the OTC Bulletin Board (R) was $0.22.
The following table sets forth, for the periods indicated, the high and
low bid prices of the Common Stock as reported on the OTC Bulletin Board (R).
The following quotations reflect inter-dealer prices, without retail mark-up,
markdown or commissions, and may not represent actual transactions.
Stock Price Dates Stock Price
Ranges
High Low
Fiscal Year 2001
Quarter Ended:
September 30, 2000 $0.31 $0.16
December 31, 2000 $0.25 $0.09
March 31, 2001 $0.16 $0.125
June 30, 2001 $0.35 $0.13
Fiscal Year 2000
Quarter Ended:
September 30, 1999 $0.28 $0.13
December 31, 1999 $0.25 $0.09
March 31, 2000 $0.72 $0.19
June 30, 2000 $0.50 $0.22
On September 18, 2001, there were approximately 162 holders of record of
the Common Stock.
To date, we have not paid any dividends on our Common Stock, and the Board
of Directors of the Company does not currently intend to declare cash dividends
on the Common Stock. We instead intend to retain earnings, if any, to support
the growth of the Company's business. Any future cash dividends would depend on
future earnings, capital requirements and the Company's financial condition and
other factors deemed relevant by the Board of Directors. We are restricted from
paying dividends on the Common Stock under the terms of a promissory note in
favor of Vectra Bank ("Vectra") without the consent of Vectra.
Stock Issuance
From January 18, 2001 through June 30, 2001, we sold a total of
2,829,000 shares of Common Stock at $.17544 per share for a total of $496,316 to
13 accredited investors. The sales were made in reliance upon the exemption from
the registration requirements of the Securities Act of 1933, as amended,
provided by Section 4 (2) of the Securities Act. The shares were not registered
under federal or state securities laws, and, therefore, will be "restricted
securities" as such term is defined in Rule 144 promulgated under the Securities
Act. The Company intends to use the proceeds of the private placement to assist
in the market and regulatory development of the Company's HA diagnostic test,
acquire capital equipment, reduce short-term debt, accelerate research and
development of new products and for general working capital.
Issuance of Warrants
On April 12, 2001, we issued warrants to purchase 900,000 shares of common
stock of Corgenix to Bathgate McColley Capital Group, LLC ("Bathgate McColley"),
a consultant to the Company. The warrants were issued to Bathgate McColley in
exchange for financial advisory and investment banking services to be provided
to the Company. The warrants were issued in the form of four separate three year
common stock purchase warrants to purchase an aggregate 900,000 (with a purchase
price of $.001 per warrant for aggregate consideration of $900.00) shares of
Corgenix common stock at an exercise price of $.25 cents per share with
customary anti-dilution and "cashless" exercise provisions and certain stock
price performance goals. The warrants may be assigned to third parties by
Bathgate McColley with the prior consent of Corgenix. The warrants were issued
in reliance upon the exemption from the registration requirements of the
Securities Act of 1933, as amended, provided by Section 4 (2) of the Securities
Act.
Forward-Looking Statements
This Form 10-KSB includes statements that are not purely historical and
are "forward-looking statements" within the meaning of Section 21E of the
Securities Act of 1934, as amended, including statements regarding our
expectations, beliefs, intentions or strategies regarding the future. All
statements other than historical fact contained in this Form 10-KSB, including,
without limitation, statements regarding future product developments, statements
regarding our intent to develop the Consumer Products Business, acquisition
strategies, strategic partnership expectations, technological developments, the
development of health-outfitters.com, the availability of necessary components,
research and development programs and distribution plans, are forward-looking
statements. All forward-looking statements included in this Form10-KSB are based
on information available to us on the date hereof, and we assume no obligation
to update such forward-looking statements. Although we believe that the
assumptions and expectations reflected in such forward-looking statements are
reasonable, we can give no assurance that such expectations will prove to have
been correct or that we will take any actions that may presently be planned.
Item 6. Management's Discussion and Analysis or Plan of Operation.
The following discussion should be read in conjunction with the financial
statements and accompanying notes included elsewhere herein.
General
Since the Company's inception, we have been primarily involved in the
research, development, manufacturing and marketing/distribution of diagnostic
tests for sale to clinical laboratories. We currently market 142 products
covering autoimmune disorders, vascular diseases, infectious diseases and liver
disease. Our products are sold in the United States, the UK and other countries
of the world through our marketing and sales organization that includes contract
sales representatives, internationally through an extensive distributor network,
and to several significant OEM partners.
We manufacture products for inventory based upon expected sales demand,
shipping products to customers, usually within 24 hours of receipt of orders.
Accordingly, we do not operate with a backlog.
Except for the fiscal year ending June 30, 1997, we have experienced
revenue growth since our inception, primarily from sales of products and
contract revenues from strategic partners. Contract revenues consist of
licensing fees, milestone payments, and royalty payments from research and
development agreements with strategic partners.
Beginning in fiscal year 1996, we began adding third-party OEM licensed
products to our diagnostic product line. Currently we sell 128 products licensed
from or manufactured by third party manufacturers. We expect to expand our
relationships with other companies in the future to gain access to additional
products.
Although we have experienced growth in revenues every year since 1990
except for 1997, there can be no assurance that, in the future, we will sustain
revenue growth or maintain profitability. Our results of operations may
fluctuate significantly from period-to-period as the result of several factors,
including: (i) whether and when new products are successfully developed and
introduced, (ii) market acceptance of current or new products, (iii) seasonal
customer demand, (iv) whether and when we receive R&D milestone payments and
license fees from strategic partners, (v) changes in reimbursement policies for
the products that we sell, (vi) competitive pressures on average selling prices
for the products that we sell, (vii) changes in the mix of products that we
sell. and (viii) the acceptance of e-commerce by consumers.
Results of Operations
Years Ended June 30, 2001 compared to 2000
Net sales. Net sales for the year ended June 30, 2001 were $4,230,000, a
19.3% increase from $3,545,000 in 2000 due to continued expansion of our
worldwide distribution network, overall product mix, and the revenue
contribution of new products. Product sales increased in all categories. Sales
in the US increased 17.3%; sales to international distributors increased 24.8%;
and sales to OEM partners increased 17.1%. Sales of Hyaluronic Acid to Chugai
for distribution in Japan decreased 12.6% due to the timing of orders, a
slowdown in the Japanese economy along with Japanese insurance reimbursement
issues. The vast majority of the Company's sales increase for the current fiscal
year was due to a higher average price per unit sold as opposed to increases in
unit volume. This was mainly attributable to increased direct domestic sales
relative to distributor/OEM sales (which generally are sold at lower unit
prices). Sales of products manufactured for us by other companies while still
relatively small, are expected to continue to increase during fiscal 2002. Sales
of products by health-outfitters.com were not significant in 2001 and, since we
envision a slow-growth scenario, are not expected to be significant in 2002.
Cost of sales. Cost of sales increased 6.1% to $1,563,000 in 2001 from
$1,473,000 in 2000, due to the increase in net sales. Gross profit increased to
63.0% in 2001 from 58.4% in 2000 primarily due to increased sales of newer,
higher margin products.
Selling and marketing. Selling and marketing expenses increased 19.6% to
$806,000 in 2001 from $674,000 in 2000 due to increases in commissions expense,
increased advertising expense, and increased license fees and travel-related
expenses associated with the Hyaluronic Acid licensing agreement and various
conventions and trade shows.
Research and development. Research and development expenses increased 2.6%
to $357,000 in 2001 from $348,000 in 2000. Most of this increase came as a
result of increased purchases and development costs of new products, most
notably a joint proof of principle development project. In addition, the Company
had greater research & development costs associated with the end of a product
development cycle with respect to the anti-prothrombin product introduction. An
additional reason for the year-to-year increase was a credit of $43,000 recorded
in fiscal 2000 for previously realized expenses for outside clinical trials
which were later determined to be unnecessary and which were cancelled.
General and administrative. General and administrative expenses increased
51.4% to $1,061,000 in 2001 from $701,000 in 2000, due to increases in payroll
costs in addition to outside services expense such as legal, accounting and
consulting expenses. There was also a slight increase in the provision for bad
debts during the year.
Interest expense. Interest expense decreased 13.4% to $129,000 in 2001
from $149,000 in 2000 due to a continued reduction in our long-term debt and to
reductions in over-all interest rates.
Liquidity and Capital Resources
Cash provided by operating activities was $196,584 for the current fiscal
year compared to $647,222 during the prior fiscal year. Even though net income
for the company increased significantly during the current fiscal year, the cash
provided from operations decreased primarily due to a reduction in equity
instruments issued for services, and the Company's investment in working capital
resulting in an increase in prepaid expenses and other assets, along with a
substantial reduction of accounts payable and other liabilities. The Company
expects this trend to continue as its revenues increase. The Company believes
that uncollectible accounts receivable will not have a significant effect on
future liquidity, as a significant portion of its accounts receivable are due
from enterprises with substantial financial resources.
Net cash used by investing activities, the purchase of equipment, was
$231,559 in fiscal 2001 compared to $472,791 for fiscal 2000. The decrease was
mainly attributable to a reduction in the amount of computer equipment required
by the Company.
Net cash provided by financing activities amounted to $309,434 during
fiscal 2001 compared to net cash used by financing activities of $145,517 in the
prior fiscal year. This substantial increase was due to the private sale of the
Company's common stock, referred to above, amounting to $496,233.
Historically, we have financed our operations primarily through sales of
common and preferred stock. In 2001, we raised $496,316 before offering expenses
through a private sale of common stock.
We have also received financing for operations from sales of diagnostic
products and agreements with strategic partners. In 2001, our accounts payable
decreased 16.2% to $747,000 from $891,000 in 2000 due to a concerted effort on
our part to bring the accounts payable more current, accounts receivable
decreased 4.1% to $586,000 from $611,000 in 2000 because of more timely payment
by our customers.
Our principal sources of liquidity have been cash provided from operating
and financing activities, cash raised from the private sale of common stock
mentioned above, and long- term debt financing, of which $807,368 remained
outstanding as of June 30, 2001. We believe that we will continue investigating
new debt agreements and may sell additional equity securities in fiscal year
2002 to develop the markets and obtain the regulatory approvals for the HA
products (see above), and to pursue all of our strategic objectives. We believe
that our current availability of cash, working capital, and cash flow from
operations are adequate to meet our ongoing needs for at least the next twelve
months.
On June 30, 2001, the Financial Accounting Standards Board ("FASB') issued
Statement of Financial Accounting Standards ("SFAS") No. 141, "Business
Combinations", and SFAS No. 142, "Goodwill and Intangible Assets". Major
provisions of these Statements are as follows: all business combinations
initiated after June 30, 2001 must use the purchase method of accounting; the
pooling of interest method of accounting is prohibited except for transactions
initiated before July 1, 2001; intangible assets acquired in a business
combination must be recorded separately from goodwill if they arise from
contractual or other legal rights or are separable from the acquired entity and
can be sold, transferred, licensed, rented or exchanged, either individually or
as part of a related contract, asset or liability; goodwill and intangible
assets with indefinite lives are not amortized but are tested for impairment
annually, except in certain circumstances, and whenever there is an impairment
indicator; all acquired goodwill must be assigned to reporting units for
purposes of impairment testing and segment reporting; and effective January 1,
2002, goodwill will no longer be subject to amortization. Although it is still
reviewing the provisions of these Statements, management's preliminary
assessment is that the impact of these Statements on the Company's consolidated
financial statements is expected to be immaterial.
The Company is required and plans to adopt the provisions of Statement No.
143 for the quarter ending June 30, 2002. To accomplish this, the Company must
identify all legal obligations for asset retirement obligations, if any, and
determine the fair value of these obligations on the date of adoption. The
determination of fair value is complex and will require the Company to gather
market information and develop cash flow models. Additionally, the Company will
be required to develop processes to track and monitor these obligations. Because
of the effort necessary to comply with the adoption of Statement No. 143, it is
not practicable for management to estimate the impact of adopting this Statement
at the date of this report.
Risk Factors
Certain factors that could cause actual results to differ materially from
those expected include the following:
Losses Incurred; Future Capital Needs; Risks Relating to the
Professional Products Business; Uncertainty of Additional Funding
We have incurred operating losses and negative cash flow from operations
for most of our history. Losses incurred since our inception have aggregated
over $3,736,000, and there can be no assurance that we will be able to generate
positive cash flows to fund our operations in the future or to pursue our
strategic objectives. Assuming no significant uses of cash in acquisition
activities or other significant changes, we believe that we will have sufficient
cash to satisfy our needs for at least the next year. If we are not able to
operate profitably and generate positive cash flows sufficient for both the
diagnostic business and the consumer products business, we may need to raise
additional capital to fund our operations. If we need additional financing to
meet our requirements, there can be no assurance that we will be able to obtain
such financing on terms satisfactory to us, if at all. Alternatively, any
additional equity financing may be dilutive to existing stockholders, and debt
financing, if available, may include restrictive covenants. If adequate funds
are not available, we might be required to limit our research and development
activities, our selling and marketing activities or our plans to develop the
Consumer Products Business, any of which could have a material adverse effect on
the future of the business.
Dependence on Collaborative Relationships and Third Parties for Product
Development and Commercialization
We have historically entered into licensing and research and development
agreements with collaborative partners, from which we derived a significant
percentage of our revenues in past years. Pursuant to these agreements, our
collaborative partners have specific responsibilities for the costs of
development, promotion, regulatory approval and/or sale of our products. We will
continue to rely on future collaborative partners for the development of
products and technologies. There can be no assurance that we will be able to
negotiate such collaborative arrangements on acceptable terms, if at all, or
that current or future collaborative arrangements will be successful. To the
extent that we are not able to establish such arrangements, we could experience
increased capital requirements or be forced to undertake such activities at our
own expense. The amount and timing of resources that any of these partners
devotes to these activities will generally be based on progress by us in our
product development efforts. Usually, collaborative arrangements may be
terminated by the partner upon prior notice without cause and there can be no
assurance that any of these partners will perform its contractual obligations or
that it will not terminate its agreement. With respect to any products
manufactured by third parties, there can be no assurance that any third-party
manufacturer will perform acceptably or that failures by third parties will not
delay clinical trials or the submission of products for regulatory approval or
impair our ability to deliver products on a timely basis.
No Assurance of Successful or Timely Development of Additional Products
Our business strategy includes the development of additional diagnostic
products both for the diagnostic business and consumer products business. Our
success in developing new products will depend on our ability to achieve
scientific and technological advances and to translate these advances into
commercially competitive products on a timely basis. Development of new products
requires significant research, development and testing efforts. We have limited
resources to devote to the development of products and, consequently, a delay in
the development of one product or the use of resources for product development
efforts that prove unsuccessful may delay or jeopardize the development of other
products. Any delay in the development, introduction and marketing of future
products could result in such products being marketed at a time when their cost
and performance characteristics would not enable them to compete effectively in
their respective markets. If we are unable, for technological or other reasons,
to complete the development and introduction of any new product or if any new
product is not approved or cleared for marketing or does not achieve a
significant level of market acceptance, our results of operations could be
materially and adversely affected.
Competition in the Diagnostics Industry
Competition in the human medical diagnostics industry is, and is expected
to remain, significant. Our competitors range from development stage diagnostics
companies to major domestic and international pharmaceutical companies. Many of
these companies have financial, technical, marketing, sales, manufacturing,
distribution and other resources significantly greater than ours. In addition,
many of these companies have name recognition, established positions in the
market and long standing relationships with customers and distributors.
Moreover, the diagnostics industry has recently experienced a period of
consolidation, during which many of the large domestic and international
pharmaceutical companies have been acquiring mid-sized diagnostics companies,
further increasing the concentration of resources. There can be no assurance
that technologies will not be introduced that could be directly competitive with
or superior to our technologies.
Competition in the E-commerce Industry
Competition in the e-commerce industry is, and is expected to remain,
significant. The competitors for the new business range from development stage
internet companies to divisions of larger companies. Many of these companies
have financial, marketing, sales, manufacturing, distribution and other
resources significantly greater than those of us. In addition, many of these
companies have name recognition, established positions in the market and
existing relationships with customers and distributors.
Governmental Regulation of Diagnostics Products
The testing, manufacture and sale of our products is subject to regulation
by numerous governmental authorities, principally the FDA and certain foreign
regulatory agencies. Pursuant to the Federal Food, Drug, and Cosmetic Act, and
the regulations promulgated there under, the FDA regulates the preclinical and
clinical testing, manufacture, labeling, distribution and promotion of medical
devices. We are not able to commence marketing or commercial sales in the United
States of new products under development until we receive clearance from the
FDA. The testing for, preparation of and subsequent FDA regulatory review of
required filings can be a lengthy, expensive and uncertain process.
Noncompliance with applicable requirements can result in, among other
consequences, fines, injunctions, civil penalties, recall or seizure of
products, repair, replacement or refund of the cost of products, total or
partial suspension of production, failure of the government to grant premarket
clearance or premarket approval for devices, withdrawal of marketing clearances
or approvals, and criminal prosecution.
There can be no assurance that we will be able to obtain necessary
regulatory approvals or clearances for our products on a timely basis, if at
all, and delays in receipt of or failure to receive such approvals or
clearances, the loss of previously received approvals or clearances, limitations
on intended use imposed as a condition of such approvals or clearances or
failure to comply with existing or future regulatory requirements could have a
material adverse effect on our business.
Dependence on Distribution Partners for Sales of Diagnostic Products in
International Markets
We have entered into distribution agreements with collaborative partners
in which we have granted distribution rights for certain of our products to
these partners within specific international geographic areas. Pursuant to these
agreements, our collaborative partners have certain responsibilities for market
development, promotion, and sales of the products. If any of these partners
fails to perform its contractual obligations or terminates its agreement, this
could have a material adverse effect on our business, financial condition and
results of operations.
Governmental Regulation of Manufacturing and Other Activities
As a manufacturer of medical devices for marketing in the United States,
we are required to adhere to applicable regulations setting forth detailed good
manufacturing practice requirements, which include testing, control and
documentation requirements. We must also comply with Medical Device Report
("MDR") requirements, which require that a manufacturer report to the FDA any
incident in which its product may have caused or contributed to a death or
serious injury, or in which its product malfunctioned and, if the malfunction
were to recur, it would be likely to cause or contribute to a death or serious
injury. We are also subject to routine inspection by the FDA for compliance with
QSR requirements, MDR requirements and other applicable regulations. The FDA has
recently implemented new QSR requirements, including the addition of design
controls that will likely increase the cost of compliance. Labeling and
promotional activities are subject to scrutiny by the FDA and, in certain
circumstances, by the Federal Trade Commission. We may incur significant costs
to comply with laws and regulations in the future, which may have a material
adverse effect upon our business, financial condition and results of operations.
Regulation Related to Foreign Markets
Distribution of diagnostic products outside the United States is subject
to extensive government regulation. These regulations, including the
requirements for approvals or clearance to market, the time required for
regulatory review and the sanctions imposed for violations, vary from country to
country. We may be required to incur significant costs in obtaining or
maintaining foreign regulatory approvals. In addition, the export of certain of
our products that have not yet been cleared for domestic commercial distribution
may be subject to FDA export restrictions. Failure to obtain necessary
regulatory approval or the failure to comply with regulatory requirements could
have a material adverse effect on our business, financial condition and results
of operations.
Uncertain Availability of Third Party Reimbursement for Diagnostic
Products
In the United States, health care providers that purchase diagnostic
products, such as hospitals and physicians, generally rely on third party
payors, principally private health insurance plans, federal Medicare and state
Medicaid, to reimburse all or part of the cost of the procedure. Third party
payors are increasingly scrutinizing and challenging the prices charged for
medical products and services and they can affect the pricing or the relative
attractiveness of the product. Decreases in reimbursement amounts for tests
performed using our diagnostic products, failure by physicians and other users
to obtain reimbursement from third party payors, or changes in government and
private third party payors' policies regarding reimbursement of tests utilizing
diagnostic products, may affect our ability to sell our diagnostic products
profitably. Market acceptance of our products in international markets is also
dependent, in part, upon the availability of reimbursement within prevailing
health care payment systems.
Uncertainty of Protection of Patents, Trade Secrets and Trademarks
Our success depends, in part, on our ability to obtain patents and license
patent rights, to maintain trade secret protection and to operate without
infringing on the proprietary rights of others. There can be no assurance that
our issued patents will afford meaningful protection against a competitor, or
that patents issued to us will not be infringed upon or designed around by
others, or that others will not obtain patents that we would need to license or
design around. We could incur substantial costs in defending the Company or our
licensees in litigation brought by others. Our business could be adversely
affected.
Risks Regarding Potential Future Acquisitions
Our growth strategy includes the desire to acquire complementary
companies, products or technologies. There is no assurance that we will be able
to identify appropriate companies or technologies to be acquired, to negotiate
satisfactory terms for such an acquisition, or to obtain sufficient capital to
make such acquisitions. Moreover, because of limited cash resources, we will be
unable to acquire any significant companies or technologies for cash and our
ability to effect acquisitions in exchange for our capital stock may depend upon
the market prices for our Common Stock. If we do complete one or more
acquisitions, a number of risks arise, such as short-term negative effects on
our reported operating results, diversion of management's attention,
unanticipated problems or legal liabilities, and difficulties in the integration
of potentially dissimilar operations. The occurrence of some or all of these
risks could have a material adverse effect on our business, financial condition
and results of operations.
Dependence on Suppliers
The components of our products include chemical and packaging supplies
that are generally available from several suppliers, except certain antibodies,
which we purchases from single suppliers. We mitigate the risk of a loss of
supply by maintaining a sufficient supply of such antibodies to ensure an
uninterrupted supply for at least three months. We have also qualified second
vendors for all critical raw materials and believe that we can substitute a new
supplier with respect to any of these components in a timely manner. However,
there can be no assurances that we will be able to substitute a new supplier in
a timely manner and failure to do so could have a material adverse effect on our
business, financial condition and results of operations.
Limited Manufacturing Experience with Certain Products
Although we have manufactured over twelve million diagnostic tests based
on our proprietary applications of ELISA technology, certain of our diagnostic
products in consideration for future development, incorporate technologies with
which we have little manufacturing experience. Assuming successful development
and receipt of required regulatory approvals, significant work may be required
to scale up production for each new product prior to such product's
commercialization. There can be no assurance that such work can be completed in
a timely manner and that such new products can be manufactured cost-effectively,
to regulatory standards or in sufficient volume.
Seasonality of Products; Quarterly Fluctuations in Results of Operations
Our revenue and operating results have historically been minimally subject
to quarterly fluctuations. There can be no assurance that such seasonality in
our results of operations will not have a material adverse effect on our
business.
Dependence on Key Personnel
Because of the specialized nature of our business, our success will be
highly dependent upon our ability to attract and retain qualified scientific and
executive personnel. In particular, we believe our success will depend to a
significant extent on the efforts and abilities of Dr. Luis R. Lopez and
Douglass T. Simpson, who would be difficult to replace. There can be no
assurance that we will be successful in attracting and retaining such skilled
personnel, who are generally in high demand by other companies. The loss of,
inability to attract, or poor performance by key scientific and executive
personnel may have a material adverse effect on our business, financial
condition and results of operations.
Product Liability Exposure and Limited Insurance
The testing, manufacturing and marketing of medical diagnostic devices
entails an inherent risk of product liability claims. To date, we have
experienced no product liability claims, but any such claims arising in the
future could have a material adverse effect on our business, financial condition
and results of operations. Our product liability insurance coverage is currently
limited to $2 million. Potential product liability claims may exceed the amount
of our insurance coverage or may be excluded from coverage under the terms of
our policy or limited by other claims under our umbrella insurance policy.
Additionally, there can be no assurance that our existing insurance can be
renewed by us at a cost and level of coverage comparable to that presently in
effect, if at all. In the event that we are held liable for a claim against
which we are not insured or for damages exceeding the limits of our insurance
coverage, such claim could have a material adverse effect on our business,
financial condition and results of operations.
Risks Related to the Consumer Products Business
New Business Strategy
We established a new wholly owned subsidiary, health-outfitters.com, Inc.,
in December 1999. This subsidiary is focused on sales of consumer healthcare
products primarily through e-commerce using our websites,
www.healthoutfitters.com and www.sports-n-fitness.com. We do not have any
experience in managing internet businesses, and we may not be able to
successfully operate and grow this new business. The demands of attempting to
grow this new business may prevent management from devoting time and attention
to our traditional diagnostic business, and that traditional business may
decline.
The e-commerce healthcare market is a relatively new and unproven
business. Whether we succeed depends upon broad acceptance of internet-based
healthcare product purchasing, as well as our ability to generate brand
awareness and vendor relationships.
Competition in the e-commerce industry is, and is expected to remain,
significant. The competitors for the new business range from development stage
internet companies to divisions of larger companies. Many of these companies
have financial, marketing, sales, manufacturing, distribution and other
resources significantly greater than those of us. In addition, many of these
companies have name recognition, established positions in the market and
existing relationships with customers and distributors.
Other Risks
Limited Public Market; Possible Volatility in Stock Prices; Penny Stock
Rules
There has, to date, been no active public market for our Common Stock, and
there can be no assurance that an active public market will develop or be
sustained. Although our Common Stock has been traded on the OTC Bulletin
Board(R) since February 1998, the trading has been sporadic with insignificant
volume.
Moreover, the over-the-counter markets for securities of very small
companies historically have experienced extreme price and volume fluctuations
during certain periods. These broad market fluctuations and other factors, such
as new product developments and trends in our industry and the investment
markets and economic conditions generally, as well as quarterly variation in our
results of operations, may adversely affect the market price of our Common
Stock. In addition, our Common Stock is subject to rules adopted by the
Securities and Exchange Commission regulating broker-dealer practices in
connection with transactions in "penny stocks." As a result, many brokers are
unwilling to engage in transactions in our Common Stock because of the added
disclosure requirements.
Risks Associated with Exchange Rates
Our financial statements are presented in US dollars. At the end of each
fiscal quarter and the fiscal year, we convert the financial statements of
Corgenix UK, which operates in pounds sterling, into US dollars, and consolidate
them with results from Corgenix, Inc. and health-outfitters.com, Inc. We may,
from time to time, also need to exchange currency from income generated by
Corgenix UK. Foreign exchange rates are volatile and can change in an unknown
and unpredictable fashion. Should the foreign exchange rates change to levels
different than anticipated by us, our business, financial condition and results
of operations may be materially adversely affected.
Item 7. Financial Statements.
The financial statements listed in the accompanying index to the
consolidated financial statements are filed as part of this Annual Report on
Form 10-KSB.
Item 8. Changes In and Disagreements With Accountants on Accounting and
Financial
Disclosure.
None.
PART III
Item 9. Directors, Executive Officers, Promoters and Control Persons;
Compliance With Section 16(a) of the
Exchange Act.
There is hereby incorporated by reference the information to appear under
the caption "Election of Directors" in our proxy statement for our 2001 Annual
Meeting of Shareholders, which will be filed with the Securities and Exchange
Commission within 120 days after June 30, 2001.
Item 10. Executive Compensation.
There is hereby incorporated by reference the information to appear under
the caption "Compensation of Directors and Executive Officers" in our proxy
statement for our 2001 Annual Meeting of Shareholders, which will be filed with
the Securities and Exchange Commission within 120 days after June 30, 2001.
Item 11. Security Ownership of Certain Beneficial Owners and Management.
There is hereby incorporated by reference the information to appear under
the caption "Principal Shareholders of the Company" in our proxy statement for
our 2001 Annual Meeting of Shareholders, which will be filed with the Securities
and Exchange Commission within 120 days of June 30, 2001.
Item 12. Certain Relationships and Related Transactions.
During fiscal 2001, there has not been any transaction, or series of
similar transactions, since the beginning of the Company's last fiscal year, or
any currently proposed transaction, or series of similar transactions, to which
the Company or any of its subsidiaries was or is to be a party, in which the
amount involved exceeds $60,000 and in which any director or executive officer
of the Company, nominee for election as a director, any five percent security
holder or any member of the immediate family of any of the foregoing persons
had, or will have, a direct or indirect material interest.
Item 13. Exhibits and Reports on Form 8-K.
a. Index to and Description of Exhibits
Exhibit
Number Description of Exhibit
2.1 Agreement and Plan of Merger dated as of May 12, 1998 by
and among Gray Wolf Technologies, Inc., Gray Wolf
Acquisition Corp. and REAADS Medical Products, Inc. (filed
as Exhibit 2.1 to the Company's Registration Statement on
Form 10-SB filed June 29, 1998, and incorporated herein by
reference).
2.2 First Amendment to Agreement and Plan of Merger dated as
of May 22, 1998 by and among Gray Wolf Technologies, Inc.,
Gray Wolf Acquisition Corp. and REAADS Medical Products,
Inc. (filed as Exhibit 2.2 to the Company's Registration
Statement on Form 10-SB filed June 29, 1998, and
incorporated herein by reference).
2.3 Second Amendment to Agreement and Plan of Merger dated as of June 17,
1998 by and among the Company and TransGlobal Financial Corporation
(filed as Exhibit 2.3 to the Company's Registration Statement on Form
10-SB filed June 29, 1998, and incorporated herein by reference).
3.1 Articles of Incorporation, as amended (filed as Exhibit 3.1 to the
Company's Registration Statement on Form 10-SB filed June 29, 1998, and
incorporated herein by reference).
3.2 Bylaws (filed as Exhibit 3.2 to the Company's Registration Statement on
Form 10-SB filed June 29, 1998, and incorporated herein by reference.
3.3 Articles of Incorporation of health-outfitters.com, Inc.
dated November 16, 1999 (filed as Exhibit 3.3 to the
Company's filing on Form 10-QSB for the fiscal quarter
ended December 31, 1999).
3.4 Bylaws of health-outfitters.com, Inc. dated November 16,
1999 (filed as Exhibit 3.4 to the Company's filing on Form
10-QSB for the fiscal quarter ended December 31, 1999).
10.1 Manufacturing Agreement dated September 1, 1994 between
Chugai Pharmaceutical Co., Ltd. and REAADS Medical
Products, Inc. (filed as Exhibit 10.1 to the Company's
Registration Statement on Form 10-SB filed June 29, 1998,
and incorporated herein by reference).
10.2 Amendment to the Manufacturing Agreement dated as of
January 17, 1995 between Chugai Pharmaceutical Co., Ltd.
and REAADS Medical Products, Inc. (filed as Exhibit 10.2
to the Company's Registration Statement on Form 10-SB
filed June 29, 1998, and incorporated herein by reference).
10.3 Amendment to Agreement dated November 17, 1997 between
Chugai Diagnostic Science, Co., Ltd. and REAADS Medical
Products, Inc. (filed as Exhibit 10.3 to the Company's
Registration Statement on Form 10-SB filed June 29, 1998,
and incorporated herein by reference).
10.4* License Agreement dated June 30, 2001 between Chugai
Diagnostic Science Co., Ltd. and Corgenix Medical
Corporation.
10.9* Office Lease dated May 5, 2001 between Crossroads West LLC/Decook
Metrotech LLC and Corgenix, Inc.
10.10 Guarantee dated November 1, 1997 between William George Fleming,
Douglass Simpson and Geoffrey Vernon Callen (filed as Exhibit 10.10 to
the Company's Registration Statement on Form 10-SB filed June 29, 1998,
and incorporated herein by reference).
10.11* Employment Agreement dated April 1, 2001 between Luis R.
Lopez and the Company.
10.12* Employment Agreement dated April 1, 2001 between Douglass
T. Simpson and the Company.
10.13* Employment Agreement dated April 1, 2001 between Ann L.
Steinbarger and the Company.
10.14* Employment Agreement dated April 1, 2001 between Taryn G.
Reynolds and the Company.
10.15* Employment Agreement dated April 1, 2001 between Catherine (O'Sullivan)
Fink and the Company.
10.16 Consulting Contract dated May 22, 1998 between Wm. George
Fleming, Bond Bio-Tech, Ltd. and the Company (filed as
Exhibit 10.16 to the Company's Registration Statement on
Form 10-SB filed June 29, 1998, and incorporated herein by
reference).
10.17 Stock Purchase Agreement dated September 1, 1993 between
Chugai Pharmaceutical Co., Ltd. and REAADS Medical
Products, Inc. (filed as Exhibit 10.17 to the Company's
Registration Statement on Form 10-SB filed June 29, 1998,
and incorporated herein by reference).
10.19 Note dated January 6, 1997 between REAADS Medical Products, Inc. and
Eagle Bank (filed as Exhibit 10.19 to the Company's Registration
Statement on Form 10-SB filed June 29, 1998, and incorporated herein by
reference).
10.24 Form of Indemnification Agreement between the Company and its directors
and officers (filed as Exhibit 10.24 to the Company's Registration
Statement on Form 10-SB/A-1 filed September 24, 1998 and incorporated
herein by reference).
10.27 Warrant agreement dated June 1, 2000 between the Company
and Taryn G. Reynolds.
10.30 Employment Agreement dated March 1, 2001 between William H. Critchfield
and the Company (filed as Exhibit 10.30 to the Company's filing on Form
10-QSB for the fiscal quarter ended March 31, 2001).
10.31* Consulting Agreement dated April 10,2001 between Bathgate McColley
Capital Group, LLC and the Company.
10.32* Warrant Agreement dated April 10, 2001 between Bathgate McColley
Capital Group, LLC and the Company.
10.33* Sales Agent Agreement dated May 7, 2001 between Bathgate McColley
Capital Group, LLC and the Company.
21.1 Amended Subsidiaries of the Registrant (filed as Exhibit 21.1 to the
Company's Registration Statement on Form 10-SB filed June 29, 1998).
23.1* Consent of KPMG LLP
23.2* Consent of SR Howell & Co.
* Filed herewith.
----------------------------------------
(b) Reports on Form 8-K.
Form 8-K filed June 25, 2001, summarizing presentation materials of
the Company used on June 26, 2001
in meeting with investors, brokers and analysts.
HYALURONIC ACID LICENSE AGREEMENT
This Agreement is made as of the 30th day of June, 2001,
by and between:
Chugai Diagnostics Science Co., Ltd., a Japanese corporation, having its
principal office at 41-8, Takada 3-chome, Toshima-ku, Tokyo, 171-8545, Japan
("CDS"), and Corgenix Medical Corporation, a Nevadan corporation, having its
principal office at 12061 Tejon Street, Westminster, Colorado 80234, U.S.A.
("Corgenix").
WITNESSETH:
WHEREAS, CDS has entered into a License Agreement dated June 21, 2001 with
Chugai Pharmaceutical Co., Ltd., having its principal office at 1-9, Kyobashi
2-chome, Chuo-ku, Tokyo, Japan ("CSK"), in relation to Patents defined below,
whereby CSK has agreed to grant CDS the right to manufacture, use, promote to
sell and sell the Licensed Product defined below with sub-licenses of such right
to the third parties, and
WHEREAS, Corgenix supplies CDS with Hyaluronic Acid Assay Plate-format kit under
the Manufacturing Agreement dated September 1st, 1994, as amended by an
Amendments dated January 17th 1995 and November 17th, 1997 for CDS' sales and
marketing of such kits in Japan, and
WHEREAS, Corgenix wishes to be granted and CDS wishes to grant a semi-exclusive
sub-license to manufacture, use, promote to sell, and sell the Licensed Product
defined below under the Patents and subject to the terms and conditions set out
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE 1 (DEFINITIONS)
In this Agreement, the following words and expressions have the following
meanings:
1.1 "Effective Date" means the date first above written.
1.2 "Licensed Product" means Hyaluronic Acid Assay Plate-format kit to
be manufactured under the Patents according to the specifications which
CDS consents.
1.3 "Net Sales" means the total invoice price charged by Corgenix and/or
Subsidiaries to non-Subsidiary third parties for the sale of the Licensed
Product, less returns, freight charges, insurance premium and customary
trade discounts actually taken, consumption tax or other taxes levied and
customs duties. If such payments made by non-Subsidiary third parties to
Corgenix and/or Subsidiary are determined in currency other than United
States Dollars, such currency shall be converted into equivalent United
States Dollars at the closing rates which is the bank selling rate for such
currency into United States Dollars quoted by the Bank of Tokyo-Mitsubishi
reported in the Nikkei Shinbun Newspaper on the last business day of each
quarter in which the sales occurred.
1.4 "Party" means CDS or Corgenix; "Parties" means CDS and Corgenix.
1.5 "Patents" means the US Patent No. 5,019,498 issued on May 28, 1991 and
the ten
(10) other patents in Canada and Europe corresponding to the PCT
application
WO8700289.
1.6 "Semi-exclusive Right" means the right which is granted to Corgenix
and/or another company, by CDS, to manufacture, use, promote to sell and
sell the Licensed Product.
1.7 "Subsidiary" means companies that are controlled by Corgenix as of the
Effective Date. For the purpose of this definition, "control" shall mean
direct beneficial ownership of one hundred percent (100%) of the voting
stock or other equity ownership interest of such company.
1.8 "Territory" means worldwide except Japan.
ARTICLE 2 (GRANT OF LICENSE)
CDS hereby grants to Corgenix Semi-exclusive Right to manufacture, use,
promote to sell, and sell the Licensed Product under the license granted by
CSK relating to the Patents in the Territory during the term of this
Agreement. Corgenix shall not further sublicense the said right to any third
parties without prior written consent of CDS, provided, however, that
Corgenix may further sublicense the said right to Subsidiaries without the
said consent of CDS. In the event Corgenix makes a proposal to further
sublicense the said right to a third party, CDS shall respond to Corgenix
within sixty (60) business days from the receipt of such a proposal and such
a consent shall not be unreasonably withheld.
Notwithstanding the above, CDS gives to Corgenix a window period in which
Corgenix is the sole sub-licensee to the Licensed Product which may last for
two (2) years from the Effective Date provided that Corgenix achieves each of
semi-annual milestone target specified in its clinical development and market
development plans which shall be submitted to CDS within sixty (60) days
after the Effective Date and be consented by CDS.
ARTICLE 3 (PATENT MARKING)
Corgenix may sell the Licensed Product in the Territory under its trademark,
provided that Licensed Product shall contain appropriate patent marking of
the Patents on the label.
ARTICLE 4 (REGULATORY APPROVAL)
Corgenix shall be responsible for, and shall bear the expenses of, filing
and prosecuting any application to obtain the required governmental
approvals or consents necessary to manufacture and market the Licensed
Product in the Territory.
ARTICLE 5 (TECHNICAL ASSISTANCE)
5.1 Corgenix may request CDS' technical support concerning the
Patents and the Hyaluronic Acid Assay Plate-format kit in order to enable
Corgenix to obtain the required governmental approvals or consents
necessary to manufacture and market the Licensed Product, and effectively
promote the Licensed Product in the Territory, provided that CDS shall
have its own discretion to respond the said request by Corgenix, and
further provided that Corgenix shall bear the total costs and expenses
incurred to CDS relating to the said support.
5.2 Pursuant to Section 5.1, Corgenix agrees to provide CDS for reference
with a copy of
each label, packaging box or its label, and product insert for the Licensed
Product every time Corgenix makes or revises such materials.
5.3 Notwithstanding the Article 5.1 above, CDS agrees to bear the costs
incurred to CDS in responding to Corgenix's request for a prior written
consent or for advices about any potential modification of the Licensed
Products' quality control ("QC") specifications or any change of the kit
format.
ARTICLE 6 (ROYALTIES AND PAYMENTS)
6.1 In consideration of the grant of the rights and sublicenses by CDS to
Corgenix under this Agreement, Corgenix shall pay to CDS as follows:
6.1.1 Milestone payments of twenty-five thousand United States Dollars
(US$25,000) each shall be paid: (i) within thirty (30) days after the
Effective Date, (ii) within thirty (30) days after the first anniversary
of the Effective Date, (iii) within thirty (30) days after the second
anniversary of the Effective Date, and (iv) within thirty (30) days after
the third anniversary of the Effective Date.
The payment (iv) above shall be paid to CDS unless CDS grants the license
under the Patents to a third party on or before the third anniversary of
the Effective Date. The total amount of one hundred thousand dollars
($100,000) set forth above shall be recognized as the most favorable
situation.
6.1.2 Running royalty of seven percent (7%) of Net Sales of the Licensed
Product sold by Corgenix and its Subsidiaries for each calendar half year
commencing on the Effective Date and thereafter during the term of this
Agreement shall be paid to CDS semiannually within forty-five (45) days
after the ends of every June and December. The royalty rate of seven
percent (7%) shall be recognized as the most favorable rate.
6.2 Payment Method
All payments to CDS under this Agreement, except as otherwise agreed,
shall be remitted in Japanese Yen by telegraphic transfer to the account of CDS,
at a bank in Tokyo designated by CDS. The payment amount in Japanese Yen shall
be determined by currency conversion at the closing rate which is the bank
selling rate for the United States Dollars into Japanese Yen quoted by the Bank
of Tokyo-Mitsubishi reported in the Nikkei Shinbun Newspaper on the last
Japanese business day of the month previous to each telegraphic transfer. If a
payment is delayed, overdue interest rate will be the US Dollar London Interbank
Offered Rate of corresponding overdue period plus three percent (3%) per annum.
6.3 Withholding Tax
The amount of withholding tax levied on any payment to be made by Corgenix
to CDS shall be borne by CDS, provided, however, that all such tax shall
in no event exceed the maximum rate of ten percent (10%) provided for in
the Convention for the Avoidance of Double Taxation and the Prevention of
Fiscal Evasion with respect to Taxes on Income between the Governments of
Japan and the United States of America. Corgenix shall withhold the tax
from such payment to CDS and pay any such tax to the appropriate
governmental authority and thereafter shall send to CDS the tax
certificate and any other applicable documentation evidencing the payment
of such tax.
ARTICLE 7 (RECORDS AND REPORTS)
7.1 Records
7.1.1 Corgenix shall keep complete and accurate records and books in
sufficiently detailed to show the amount of the Licensed Products
manufactured and sold, and the running royalty due and payable to CDS for
five (5) years from each calendar year. Corgenix shall, at the request and
at the expense of CDS, permit CDS or an independent accountant designated
by CDS to have access to such records to examine and to copy, during
ordinary business hours, as may be necessary to verify or determine any
royalties, paid or payable, under this Agreement.
7.1.2 Corgenix shall keep complete and accurate QC testing records of the
Licensed Products for five (5) years from the date on which such records
are documented. Corgenix shall, at the request and at the expense of CDS,
permit CDS to have access to such records to examine during ordinary
business hours.
7.2 Reports
During the term of this Agreement, Corgenix shall provide to CDS at least
once in every six months:
(i) a written report on regulatory approval status referring to the
original plan, (ii) a written report on market development status
referring to the original plan, (iii) a written report on sales
projection, and (iv) a sales report showing the number of kits sold,
calculation for
Net Sales and royalty amount and other data for calculation thereof.
Unless otherwise specified by CDS, Corgenix will deliver to CDS, by the
ends of every July and January, a written report above for the preceding
January-June period and July-December period, respectively.
ARTICLE 8 (IMPROVEMENTS)
The Parties acknowledge and agree that certain inventions and improvements
(collectively "Improvements") may be made by Corgenix through Corgenix's use
of the Patents. Corgenix shall inform CDS of any Improvements, and shall
grant the first refusal right to non-exclusive license to such Improvements
to CDS for the territory of Japan, under terms and conditions to be mutually
agreed upon.
ARTICLE 9 (CONFIDENTIALITY)
Each Party acknowledges that during the course of this Agreement it will
become privy to confidential information of the other Party including
technology, business strategy and other technical, business and financial
matters, including, but not limited to, semi-annual reports specified in
Article 7.2 above. Each Party further acknowledges that the disclosure of
such information to a third party, or the use of such information for
purposes other than the purposes of this Agreement, would cause irreparable
injury to the other Party, which injury might not be compensated for
adequately by money damages. Each Party accordingly agrees, during the term
of this Agreement and five (5) years thereafter, to hold all information
provided by the other Party in strict confidence and not to disclose any such
information to a third party except as expressly permitted by the other
Party, or use such information for any purpose other than the purposes
hereof.
As used herein, the term confidential information shall not include
information that:
(i) is or becomes generally available to the public other than as a
result of disclosure by receiving Party,
(ii) was available to receiving Party on a non-confidential basis
prior to its receipt from disclosing Party,
(iii) becomes available to receiving Party lawfully from a third party that
is not prohibited from disclosing such information, or
(iv) is developed independently by receiving Party as evidenced by written
records other than through knowledge of the disclosed information from
disclosing Party.
ARTICLE 10 (PUBLIC DISCLOSURE)
When Corgenix wants to make any public disclosure which refers directly to
this Agreement, or refers to CDS and/or CSK, other than in routine filings
with the U.S. Securities and Exchange Commission as required by law, Corgenix
shall propose such disclosure to CDS in writing. CDS shall have a right to
review and edit such a proposed draft and a right to veto such a disclosure,
but CDS cannot unduly withhold its consent. CDS shall response to Corgenix
within thirty (30) business days from the receipt of such a proposal.
ARTICLE 11 (WARRANTY AND INFRINGEMENT)
11.1 CDS warrants that CDS has full authority to enter into this Agreement,
provided, however, that CDS makes no warranties, expressed or implied, as
to the merchantability of Licensed Product nor warranties of freedom from
infringement of any patents or other proprietary rights of third parties.
The license may be terminated by CDS if Corgenix contests or disputes the
title or validity of the Patents.
11.2 In the event that any third party claim is made or suit is brought
against Corgenix upon the basis that the manufacture, sale and use of the
Licensed Product infringes a patent in the Territory owned by said third
party, CDS, at its own discretion, will cooperate with Corgenix at
Corgenix' cost as reasonably requested by Corgenix in defense of any such
claims brought against Corgenix.
11.3 During the term of this Agreement, CDS shall cause CSK to maintain the
Patents as valid and effective patents in the Territory and shall be
responsible for all fees required in connection therewith.
11.4 In the event that any third party infringes any of the Patents in the
Territory, then the
Parties hereto shall, and CDS shall request CSK to, cooperate to take
appropriate action against such third party. All costs and expenses
incurred in such action, including attorney's fees, shall be borne and
paid by CDS. If the Parties hereto are successful in abating the
infringement, then any amount recovered shall be first used to reimburse
CDS for the costs and expenses incurred in such action, and shall
thereafter be divided appropriately between CDS and Corgenix with
reference to the relative damages suffered by each Party by reason of the
infringement.
ARITCLE 12 (INDEMNIFICATION)
12.1 Corgenix shall indemnify CDS from and against any damages, liabilities,
expenses to be suffered by CDS with regard to product liability claim by a
third party.
12.2 CDS shall not be responsible and does not hold Corgenix harmless from
any and all claims of Corgenix for consequential damages, including, but
not limited to, loss of profits.
ARTICLE 13 (TERM)
This Agreement, unless earlier terminated pursuant to Article 14 thereof,
shall continue in effect for a period of five (5) years from the Effective
Date, and may be renewed or extended for successive terms pursuant to terms
and conditions mutually agreed upon in writing.
ARTICLE 14 (TERMINATION)
Either Party may, without prejudice to any other rights or remedies,
terminate this Agreement by giving a written notice to the other with
immediate effect, if any of the following events should occur
(i) if either Party fails to make any payment to the other when due under
this Agreement and such failure continues for more than thirty (30) days
after receipt of a written notice specifying the default;
(ii) if either Party fails to perform any other provision of this Agreement
which failure remains uncorrected for more than thirty (30) days after
receipt of a written notice specifying the default;
(iii) if either Party files a petition in bankruptcy, or petition in
bankruptcy is filed against it, or either Party becomes insolvent,
bankrupt, or makes a general assignment for the benefit of creditors, or
goes into liquidation or receivership;
(iv) if either Party ceases or threatens to cease to carry on business or
disposes of the whole or any substantial part of its undertaking or its
assets;
(v) if control of either Party is acquired by any person or group not in
control at the Effective Date.
ARTICLE 15 (NOTICES)
All notices or reports required or permitted under this Agreement shall be in
writing, and shall be given by facsimile, prepaid registered airmail letter
or international courier to the addresses shown below or to such other
addresses as the parties may designate in writing. Notices given by facsimile
shall be deemed to have been received on the day following its dispatch.
To CDS: Attention: President
41-8, Takada 3-chome, Toshima-ku, Tokyo 171-8545 Japan
Facsimile: +81-3-3987-3516
To Corgenix: Attention: President
12061 Tejon Street, Westminster, Colorado 80234 U.S.A.
Facsimile: +1-303-252-9212
ARTICLE 16 (ENTIRE AGREEMENT)
This Agreement constitutes the entire agreement between Parties hereto, and
supersedes any prior written or oral agreements between Parties concerning
the subject matter hereof.
ARTICLE 17 (TITLES)
The titles of the Articles of this Agreement are for reference only, and this
Agreement shall not be construed by reference to such titles.
ARTICLE 18 (ARBITRATION)
Any controversy or claim arising under or in relation to this Agreement shall
be settled exclusively by arbitration in accordance with the Rules of
Procedures of the Japan Commercial Arbitration Association by three (3)
arbitrators appointed in accordance with such Rules. Arbitration shall take
place in Tokyo, Japan. The cost incurred by the arbitration shall be borne
equally by the Parties except for each attorney's fees which shall be borne
by each Party. The decision of the arbitrators shall be final and binding on
the Parties hereto. Judgment upon such award rendered by the arbitrators may
be entered in any court having jurisdiction thereof.
ARTICLE 19 (ASSIGNMENT)
This Agreement or any part of this Agreement may not be assigned or
transferred by either Party without the prior written consent of the other
Party. Any assignment or transfer without such consent shall be null and
void.
ARTICLE 20 (NO WAIVER)
Except where specific time limits are herein provided, no delay on the part
of either Party hereto in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
power or right hereunder preclude other or further exercise thereof or the
exercise of any other power or right. No waiver, modification or amendment of
this Agreement or any provision hereof shall be enforceable against any party
hereto unless in writing, signed by the Party against whom such waiver,
modification or amendment is claimed, and with regard to any waiver, shall be
limited solely to the one event.
ARTICLE 21 (GOVERNING LAW)
This Agreement shall be governed by and construed in accordance with the laws
of Japan.
IN CONSIDERATION OF the foregoing terms and conditions, CDS and Corgenix hereto
have affixed their authorized signatures.
Chugai Diagnostics Science Co., Ltd. Corgenix Medical Corporation
S/ Haruo Kato s/ Douglass T. Simpson
Haruo Kato Douglass T. Simpson
President and CEO President
LEASE AGREEMENT
METROTECH CENTRE
By and between
CROSSROADS WEST LLC/DECOOK METROTECH LLC
Tenants in Common
(herein "Landlord")
and
CORGENIX, INC.
(herein "Tenant")
INDEX
Article
1. Parties
2. Premises
3. Use
4. Term
5. Commencement Date Memorandum
6. Minimum Rent
7. Security Deposit
8. Adjustments
9. Uses Prohibited
10. Compliance with Law
11. Alterations and Additions
12. Repairs
13. Liens
14. Assignment and Subletting
15. Hold Harmless
16. Subrogation
17. Tenant Insurance
18. Utilities Payments
19. Personal Property Taxes
20. Rules and Regulations
21. Holding Over
22. Entry by Landlord
23. Tenant's Default
24. Remedies in Default
25. Default by Landlord
26. Reconstruction
27. Eminent Domain
28. Parking
29. Signs
30. Displays
31. Auctions
32. Hazardous Substances
33. Late Fees and Interest on Late Payments
34. Sale of Premises by Landlord
35. Subordination, Attornment
36. Notices
37. Tenant's Estoppel Certificate
38. Intentionally Omitted
39. Bankruptcy
40. Enlarging the Building Complex
41. Refusal of Consent
42. Demolition
43. General Provisions
EXHIBITS
Exhibit "A" -- Site Plan
Exhibit "B" -- Work Letter
LEASE AGREEMENT
1. Parties. This Lease, dated as of the 5th day of May 2001, is made
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by and between CROSSROADS WEST LLC/DECOOK METRO TECH LLC, tenants in common
(herein called "Landlord") and CORGENIX, INC. (herein called "Tenant").
2. Premises. Landlord does hereby lease to Tenant and Tenant does hereby
lease from Landlord that certain space (herein called "Premises") for the Lease
Term (as hereinafter defined), and any extensions thereof, subject to existing
covenants, conditions, restrictions and encumbrances affecting the Building
Complex (as hereinafter defined). The Premises contains approximately twelve
thousand (12,000) square feet of floor area. The location of said Premises is
crosshatched on Exhibit "A" attached hereto and incorporated herein. Said
Premises are located in the City of Westminster, State of Colorado, and is part
of a six building complex known as MetroTech Centre. Said building complex and
the land on which it is located are collectively referred to herein as the
"Building Complex." The building of which the Premises is a part is referred to
as the "Building."
This Lease is subject to the terms, covenants and conditions set
forth herein and Tenant covenants as a material part of the consideration for
this Lease to keep, perform and abide by all of said terms, covenants and
conditions agreed to herein.
3. Use. Tenant and all subtenants or assignees shall use the Premises for
its office headquarters, laboratory research facilities, production facilities
for the manufacture, packaging and distribution of Tenant's human disease
detection products, and related activities of medical diagnostic business
including sales and shipping of consumer health care products and related
products (the "Permitted Use") and shall not use or permit the Premises to be
used for any other purpose without the prior written consent of Landlord, in
Landlord's sole discretion.
4. Term.
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A. The term of this Lease shall be five (5) years
("Lease Term"), commencing on the Lease Commencement Date (as hereinafter
defined). The parties hereto acknowledge that certain obligations under various
Articles hereof shall commence prior to the Lease Commencement Date, and the
parties agree to be bound by all the terms, covenants and conditions contained
herein at all times subsequent to the date of mutual execution hereof.
B. The "Lease Commencement Date" shall be
September 1, 2001.
C. Tenant covenants and agrees that Tenant shall
be deemed to have accepted the Premises "AS IS". Tenant shall be deemed to have
waived any warranty of condition or habitability, suitability for occupancy, use
or habitation, fitness for a particular purpose or merchantability, express or
implied, relating to the Premises.
5. Commencement Date Memorandum. Upon either party's request, a
"Commencement Date Memorandum" shall be prepared by Landlord, and executed by
both parties which shall set forth the exact commencement and termination dates
of the Lease Term (the "Lease Commencement Date" and "Lease Termination Date,"
respectively). Expiration or termination of this Lease prior to the Lease
Termination Date, pursuant to the terms and conditions of this Lease, shall
hereafter be referred to as "Early Termination."
6. Minimum Rent. Beginning on the Lease Commencement Date and continuing
throughout the entire Lease Term, Tenant agrees to pay to Landlord as monthly
Minimum Rent (the "Minimum Rent"), without notice, demand or offset the sum of
See Addendum Dollars ($ ), in advance, on or before the first day of each and
every successive calendar month during the Lease Term. Minimum Rent for any
period which is for less than one (1) month shall be prorated based upon a
thirty (30) day month. All Rent (as hereafter defined) shall be paid to
Landlord, in lawful money of the United States of America and at such place as
Landlord may from time to time designate in writing.
7. Security Deposit. Tenant has on deposit with Landlord an amount equal
to $9,000.00 (the "Security Deposit"). Said sum shall be held by Landlord as
security for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease to be kept and performed by Tenant during the term
hereof, it being expressly understood that the Security Deposit is not an
advance payment of Rent or a measure of Landlord's damages in the event of
Tenant Default (as hereafter defined). If Tenant defaults with respect to any
provision of this Lease, including, but not limited to the provisions relating
to the payments of Rent, Landlord may (but shall not be required to) use, apply
or retain all or any portion of the Security Deposit for the payment of any Rent
or any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of such Tenant Default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of such Tenant Default all without prejudice to any other remedy or
remedies to which Landlord may be entitled. If any portion of the Security
Deposit is so used or applied, Tenant shall, upon five (5) days notice by
Landlord, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to an amount equal to two (2) monthly installments of Minimum
Rent, then being paid, and Tenant's failure to do so shall be a Tenant Default
under this Lease. Except as required by law, Landlord shall not be required to
keep the Security Deposit separate from its general funds but may commingle it
with other funds, and Tenant shall not be entitled to interest on the Security
Deposit. If Tenant shall fully and faithfully comply with all the terms,
covenants and conditions in this Lease, the Security Deposit or any balance
thereof shall be returned to Tenant (or, at Landlord's option, to the last
assignee of Tenant's interest hereunder) within thirty (30) days following the
Lease Termination Date; provided, however, at Landlord's option, said amount may
be retained by Landlord as security for Tenant's obligations pursuant to Article
8 below, until after determination of the actual Adjustment (as hereafter
defined) for the calendar year in which the Lease Termination Date or Early
Termination occurred. Any amounts owing by Tenant to Landlord pursuant to said
Article 8 may thereafter be deducted from the Security Deposit prior to the
return of the amount to Tenant. In the event of termination of Landlord's
interest in this Lease, Landlord shall transfer any deposit to Landlord's
successor-in-interest, and Landlord shall have no further liability therefor to
Tenant.
8. Adjustments.
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(1) In addition to the Minimum Rent due hereunder, and
beginning on the Lease Commencement Date, Tenant shall pay to Landlord Tenant's
Pro Rata Share (as defined below) of the following items: all costs, expenses,
and disbursements to own, manage, operate, and maintain the Building Complex
(any of which may be furnished by an affiliate of Landlord), including, without
limitation, all real estate taxes, including general or special assessments, of
any kind or nature relating to the ownership or operation of the Building
Complex; costs of insurance which Landlord is required or otherwise elects to
carry with respect to the Building Complex; costs of maintaining, repairing,
replacing, striping, lighting, and cleaning the parking lots, sidewalks,
driveways, landscaping, and all the Common Areas (as hereinafter defined); all
common utility expenses; costs of removal of snow, trash, garbage and other
refuse; costs of providing security for the Building Complex; sanitary sewer and
storm drainage expenses; all costs to maintain and repair the roof and any
common HVAC or other mechanical or electrical systems, if any; interior and
exterior painting supplied by Landlord; costs of fire protection and sprinkler
maintenance; all governmental impositions and surcharges with respect to the
Building Complex; costs of purchasing, leasing, maintaining, and lighting the
individual tenant signs and the Building Complex identification signs; and an
administrative charge equal to 15% of the total costs outlined above
(collectively, the "Adjustments"). Tenant's "Pro Rata Share" shall be equal to a
fraction, the numerator of which is the gross area of the Premises, and the
denominator of which is the gross area of the Building Complex. All measurements
shall be measured from the exterior of the Building perimeter and the middle of
all interior demising walls.
(2) Common Areas. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Building Complex and interior utility raceways within the Premises that
are provided and designated by the Landlord from time to time for the general
non-exclusive use of Landlord, Tenant and other tenants of the Building Complex
and their respective employees, suppliers, shippers, customers, contractors and
invitees, including parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways and landscaped areas.
Landlord hereby grants to Tenant, for the benefit of Tenant and its employees,
suppliers, shippers, contractors, customers and invitees, during the term of
this Lease the non-exclusive right to use, in common with others entitled to
such use, the Common Areas as they exist from time to time, subject to any
rights, powers, and privileges reserved by Landlord under the terms hereof or
under the terms of any rules and regulations or restrictions governing the use
of the Building Complex. Under no circumstances shall the right therein granted
to use the Common Areas be deemed to include the right to store or place any
property, temporarily or permanently, in the Common Areas. Any such placement or
storage shall be permitted only by the prior written consent of Landlord or
Landlord's designated agent, which consent may be revoked at any time. In the
event that any unauthorized storage shall occur, then Landlord shall have the
right, without notice, in addition to such other rights and remedies that it may
have, to remove the property and charge the cost to Tenant, which cost shall be
immediately payable upon demand by Landlord. Landlord or such other person(s) as
Landlord may appoint shall have the exclusive control and management of the
Common Areas and shall have the right, from time to time, to establish, modify,
amend and enforce reasonable rules and regulations with respect thereto.
Landlord shall have the right, in Landlord's sole discretion, from time to time:
(i) to make changes to the Common Areas, including, without limitation, changes
in the location, size, shape and number of driveways, entrances, parking spaces,
parking areas, loading and unloading areas, ingress, egress, direction of
traffic, landscaped areas, walkways and utility raceways; (ii) to close
temporarily any of the Common Areas for maintenance purposes so long as
reasonable access to the Premises remains available; (iii) to designate other
land outside the boundaries of the Building Complex to be a part of the Common
Areas; (iv) to add additional building and improvements to the Common Areas so
long as such additional buildings and improvements are adjacent to the Building
Complex; (v) to use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building Complex, or any portion
thereof; (vi) to grant easements, rights-of-way or other similar rights over or
across the Common Areas; and (vii) to do and perform such other acts and make
such other changes in, to or with respect to the Common Areas and Building
Complex as Landlord may, in the exercise of sound business judgment deem to be
appropriate.
(3) Upon the Lease Commencement Date, Landlord shall submit to
Tenant a statement of the estimated monthly Adjustments for the period from the
Lease Commencement Date to the end of the calendar year, and Tenant shall pay
these Adjustments on a monthly basis concurrently with the payment of the
Minimum Rent. Tenant shall continue to make said monthly payments until notified
by Landlord of a change thereof. By March 1 of each year Landlord shall give
Tenant a statement showing the total Adjustments for the Building Complex for
the prior calendar year and Tenant's Pro Rata Share thereof, prorated from the
Lease Commencement Date. In the event the total of the monthly payments which
Tenant has made for the prior calendar year is less than Tenant's Pro Rata Share
of such Adjustments, Tenant shall pay the difference in a lump sum within ten
(10) days after receipt of such statement from Landlord. Any overpayment by
Tenant shall be credited towards the monthly Adjustments next coming due or, at
Landlord's option, applied toward any then existing arrearage of Rent or other
monies due Landlord pursuant to this Lease. Included in said statement from
Landlord shall be the estimated monthly Adjustments for the following year which
shall be based upon the previous year's actual expenses and Landlord's good
faith estimate of all anticipated increases thereto. Tenant shall pay said
Adjustments together with monthly Minimum Rent as provided herein.
Notwithstanding expiration of the Lease Term hereof, by March 1 of the year
following the calendar year in which the Lease terminated, Landlord shall give
Tenant a statement showing the total Adjustments for the Building Complex for
the year in which the Lease terminated and Tenant's Pro Rata Share thereof,
prorated to the Lease Termination Date or Early Termination. Tenant shall
immediately upon receipt of such statement pay any increase due over the
estimated Adjustments previously paid and, conversely, any overpayment shall be
paid by Landlord to Tenant upon such determination. Failure of Landlord to
submit statements as provided herein shall not be deemed to be a waiver of
Tenant's requirement to pay Adjustments. The Minimum Rent, Adjustments and all
other amounts due and payable to Landlord by Tenant pursuant to this Lease are
sometimes collectively referred to herein as "Rent."
9. Uses Prohibited. Tenant shall not do or permit anything to be done in
the Building Complex nor conduct any business which (i) is not within the
Permitted Use of the Premises; (ii) which will in any way increase the existing
rate of or affect any fire or other insurance for the Building Complex; or (iii)
will cause a cancellation of any insurance policy covering the Building Complex
or any part thereof. Tenant shall not do or permit anything to be done in the
Building Complex which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building Complex or injure or annoy them or
use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose; nor shall Tenant cause, maintain or permit any nuisance
in the Building Complex. Tenant shall not commit or allow to be committed any
waste on the Premises.
Tenant shall in no event bring any trash or refuse into the Building
Complex or Premises which is generated from any other place or location and
shall dispose of all trash generated on the Premises in the ordinary course of
business in such manner as Landlord may from time to time direct.
10. Compliance with Law. Tenant shall not use the Premises, or permit
anything to be done on the Premises, which will in any way conflict with any
law, statute, ordinance, governmental or agency rule or regulation now in force
or which may hereafter be enacted or promulgated. Tenant shall, at its sole cost
and expense, promptly comply with all laws, statutes, ordinances, governmental
or agency rules, regulations or requirements now in force or which may hereafter
be in force and with the requirements of any board of fire underwriters or other
similar bodies now or hereafter constituted relating to or affecting the
condition, use or occupancy of the Premises, excluding structural changes not
related to or affected by Tenant's improvements or acts. The judgment of any
court of competent jurisdiction or the admission of Tenant in any action against
Tenant, whether Landlord be a party thereto or not, that Tenant has violated any
law, statute, ordinance or governmental rule, regulation or requirement, shall
be conclusive of the fact as between Landlord and Tenant.
11. Alterations and Additions. Tenant shall not make or allow to be made
any alterations, additions or improvements to the Premises or the Building, or
any part thereof without first obtaining the written consent of Landlord. Any
alterations, additions or improvements to said Premises, including, but not
limited to, wall covering, paneling and built-in cabinet work, interior walls,
(but excepting movable furniture and trade fixtures, and excluding walk-in
refrigeration units and the custom laboratory cabinets, counters and casework.),
shall at once become a part of the realty and belong to Landlord and shall be
surrendered with the Premises. In the event Landlord consents to the making of
any alterations, additions or improvements to the Premises or Building by
Tenant, the same shall be made by Tenant at Tenant's sole cost and expense and
in compliance with the requirements of all governmental authorities with
jurisdiction over the Building Complex, and shall be performed by a licensed
contractor first approved by Landlord. Tenant, prior to commencing any such
work, shall deliver to Landlord plans, specifications and such other documents
as Landlord may require; evidence of insurance coverage required by Landlord
including Workmen's Compensation; and at Landlord's option, to be exercised in
Landlord's sole discretion, Performance and Labor and Material Payment Bonds
executed by a surety and in a form acceptable to Landlord. All work performed in
the Premises shall be done in such manner as not to disturb or disrupt the
operation of the Building Complex, Landlord, or any other tenant of the Building
Complex. In the event the proposed alterations, in Landlord's judgment, require
review by an architect and/or engineer, the cost of such review shall be paid by
Tenant. Any increase in real estate taxes or insurance premiums on the Building
Complex attributable to such changes, additions, or improvements shall be paid
by Tenant.
Tenant shall not attach, nor allow to be attached, anything to the
exterior of the Premises. Tenant shall not paint any part of the exterior of the
Premises nor allow the exterior of the Premises to be painted, even if such
paint is temporary or washable. Landlord, in its sole discretion, without notice
to Tenant, shall have the right to remove any attachments or paint, and to
charge Tenant for the cost of such removal and the cost to repair any damage
caused to the exterior of the Premises by Tenant plus an additional fifteen
percent (15%) of the total cost of such removal and/or repairs. Tenant shall pay
the above charges along with the next occurring Minimum Rent payment following
Tenant's billing by Landlord.
On the Lease Termination Date, upon ten (10) days prior notice by
Landlord, or upon the Early Termination of the Lease Term, upon three (3) days
prior notice by Landlord, Tenant shall, at Tenant's sole cost and expense,
immediately and with all due diligence, remove any alterations, additions, or
improvements made by Tenant, designated by Landlord to be removed, and Tenant
shall, immediately and with all due diligence, at its sole cost and expense,
repair any damage to the Premises caused by such removal.
12. Repairs.
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A. Tenant shall, at Tenant's sole cost and expense, keep the Premises
and every part thereof in good condition and repair (except as provided in
Article 12.B. below with respect to Landlord's obligations), including, without
limitation, the maintenance, replacement and repair of any storefront, doors,
locks, frames, window casements, glazing, plumbing, pipes, electrical wiring and
conduits, lighting, and heating, ventilating and air conditioning systems.
Tenant shall obtain and maintain in full force and effect throughout the term of
the Lease a Service Contract for repairs and maintenance of said heating,
ventilating and air conditioning systems (the "Service Contract"), which Service
Contract shall conform to the requirements under the warranty, if any, on said
system, and shall supply Landlord with a copy of the Service Contract. However,
Landlord reserves the right, upon advance written notice to Tenant to procure
and maintain the service contract for the heating, ventilating, and air
conditioning; and in such event Tenant shall be charged for the service contract
through its monthly Adjustment payment. If Tenant fails to obtain a Service
Contract, such failure at Landlord's option shall constitute a Tenant Default
and Landlord shall have the right, but not the obligation, to obtain a Service
Contract at Tenant's sole expense, and Tenant shall promptly, upon receipt of
demand therefor, reimburse Landlord for all amounts expended in connection with
obtaining the Service Contract. Tenant shall, upon the Lease Termination Date or
Early Termination, surrender the Premises to Landlord in the same condition as
on the Lease Commencement Date, broom clean, ordinary wear and tear excepted.
Any damage to adjacent premises or Common Areas caused by Tenant's use of the
Premises shall be repaired at the sole cost and expense of Tenant.
B. Notwithstanding the provisions of Article 12.A. above, and
subject to reimbursement as provided in Article 8.B hereof, Landlord shall
maintain and repair the exterior and structural portions of the improvements,
the roof, and all Common Areas, in a manner consistent with a first class
building complex, unless such maintenance and repairs are caused in part or in
whole by the act, neglect, fault or omission by Tenant, its agents, servants,
employees, invitees, or in the event of any damage caused by breaking and
entering, in which cases Tenant shall pay to Landlord the actual cost of such
maintenance and repairs. Landlord shall not be liable for any failure to make
such repairs or to perform any maintenance unless such failure shall persist for
an unreasonable period of time after written notice to Landlord by Tenant.
Except as provided in Article 26 hereof, there shall be no abatement of rent and
no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements to any portion of the Building Complex or the Premises. Tenant
waives the right to make repairs at Landlord's expense under any law, statute or
ordinance now or hereafter in effect. Notwithstanding the foregoing, Tenant
shall have the right to make repairs to the Premises and receive reimbursement
for Tenant's reasonable costs of repair if all of the following conditions are
met:
1. The repairs made by Tenant are repairs that the Landlord is required to
make, at its expense, under the terms of the Lease.
2. The repairs are necessitated by an "Emergency Situation" defined herein as
a situation under which damage to Tenant's property or persons will occur
if repairs are not commenced.
3. Tenant shall have phoned both Landlord's office (or its designated
management office) and its 24-hour emergency line promptly upon Tenant's
discovery of the Emergency Situation and Landlord shall have not responded
and made repairs in a reasonably timely manner.
13. Liens. Tenant shall keep the Premises and the property on which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. No consent granted by
Landlord to Tenant to make any alteration, addition or repairs to the Premises
shall, in any event, be construed as a consent on the part of Landlord to
subject all or any part of the Building Complex or Premises to any lien or
liability under the Mechanic's Lien Law of the State of Colorado. If any lien is
filed, with or without Tenant's knowledge, Tenant shall immediately, at its sole
expense, take whatever action is necessary to cause such lien to be satisfied
and discharged. Landlord may after giving Tenant ten (10) days prior written
notice elect to cure said lien without prior notice, in which event Tenant shall
reimburse Landlord as additional Rent for all costs associated therewith
including but not limited to the amount of the lien, reasonable attorneys' fees,
together with fifteen percent (15%) of all costs so incurred as an
administrative fee. Tenant shall deliver to Landlord, for Landlord's approval,
prior to making any alteration, addition, repairs or maintenance in the
Premises, a list of all contractors, subcontractors, materialmen and suppliers
who shall perform any work or provide any materials or supplies ("Contractors")
in connection with the alteration, addition, repairs or maintenance to the
Premises. Landlord shall have the right, in Landlord's sole discretion, to
disapprove any Contractor, and if Landlord shall so disapprove, Tenant shall
replace the disapproved Contractor with a Contractor reasonably acceptable to
Landlord. Landlord shall have the right to post notices in the Premises pursuant
to C.R.S. ss. 38-22-105, as amended from time to time, or pursuant to any
comparable or other provision for protection of Landlord's interest in the
Premises and the Building Complex, and to take all other action as Landlord may
desire in order for Landlord to comply with said C.R.S. ss. 38-22-105 or such
other provisions.
14. Assignment and Subletting. Tenant shall not either voluntarily, or by
operation of law, sell, assign, transfer, mortgage, pledge, hypothecate or
encumber the Premises or Tenant's leasehold interest therein, and shall not
sublet the Premises or any part thereof, or any right or privilege appurtenant
thereto, or allow any other person (the employees, agents, servants and invitees
of Tenant excepted) to occupy or use said Premises, or any portion thereof,
without first obtaining the written consent of Landlord. Any transfer by
operation of law, sale or other transfer of fifty percent (50%) or more of the
stock of Tenant, if Tenant is a corporation, or transfer of any general
partnership interests in Tenant if Tenant is a partnership, or a transfer of all
or substantially all of Tenant's assets, shall constitute a prohibited
assignment within the meaning of this Article 14. Notwithstanding anything to
the contrary contained in the foregoing, Tenant shall have the right to assign
this Lease to an affiliate, without Landlord's consent. Landlord's consent to
any assignment or subletting shall not be unreasonably withheld provided that
(1) the assignee's use is in compliance with all the terms, conditions and
provisions of the Lease, (2) the proposed assignee is a business similar in
character to the preponderance of other tenants in the Building Complex, and (3)
the proportion of the Premises devoted to office space as related to space
devoted to other uses is similar to that of Tenant. It shall not be unreasonable
for Landlord to refuse its consent to any tenant whose use would require
delivery or pick up by semi-trailer trucks. A consent by Landlord to any
assignment, subletting, occupation or use by any other person shall not be
deemed to be a consent to any subsequent assignment, subletting, occupation or
use by any other person. Consent to any such assignment or subletting shall in
no way relieve Tenant of any liability under this Lease. Any such assignment or
subletting without Landlord's consent shall be void, and shall, at the option of
the Landlord, constitute a Tenant Default under the terms of this Lease. Tenant
shall give Landlord at least thirty (30) days prior notice of any such request
which notice shall include the name and address of the proposed assignee or
subtenant, all financial information available with respect to said proposed
party and any other documentation reasonably required by Landlord.
In the event that Landlord shall consent to a sublease or assignment
hereunder, Tenant shall pay Landlord a fee of Five Hundred Dollars ($500.00).
15. Hold Harmless. Tenant hereby agrees to release, indemnify and hold
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harmless Landlord and its agents, partners, shareholders, directors,
officers, servants and employees from and against:
A. any and all claims arising from Tenant's use of the
Premises or from the conduct of its business or from any activity, work, or
other action permitted or suffered by Tenant or its officers, agents,
employees on the Premises and/or the Building Complex;
B. any and all claims arising from any breach or default of the
terms, covenants and conditions of this Lease, or arising from any act or
negligence of Tenant and its officers, agents, employees, guests, or invitees,
and from all costs, attorneys' fees, and liabilities incurred in the defense of
any claim, action, or proceeding brought thereon. In case any action or
proceeding is commenced against Landlord for any reason relating to any such
claim or arising out of or in any way related to this Lease, Tenant, upon notice
from Landlord, shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of loss, theft, misappropriation, or damage to
property or injury to persons on the Premises and/or the Building Complex, from
any cause; and Tenant hereby waives all claims with respect thereto against
Landlord except for claims arising from Landlord's gross negligence or the gross
negligence of Landlord's employees, agents, and contractors. Tenant shall give
prompt notice to Landlord in case of casualty or accidents on the Premises
and/or the Building Complex.
Landlord, or its agents, partners, shareholders,
directors, officers, servants and employees shall not be liable for any loss or
damage to persons or property resulting from fire, explosion, steam, gas,
electricity, noxious odor, noise, water or rain which may leak from any part of
the Building Complex including the pipes, equipment, plumbing fixtures, roof,
street, subsurface or from any other place, or for any other cause whatsoever,
except personal injury caused by the gross negligence of Landlord, and its
agents, or employees. Landlord, or its agents, shall not be liable for any
latent defects in the Premises.
16. Subrogation. Notwithstanding anything to the contrary contained
herein, Landlord and Tenant hereby mutually waive and release their respective
rights of recovery against each other for (i) any loss on their respective
property capable of being insured against by "all risk" insurance coverage
whether carried or not, and (ii) all loss, cost, damage or expense arising out
of or due to any interruption of business (regardless of the cause therefore),
increased or additional costs of operation of business or other costs or
expenses which are capable of being insured against under business interruption
insurance whether carried or not. Each party shall obtain said waiver from its
insurance carrier and any special endorsements, if required by its insurer, to
evidence compliance with the aforementioned waiver and shall bear the cost
thereof.
17. Tenant Insurance. Tenant shall, at Tenant's expense, obtain and keep
in full force during the Lease Term, a policy of comprehensive public liability
insurance insuring Landlord, any mortgagees of Landlord, and Tenant against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall have single
limits of not less than $1,000,000.00 for injury or death of any person or
persons in any one accident or occurrence. Such insurance shall further insure
Landlord and Tenant against liability for property damage of at least
$1,000,000.00, with endorsements for assumed contractual liability with respect
to liabilities assumed by Tenant under the provisions of this Lease. Landlord
shall have the right to cause such limits to be increased from time to time
based upon limits then customarily required of tenants in similar building
complexes. The limit of any such insurance shall not, however, limit the
liability of Tenant hereunder. Tenant may provide this insurance under a blanket
policy, provided that said insurance shall have a landlord's protective
liability endorsement attached thereto. If Tenant shall fail to procure and
maintain said insurance, Landlord may, but shall not be required to, procure and
maintain same at the expense of Tenant and Tenant shall reimburse Landlord for
same immediately upon demand as additional Rent. Insurance required hereunder
shall be obtained from companies satisfactory to Landlord. Tenant shall maintain
property damage insurance for its trade fixtures, stock and all property located
on the Premises for the full replacement value thereof. Tenant shall deliver to
Landlord, prior to right of entry and thereafter at least thirty (30) days prior
to expiration thereof, copies of all insurance policies required herein or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Landlord. No policy shall be cancelable without
thirty (30) days written notice to Landlord, or subject to reduction of
coverage. All such policies shall be written as primary policies not
contributing with or in excess of coverage which Landlord may carry.
18. Utilities Payments.
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A. Payment for Service. Tenant shall pay for all gas,
electricity, water and sewer charges, telephone service and all other services
and utilities supplied to the Premises, together with any taxes and deposits
thereon. If any such service or utility is not separately metered to Tenant,
Tenant shall pay a reasonable proportion to be determined by Landlord of all
charges jointly metered with other tenants. If Landlord determines that Tenant
uses a disproportionately large amount of any such service or utility, Landlord
shall have the right in its discretion, at Tenant's expense, to install a check
meter to assist Landlord in the foregoing allocation. No failure or
discontinuance of any service pursuant to this Article 18 shall result in any
liability of Landlord whatsoever to Tenant, or be deemed to be a constructive
eviction or a disturbance of Tenant's use of the Premises.
B. Interruption of Service. Interruptions of any service referred to
in this Article 18, in whole or in part, caused by repairs, maintenance,
improvements, alterations, or any other causes, shall not be deemed an eviction
or disturbance of Tenant's use or possession of the Premises or any part
thereof, or render Landlord liable for damages to Tenant for interruption of its
business or for any other reason whatsoever, and Tenant shall not be entitled to
any abatement or reduction of Rent or to any other relief from performance of
Tenant's obligations under this Lease unless such interruption is caused by the
gross negligence or willful misconduct of Landlord. Without limiting the
foregoing, the parties agree that compliance with any mandatory or voluntary
energy conservation measures or other legal requirements instituted by any
governmental authority shall not be considered a violation of any terms of this
Lease and shall not entitle Tenant to terminate this Lease or obtain abatement
or reduction of Rent hereunder. Landlord shall give Tenant reasonable advance
notice of any scheduled interruption of utilities service and shall endeavor to
minimize the duration of any such interruption.
19. Personal Property Taxes. Tenant shall pay before delinquency, any and
all taxes levied or assessed during the Lease Term upon Tenant's leasehold
improvements, equipment, furniture, fixtures, and any other personal property
located in the Premises ("Personal Property"). In the event any or all of the
Personal Property shall be assessed and taxed with the real property, Tenant
shall pay to Landlord its share of such taxes within ten (10) days notice by
Landlord setting forth the amount of such taxes applicable to Personal Property.
20. Rules and Regulations. Tenant shall faithfully observe and comply with
the rules and regulations that Landlord shall from time to time establish and
adopt with respect to the operation of the Building Complex. Landlord shall have
the right to rescind, waive, modify and/or amend any such rules and regulations
at any time or from time to time. Any default by Tenant under any such rules and
regulations shall be a Tenant Default, entitling Landlord to exercise all its
rights and remedies arising as a result thereof. The rules and regulations may
include, but shall not be limited to, (i) the restricting of employee parking to
a limited, designated area or areas, and (ii) the regulation of the removal,
storage and disposal of Tenant's refuse and other rubbish at the sole cost and
expense of Tenant. The rules and regulations shall be binding upon Tenant upon
delivery of a copy thereof to Tenant. All rules and regulations shall apply to
all of the Tenants in the building complex. Any violation of the rules and
regulations by any other tenant of the Building Complex, or Landlord's failure
to enforce same, shall not constitute a waiver of Tenant's duty to comply with
the rules and regulations.
21. Holding Over. Tenant shall vacate the Premises upon the Lease
Termination Date or Early Termination, or on the date specified in any
judicially ordered demand for possession by Landlord after Tenant Default.
Tenant shall reimburse Landlord for and indemnify Landlord against all damages
incurred by Landlord from any delay by Tenant in vacating the Premises. If
Tenant shall hold over after the Lease Termination Date or Early Termination,
without a written agreement with Landlord, Tenant's occupancy of the Premises
shall be a "month-to-month" tenancy subject to all of the terms, covenants and
conditions of this Lease, except that the monthly installments of Minimum Rent
shall be increased to two hundred percent (200%) of the Minimum Rent immediately
prior to the termination. However, nothing contained herein shall give Tenant
the right to hold over at any time, and Landlord may exercise any and all
remedies at law or equity to recover possession of the Premises, as well as to
collect any damages incurred by Landlord due to failure by Tenant to vacate the
Premises.
22. Entry by Landlord. Landlord reserves, and shall during normal business
hours and with reasonable notice to Tenant have, the right to enter the Premises
to inspect the same, to submit said Premises to prospective purchasers, lenders,
or tenants, to post notices of non-liability, to repair the Premises and any
portion of the Building Complex of which the Premises are a part that Landlord
may deem necessary or desirable, without abatement of Rent, and may for that
purpose erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, provided that the
entrance to the Premises shall not be unreasonably blocked thereby, and further
provided that the business of Tenant shall not be interfered with unreasonably.
Tenant hereby waives any claim for damages or for any injury or inconvenience to
or interference with Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises, and any other loss occasioned thereby. Landlord shall have the
right to use any and all means which Landlord may deem proper to open the doors
in an emergency, in order to obtain entry to the Premises without liability to
Landlord. Any entry to the Premises by Landlord shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into, or
a detainer of, the Premises, or an eviction, constructive or otherwise, of
Tenant from the Premises or any portion thereof. Nothing contained herein shall
prohibit the Landlord from entering the Premises in the event of an emergency.
23. Tenant's Default. The occurrence of any one or more of the
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following events shall constitute a default and breach of this Lease by
Tenant ("Tenant Default"):
A. Tenant's failure to take possession of the Premises on
the Lease Commencement Date or the vacation or abandonment of the Premises by
Tenant during the Lease Term.
B. The failure of Tenant to make any payment of Rent or any
other payment required to be made by Tenant hereunder, including, without
limitation, obligations to pay Landlord or Landlord's contractors for any work
performed pursuant to the Work Letter or any work performed subsequent thereto,
on the due date, where such failure shall continue for a period of three (3)
days after such payment is due.
C. The failure by Tenant to observe or perform any of the
covenants, conditions and provisions of this Lease to be observed or performed
by the Tenant, other than described in Article 23.B. above, where such failure
shall continue for a period of five (5) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of such failure is
such that more than five (5) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
said five (5) day period, thereafter diligently prosecutes such cure to
completion, and such cure is completed within thirty (30) days.
D. The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Tenant of
a petition to have Tenant adjudged a bankrupt, or a petition or reorganization
or arrangement under any law relating to bankruptcy; or the appointment of a
trustee or a receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease; or the
failure of Tenant or of any of the partners of Tenant to generally pay their
debts as they become due.
24. Remedies in Default. Subject to Colorado statutes, upon the occurrence
of a Tenant Default, Landlord shall have the option to do any one or more of the
following without any notice or demand, as often as is deemed necessary by
Landlord, in addition to and not in limitation of any other remedy permitted by
law, in equity or under this Lease:
A. Landlord may, but shall not be obligated to do so, and
without releasing Tenant from any obligations under this lease, make any payment
or take any action to cure such Tenant Default in such manner and to such extent
as Landlord may deem necessary or desirable, including, but not limited to
causing the Premises to be maintained in accordance with the provisions of
Article 12. Tenant covenants and agrees to pay to Landlord, upon demand, all
advances, costs and expenses of Landlord in connection with the cure of such
Tenant Default, including reasonable attorneys' fees, together with interest at
eighteen percent (18%) per annum from the date of payment of any such advances,
costs and expenses by Landlord. Action taken by Landlord may include commencing,
appearing in, defending or otherwise participating in any action or proceeding
and paying, purchasing, contesting or compromising any claim, right,
encumbrance, charge or lien with respect to the Premises.
B. Landlord may terminate this Lease, effective at such time as
may be specified by notice to Tenant, and recover possession of the Premises
from Tenant. Tenant shall remain liable to Landlord for damages in an amount
equal to the Minimum Rent, and Adjustments (estimated at a rate equal to that
paid by Tenant during the immediately preceding 12-month period, or shorter
period, if the Lease has not been in effect for 12 months) and other sums which
would have been owing by Tenant hereunder for the balance of the Lease Term had
this Lease not been terminated, less the net proceeds, if any, of any reletting
of the Premises by Landlord subsequent to such termination, after deduction of
all of Landlord's expenses in connection with such recovery of possession or
reletting. Landlord shall be entitled to collect and receive such damages from
Tenant on the days on which the Minimum Rent, Adjustments and other amounts
would have been payable if this Lease had not been terminated. Alternatively, at
the sole option of Landlord, Landlord shall be entitled to recover forthwith
from Tenant, as damages for loss of the bargain and not as a penalty, an
aggregate sum which, at the time of such termination of this Lease, represents
the excess, if any, of (a) the aggregate of the Minimum Rent, Adjustments and
all other sums payable by Tenant hereunder that would have accrued for the
balance of the Lease Term, over (b) the aggregate rental value of the Premises
for the balance of the Lease Term, both discounted to present worth at the rate
of 8% per annum.
C. Landlord may reenter and take possession of the Premises or
any part thereof, without demand or notice, and repossess the same and expel
Tenant and any party claiming by, under or through Tenant, and remove all
personal property and inventory, using such force as may be necessary, without
being liable for prosecution on account thereof or being deemed guilty of
trespass, and without prejudice to any remedies for arrearage of Rent or right
to bring any proceeding for breach of terms, covenants and conditions of this
Lease. No such reentry or taking possession of the Premises by Landlord shall be
construed as an election by Landlord to terminate this Lease unless a written
notice of such intention is given to Tenant. No notice from Landlord hereunder
or under a forcible entry and detainer statute or similar law shall constitute
an election by Landlord to terminate this Lease unless such notice specifically
so states. Landlord reserves the right, following any reentry or reletting, to
exercise its right to terminate this Lease by giving Tenant written notice, in
which event the Lease will terminate as specified in said notice. After
recovering possession of the Premises, Landlord may, but shall not be obligated
to, relet the Premises, or any part thereof, for the account of Tenant, for such
term and on such other conditions as Landlord, in its sole discretion, may
determine. Landlord may make such repairs, alterations or improvements as
Landlord may consider appropriate to accomplish such reletting, and Tenant shall
reimburse Landlord upon demand for all costs and expenses, including attorneys'
fees, which Landlord may incur in connection with such reletting, including
advertising costs and leasing commissions, whether or not Landlord successfully
relets the Premises. Landlord may collect and receive the rents for such
reletting but Landlord shall in no way be responsible or liable for any failure
to relet the Premises, or any part thereof, or for any failure to collect any
rent due upon such reletting. Landlord shall have the right to rent any other
available space in the Building Complex before reletting or attempting to relet
the Premises. Notwithstanding Landlord's recovery of possession of the Premises,
Tenant shall continue to pay on the dates herein specified, the Minimum Rent,
and Adjustments (estimated at a rate equal to that paid by Tenant during the
immediately preceding 12-month period, or shorter period if the Lease has not
been in effect for 12 months) and other amounts which would be payable hereunder
if such repossession had not occurred. Upon the expiration or earlier
termination of this Lease, Landlord shall refund to Tenant the amount, without
interest, by which the amounts paid by Tenant, when added to the net amount, if
any, recovered by Landlord through any reletting of the Premises, exceed the
total amount payable by Tenant under this Lease. If, in connection with any
reletting, the new lease term extends beyond the existing Lease Term, or the
premises covered thereby include other premises not part of the Premises, a fair
apportionment of the rent received from such reletting and the expenses incurred
in connection therewith will be made in determining the net amount recovered
from such reletting. No entry by Landlord into the Premises or exercise of
dominion by Landlord over the property of Tenant or others within the Premises
shall constitute conversion or trespass, Tenant hereby consenting thereto in the
event of any Tenant Default.
D. Exercise by Landlord of any one or more remedies provided for
herein shall not be deemed to be an acceptance of surrender of the Premises by
Tenant, whether by agreement or operation of law, it being understood that such
surrender can be effected only by the written agreement of Landlord and Tenant.
No such alteration of locks or other security devices and no removal or other
exercise of dominion by Landlord over the property of Tenant or others at the
Premises shall be deemed unauthorized or constitute conversion, Tenant hereby
consenting, after any Tenant Default, to the aforesaid exercise of dominion over
Tenant's property within the Premises. All claims for damages by reason of such
reentry, repossession, and/or alteration of locks or other security devices are
hereby waived, as are all claims for damages by reason of any distress warrant,
forcible detainer or unlawful detainer proceedings, sequestration proceedings or
other legal process. Tenant agrees that any reentry by Landlord may be pursuant
to judgment obtained in forcible detainer or unlawful detainer proceedings or
other legal proceedings or without the necessity for any legal proceedings and
Landlord shall not be liable for trespass or otherwise.
E. In the event that Landlord shall have taken possession of the
Premises pursuant to the authority herein granted, Landlord may relinquish
possession of all or any portion of the Personal Property located therein to any
person claiming to be entitled to possession thereof ("Claimant") who presents
to Landlord a copy of any instrument, granting Claimant the right to take
possession of such Personal Property, without the necessity on the part of
Landlord to inquire as to the authenticity of said instrument or the validity of
the factual or legal basis upon which Claimant purports to act; and Tenant
agrees to indemnify and hold Landlord harmless from all costs, expenses, losses,
damages, and liabilities incident to Landlord's relinquishment of possession of
all or any portion of the Personal Property to Claimant. Tenant stipulates and
agrees that the rights herein granted Landlord are commercially reasonable.
F. The consent or waiver, expressed or implied, by Landlord to
any breach of any term, covenant, or condition of this Lease by Tenant shall not
be construed as a consent or waiver of any other breach of the same or any other
term, covenant, or condition. The failure by Landlord to insist upon the strict
performance or any term, covenant, or condition hereof or to exercise any right
or remedy upon a breach thereof, and the acceptance of full or partial Rent
during the continuance of any such breach, shall not constitute a waiver of any
such breach or of such term, covenant, or condition. No agreement, term,
covenant or condition hereof to be performed or complied with by Tenant, and no
breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord. The waiver of any breach shall not affect or
alter this Lease, and each and every term, covenant, or condition hereof shall
continue in full force and effect with respect to any other or subsequent breach
thereof.
G. The acceptance of any payments by Landlord from Tenant after
the termination of this Lease shall in no way alter the length of the Term or
Tenant's right of possession hereunder or reinstate, continue or extend the Term
or affect any notice given Tenant prior to the receipt of such payments, it
being agreed that after the giving of notice or the commencement of a suit or
after final judgment for possession of the Premises, Landlord may receive and
collect any Rent due, and the payment of Rent shall not waive or affect said
notice, suit or judgment, nor shall the acceptance of Rent be deemed a waiver of
any breach by Tenant of any term, covenant or condition of this Lease. No
endorsement or statement on any check or any letter accompanying any check or
payment of Rent shall be deemed an accord and satisfaction. Landlord may accept
any such check or payment without prejudice to Landlord's right to recover the
balance due of any installment or payment of Rent or pursue any other remedies
available to Landlord with respect to any Tenant Default.
H. All property removed from the Premises by Landlord
pursuant to any provisions of this Lease or of law shall be handled, removed or
stored by Landlord at the cost and expense of Tenant, and Landlord shall in no
event be responsible for the value, preservation or safekeeping thereof. Tenant
shall pay Landlord upon demand for all expenses incurred by Landlord in such
removal and storage.
I. Tenant shall pay all costs, charges and expenses, including
court costs and attorneys' fees, incurred by Landlord (i) in enforcing Tenant's
obligations under this Lease whether or not a suit or action is commenced, (ii)
in the exercise by Landlord of any of its remedies upon the occurrence of a
Tenant Default, or (iii) in consideration of any request, approval, or consent
to any action by Tenant which is prohibited by this Lease or which may be done
only with Landlord's approval or consent, whether or not such approval or
consent is given. The prevailing party shall have the right to collect from the
non-prevailing party its reasonable attorneys fees and court costs in the event
of any litigation between the parties related to this Lease.
J. No remedy herein or otherwise conferred upon or reserved to
Landlord shall be considered to exclude or suspend any other remedy but the same
shall be cumulative and shall be in addition to every other remedy given
hereunder, or now or hereafter existing at law or in equity or by statute, and
every power and remedy given by this Lease to Landlord may be exercised from
time to time consecutively or concurrently and as often as may be deemed
necessary by Landlord.
25. Default by Landlord. In the event of any default by Landlord
("Landlord Default"), Tenant's exclusive remedy shall be to commence an action
for damages. Prior to instituting any such action, Tenant shall advise Landlord,
and any mortgagee whose name and address has been given to Tenant, by written
notice specifying such Landlord Default with particularity and Landlord shall
thereupon have thirty (30) days in which to cure any such Landlord Default;
provided, however, that if the nature of the Landlord Default is such that more
than thirty (30) days are required for its cure, then Landlord shall not be in
default if Landlord commences performance within said thirty (30) days and
thereafter diligently prosecutes the same to completion. Unless Landlord fails
to cure any Landlord Default after such notice, Tenant shall not have any remedy
or cause of action by reason thereof. All obligations of Landlord hereunder will
be construed as covenants, not conditions.
26. Reconstruction. In the event the Premises and/or Building Complex are
damaged by fire or other peril covered by "all risk" insurance and the insurance
proceeds are made available to Landlord, Landlord agrees to repair same, and
this Lease shall remain in full force and effect, and Tenant shall be entitled
to a proportionate reduction of the Minimum Rent from the date of damage until
completion of the repairs, such proportionate reduction to be based upon the
extent to which the damage and making of such repairs shall reasonably interfere
with the business carried on by Tenant in the Premises within the sole
discretion of Landlord. If the damage is due to the fault or neglect of Tenant
or its employees, there shall be no abatement of Minimum Rent.
In the event the Premises and/or Building Complex are damaged as a
result of any cause other than the perils covered by "all risk" coverage
insurance or the insurance proceeds are not made available to Landlord, then
Landlord shall repair the same, provided the extent of the destruction is less
than ten percent (10%) of the then full replacement cost of the Premises and/or
Building Complex. If the destruction of the Premises and/or Building Complex is
greater than ten percent (10%) of the full replacement cost thereof, then
Landlord shall have the option (i) to repair or restore such damage, this Lease
continuing in full force and effect, with the Minimum Rent to be proportionately
reduced as hereinabove provided in this Article; or (ii) to give notice to
Tenant at any time within sixty (60) days after such damage, terminating this
Lease as of the date specified in such notice, which date shall be no more than
thirty (30) days after the giving of such notice. In the event of termination,
Tenant shall continue to pay Rent, proportionately reduced as provided above,
until the date specified in such notice.
In the event that damage to the Premises cannot be repaired within
four (4) months of the date of the casualty, as reasonably determined by
Landlord, then each party hereto shall have the right to terminate this Lease by
giving written notice to the other party within ten (10) days of Tenant's
receipt of Landlord's written determination, which shall be provided to Tenant
within fifteen (15) days of the casualty occurrence.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Article occurs during the last twenty-four (24) months of the Lease Term or
any extension thereof.
Landlord shall not be required to repair any damage by fire or other
cause, or to make any repairs or replacements of any leasehold improvements,
fixtures, or other Personal Property of Tenant. Unless Landlord has notified
Tenant that the Lease shall be terminated, Tenant shall be required to restore
all leasehold improvements, fixtures or Personal Property to their condition
prior to the date of such damage not later than sixty (60) days after the date
by which Landlord has repaired damage to the Premises, whether or not insurance
proceeds are available to Tenant for such purpose. All Tenant's work undertaken
pursuant to this Article 26 shall be completed in compliance with Articles 12
and 13 of this Lease.
27. Eminent Domain. If more than twenty-five percent (25%) of the Premises
shall be taken or appropriated by any governmental or quasi-governmental
authority under the power of eminent domain, or conveyed to any governmental
authority in lieu of a condemnation proceeding, either party hereto shall have
the right, at its option, within sixty (60) days after said taking, to terminate
this Lease upon thirty (30) days' written notice. If (i) less than twenty-five
percent (25%) of the Premises is taken, or (ii) more than twenty-five percent
(25%) of the Premises is taken, but neither party elects to terminate as herein
provided, the Minimum Rent thereafter shall be equitably reduced and Tenant's
Pro Rata Share shall be redetermined. If any part of the Building Complex other
than the Premises is so taken, appropriated, or conveyed, Landlord shall, within
sixty (60) days of said taking, have the right at its option to terminate this
Lease upon written notice to Tenant provided that Landlord terminates all other
leases in the Building Complex. In the event of any taking or appropriation
whatsoever, Landlord shall be entitled to any and all awards and/or settlements
which may be given and Tenant shall have no claim against Landlord for any
amounts whatsoever.
28. Parking. The parking lot shall be used for parking by vehicles no
larger than full-size passenger automobiles or pick-up trucks, herein called
"Permitted Size Vehicles." Vehicles other than Permitted Size Vehicles shall be
parked and loaded or unloaded only in the designated areas as directed by
Landlord and shall be prohibited from standing or parking on either side of
Tejon Street, adjacent to the Building Complex. Except for Tenant's service and
delivery vehicles, no vehicle shall remain parked at the Building Complex
overnight. Tenant shall not permit nor allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas other than
those designated by Landlord for such activities. If Tenant permits or allows
such use, then Landlord shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove or tow away the
vehicle involved and charge the cost to Tenant, which cost shall be immediately
payable upon demand by Landlord.
29. Signs.
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A. At Tenant's request, Landlord shall affix an identification sign
to the exterior of the Premises (the "Sign"). The location, design, and
construction of the Sign shall be designated by Landlord in its sole discretion.
Tenant shall reimburse Landlord for all out-of-pocket costs relating to the
construction and installation of the Sign within ten (10) days of its receipt of
Landlord's invoice for such costs. The Corgenix sign located on the exterior of
the Premises on the date of this Lease is hereby approved by Landlord.
B. Tenant may not affix or maintain upon the glass panes, window
supports, or the exterior walls of the Building any such signs, advertising
placards, name, insignia, trademarks and descriptive material without first
having received the written approval of Landlord, in Landlord's sole discretion.
30. Displays. No exterior displays, merchandise or any other material may
be stored or remain outside the exterior walls and permanent doorways of the
Premises. Tenant further agrees not to install any exterior lighting, amplifiers
or similar devices or use any advertising medium which may be heard or seen
outside the Premises, such as flashing lights, searchlights, loudspeakers, etc.
31. Auctions. Tenant shall not conduct or permit to be conducted any
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sale by auction on the Premises, whether said auction is voluntary,
involuntary, pursuant to any assignment for the payment of creditors or
pursuant to any bankruptcy or other insolvency proceeding.
32. Hazardous Substances.
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A. The term "Hazardous Substance" as used in this Lease shall mean
any product, substance, chemical, material or waste whose presence, nature,
quantity and/or intensity of existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or in combination
with other materials expected to be on the Premises, is either: (i) potentially
injurious to the public health, safety or welfare, the environment, or the
Premises; (ii) regulated or monitored by any governmental authority; or (iii) a
basis for potential liability of Landlord to any governmental agency or third
party under any applicable statute or common law theory. Hazardous Substance
shall include, but not be limited to hydrocarbons, petroleum gasoline, crude oil
or any products or by-products thereof. Tenant shall not engage in any activity
in or about the Premises which constitutes a Reportable Use (as hereinafter
defined) of Hazardous Substances without the express prior written consent of
Landlord and compliance in a timely manner (at Tenant's sole cost and expense)
with all Applicable Requirements (as defined in Section D). "Reportable Use"
shall mean (i) the installation or use of any above or below ground storage
tank; (ii) the generation, possession, storage, use, transportation, or disposal
of a Hazardous Substance that requires a permit from, or with respect to which a
report, notice, registration or business plan is required to be filed with, any
governmental authority; and (iii) the presence in, on or about the Premises of a
Hazardous Substance with respect to which any Applicable Laws require that a
notice be given to persons entering or occupying the Premises or neighboring
properties. Notwithstanding the foregoing, Tenant may, without Landlord's prior
consent but upon notice to Landlord and in compliance with all Applicable
Requirements, use any ordinary and customary materials reasonably required to be
used by Tenant in the normal course of the Permitted Use, so long as such use is
not a Reportable Use and does not expose the Premises or neighboring properties
to any meaningful risk of contamination or damage or expose Landlord to any
liability therefor. In addition, Landlord may (but without any obligation to do
so) condition its consent to any Reportable Use of any Hazardous Substance by
Tenant upon Tenant's giving Landlord such additional assurances as Landlord, in
its reasonable discretion, deems necessary to protect itself, the public, the
Premises and the environment against damage, contamination or injury and/or
liability therefor including but not limited to the installation (and, at
Landlord's option, removal on or before Lease expiration or earlier termination)
of reasonably necessary protective modifications to the Premises (such as
concrete encasements) and/or the deposit of an additional Security Deposit under
Section 5.
B. If Tenant knows, or has reasonable cause to believe, that a
Hazardous Substance has come to be located in, on, under or about the Premises
or the Building Complex, other than as previously consented to by Landlord,
Tenant shall immediately give Landlord written notice thereof, together with a
copy of any statement, report, notice, registration, application, permit,
business plan, license, claim, action, or proceeding given to, or received from,
any governmental authority or private party concerning the presence, spill,
release, discharge of, or exposure to, such Hazardous Substance including but
not limited to all such documents as may be involved in any Reportable Use
involving the Premises. Tenant shall not cause or permit any Hazardous Substance
to be spilled or released in, on, under or about the Premises (including,
without limitation, through the plumbing or sanitary sewer system). Landlord
acknowledges that Tenant will store a small amount of gasoline on the Premises
to operate its emergency generators. Tenant shall comply with all applicable
rules, regulations and ordinances and provisions of this Article 32 in the
storage of said gasoline.
C. Tenant shall indemnify, protect, defend and hold Landlord, its
managers, members, officers, directors, agents, employees, lenders and ground
Landlord, if any, and the Premises, harmless from and against any and all
damages, liabilities, judgments, costs, claims, liens, expenses, penalties, loss
of permits and attorneys' and consultants' fees arising out of or involving any
Hazardous Substance brought onto the Premises by or for Tenant or by anyone
under Tenant's control. Tenant's obligations under this Section 32(c) shall
include, but not be limited to, the effects of any contamination or injury to
any person, property or the environment created or suffered by Tenant, and the
cost of investigation (including consultants' and attorneys' fees and testing),
removal, remediation, restoration and/or abatement thereof, or of any
contamination therein involved, and shall survive the expiration or earlier
termination of this Lease. No termination, cancellation or release agreement
entered into by Landlord and Tenant shall release Tenant from its obligations
under this Lease with respect to Hazardous Substances, unless specifically so
agreed by Landlord in writing at the time of such agreement. The indemnification
set forth above shall survive the expiration or termination of this Lease.
D. Tenant shall at Tenant's sole cost and expense, fully, diligently
and in a timely manner, comply with all "Applicable Requirements," which term is
used in this Lease to mean all laws, rules, regulations, ordinances, directives,
covenants, easements and restrictions of record, permits, the requirements of
any applicable fire insurance underwriter or rating bureau, and the
recommendations of Landlord's engineers and/or consultants, relating in any
manner to the Premises (including but not limited to matters pertaining to (i)
industrial hygiene, (ii) environmental conditions on, in, under or about the
Premises, including soil and groundwater conditions; and (iii) the use,
generation, manufacture, production, installation, maintenance, removal,
transportation, storage, spill, or release of any Hazardous Substance), now in
effect or which may hereafter come into effect. Tenant shall, within five (5)
days after receipt of Landlord's written request, provide Landlord with copies
of all documents and information, including but not limited to permits,
registrations, manifests, applications, reports and certificates, evidencing
Tenant's compliance with any Applicable Requirements specified by Landlord, and
shall immediately upon receipt, notify Landlord in writing (with copies of any
documents involved) of any threatened or actual claim, notice, citation,
warning, complaint or report pertaining to or involving failure by Tenant or the
Premises to comply with any Applicable Requirements.
E. Landlord, Landlord's agents, employees, contractors and designated
representatives, and the holders of any mortgages, deeds of trust or ground
leases on the Premises ("Lenders") shall have the right to at reasonable times
and during normal business hours enter the Premises at any time in the case of
an emergency, and otherwise at reasonable times, for the purpose of inspecting
the condition of the Premises and for verifying compliance by Tenant with this
Lease and all Applicable Requirements, and Landlord shall be entitled to employ
experts and/or consultants in connection therewith to advise Landlord with
respect to Tenant's activities, including but not limited to Tenant's
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Premises. The reasonable costs and expenses
of any such inspections shall be paid by the party requesting same, unless a
Default of this Lease by Tenant or a violation of Applicable Requirements or a
contamination, caused or materially contributed to by Tenant, is found to exist
or to be imminent, or unless the inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent violation
or contamination. In such case, Tenant shall upon request reimburse Landlord or
Landlord's Lender, as the case may be, for the costs and expenses of such
inspections.
33. Late Fees and Interest on Late Payments. Tenant recognizes that the
late payment of any Rent will result in administrative and other expenses to
Landlord, the extent of which are difficult and economically impractical to
ascertain. Tenant, therefore, agrees that any payment of Minimum Rent and/or
Adjustments which is not paid within ten (10) days of the due date shall be
increased by a late fee equal to fifteen percent (15%) of the payment due. Any
delinquent payments of Rent or other amounts due Landlord pursuant to the terms
of the Lease, including the late fee specified above, shall accrue interest at
the rate of eighteen percent (18%) per annum commencing ten (10) days after the
due date thereof. The provisions of this article shall in no way relieve Tenant
of the obligation to pay Rent on or before the date on which it is due, or
affect Landlord's remedies pursuant to Article 24, but shall be an addition
thereto.
34. Sale of Premises by Landlord. In the event of any sale or other
transfer of the Premises and/or Building Complex by Landlord (or its successor),
Landlord shall be relieved of any and all liability from its obligation in this
Lease arising out of any act, occurrence or omission occurring after the
consummation of such sale; and the purchaser, or other transferee, at such sale,
shall be deemed, without any further agreement between the parties or their
successors-in-interest, to have assumed and agreed to carry out any and all of
the covenants and obligations of Landlord under this Lease.
35. Subordination, Attornment. This Lease, and all of Tenant's interest
hereunder, shall be subordinate to any promissory notes, mortgages or deeds of
trust secured by the Building Complex or any portion thereof. No act or further
agreement by Tenant shall be necessary to establish the subordination of this
Lease to any such promissory note, mortgage or deed of trust; however, Tenant
agrees, upon request of Landlord, to confirm in writing the subordination of its
rights hereunder to the lien of any mortgage or deed of trust, to any bank,
insurance company or other lending institution, now or hereafter holding an
encumbrance affecting the Building Complex. In the event any proceedings are
brought for foreclosure, or in the event of any sale pursuant to any mortgage or
deed of trust made by Landlord covering the Premises, Tenant hereby agrees to
attorn to the purchaser upon any such foreclosure or sale and recognize such
purchaser as Landlord under this Lease provided, however, that the holder of any
mortgage or deed of trust shall agree that in the event of foreclosure of such
mortgage, Tenant shall remain undisturbed under this Lease so long as Tenant
complies with all of Tenant's obligations hereunder.
36. Notices. All notices, demands, statements, and requests ("Notice")
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been properly given or served as of (i) the date of personal
delivery; (ii) the date the same is deposited in the United States mail,
prepaid, for delivery by registered or certified mail, return receipt requested;
or (iii) the date delivered to a reputable overnight courier service providing
proof of delivery. The initial address of the Landlord and Tenant is set forth
below.
Landlord: Crossroads West LLC/DeCook MetroTech LLC
5675 DTC Boulevard
Suite 170
Greenwood Village, CO 80111
Tenant: Corgenix, Inc.
12061 Tejon Street
Westminster, CO 80234
Any party shall have the right from time to time and at any time,
upon at least ten (10) days' prior written notice, to change its respective
address and to specify any other address within the United States of America,
provided said new address is not a post office box. Notwithstanding the
effective date of delivery of a Notice, the time period for a response to any
such Notice, if a time period is specified herein, shall commence to run from
the date of actual receipt of such Notice or the date of deemed receipt, if
applicable.
37. Tenant's Estoppel Certificate. Tenant shall at any time and from time
to time, within ten (10) days of written request therefor from Landlord,
execute, acknowledge and deliver to Landlord a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified is in full force and effect), and the date to which the Rent and
other charges are paid in advance, if any; (ii) acknowledging that there is not,
to Tenant's knowledge, any uncured Landlord or Tenant Default hereunder, or
specifying any such default, if claimed; (iii) setting forth the Lease Term,
Rent, and Termination Dates; and (iv) stating such other matters as may be
requested relating to this Lease. Any such statement may be relied upon by any
prospective purchaser or lender for all or any portion of the real property of
which the Premises are a part. Further, Tenant and any guarantor shall submit to
Landlord, within 15 days of written request therefore, an updated, signed
financial statement which shall be no more than ninety (90) days old and shall
include a profit and loss statement for the preceding twelve (12) months.
38. (This section not applicable.)
39. Bankruptcy. Landlord and Tenant understand that notwithstanding
certain provisions to the contrary contained herein, a trustee or debtor in
possession under the Bankruptcy Code of the United States (the "Bankruptcy
Code") may have certain rights to assume or assign this Lease. Landlord and
Tenant further understand that in any event Landlord is entitled under the
Bankruptcy Code to adequate assurances of future performance of the terms,
covenants and conditions of this Lease. For purposes of any such assumption or
assignment, the parties hereto agree that the term "Adequate Assurance" shall
include at least the following:
A. In order to assure Landlord that the proposed assignee will
have the resources with which to pay the Rent, any proposed assignee must have
demonstrated to Landlord's satisfaction a net worth (as defined in accordance
with generally accepted accounting principles) at least equal to the net worth
of Tenant on the Lease Commencement Date increased by seven percent (7%) per
year through the date of the proposed assignment. The financial condition and
resources of Tenant were a material inducement to Landlord in entering into this
Lease.
B. Any proposed assignee must have been engaged in the Permitted
Use at least five (5) years prior to any such proposed assignment.
C. In entering into this Lease, Landlord considered extensively
the Permitted Use and determined that the Permitted Use would add substantially
to Landlord's tenant balance and that if it were not for Tenant's agreement to
the Permitted Use of the Premises, Landlord would not have entered into this
Lease. Landlord's overall operation will be substantially impaired if the
trustee in bankruptcy or any assignee of this Lease makes any use of the
Premises other than the Permitted Use.
D. Any proposed assignee of this Lease must assume and agree
to be personally bound by the terms, covenants and provisions of this Lease.
40. Enlarging the Building Complex. Tenant acknowledges that Landlord
hereby reserves the right from time to time to enlarge the Building Complex by
(i) constructing other buildings on portions of the Building Complex, with or
without any additional parking or Common Areas; (ii) including within the
existing Building Complex other properties now or hereafter owned by Landlord
adjacent to the Building Complex; and (iii) constructing buildings, and Common
Areas on such additional adjacent property. Any new buildings, properties and
Common Areas shall be treated as though they were originally a part of the
Building Complex and at the election of Landlord all utility costs, Adjustments
and other pro rata payments required of Tenant shall be applicable to such
enlarged area and all improvements thereon; provided that in such event,
Tenant's Pro Rata Share shall be appropriately adjusted to include any
additional square footage contained in such new buildings or comprising
additional properties added to the Building Complex. Until Landlord makes such
election, Tenant's Pro Rata Share shall continue as though such enlargement had
not occurred.
41. Refusal of Consent. Notwithstanding anything to the contrary contained
in this Lease, Tenant shall have no claim, and hereby waives the right to any
claim, against Landlord for damages by reason of any refusal, withholding or
delaying by Landlord of any consent or approval, and in such event, Tenant's
only remedies shall be an action for specific performance or injunction to
enforce any such requirement.
42. Demolition. In the event that Landlord makes a determination to
demolish all or the portion of the building of which the Premises is a part,
Landlord shall have the right to terminate this lease by giving Tenant written
notice at least six (6) months in advance of the termination date. Upon such
termination date all of Tenants rights to lease, occupy or use the Premises
shall terminate and Tenant shall have no claim against Landlord as a result of
such termination.
43. General Provisions.
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A. Plats and Riders. Clauses, plats, riders and addenda,
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and amendments, if any, affixed to this Lease are a part hereof.
B. Waiver. The waiver by Landlord or Tenant of any term,
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covenant or condition herein contained shall not be deemed to be a waiver of
any other term, covenant or condition or any subsequent breach of the same or
any other term, covenant or condition herein contained.
C. Joint Obligation. If there be more than one Tenant, the
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obligations hereunder imposed shall be joint and several.
D. Marginal Headings. The marginal headings and titles to
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the articles of this Lease are not a part of the Lease and shall have no
effect upon the construction or interpretation of any part hereof.
E. Time. Time is of the essence of this Lease and each and
----
all of its provisions in which performance is a factor.
F. Successors and Assigns. The terms, covenants and
----------------------
conditions herein contained, subject to the provisions as to assignment,
shall apply to and bind the heirs, successors, executors, administrators and
assigns of the parties hereto.
G. Recordation. Tenant shall not record this Lease, but at
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the request of Landlord, Tenant agrees to execute a short form memorandum
hereof which may be recorded.
H. Quiet Possession. Upon Tenant paying the Rent reserved
----------------
hereunder and observing and performing all of the terms, covenants and
conditions contained in this Lease, Tenant shall have quiet possession of the
Premises for the entire term hereof, subject to all the provisions of this
Lease.
I. Prior Agreements. This Lease contains all of the agreements of the
parties hereto, and no prior agreements or understandings, written or oral,
shall be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties hereto.
J. Inability to Perform. This Lease and the
--------------------
obligations of the Tenant hereunder shall not be affected or impaired because
Landlord is unable to fulfill any of its obligations hereunder or is delayed in
doing so, if such inability or delay is caused by reason of strike, labor
troubles, acts of God, or any other cause beyond the reasonable control of the
Landlord.
K. Partial Invalidity. Any provision of this
------------------
Lease which shall prove to be invalid, void, or illegal shall in no way affect,
impair or invalidate any other provision hereof and such other provisions shall
remain in full force and effect.
L. Choice of Law. This Lease shall be governed by
-------------
the laws of the state in which the Premises are located.
M. Authority of Tenant. If Tenant is a
-------------------
corporation, each individual executing this Lease on behalf of said corporation
represents and warrants that (i) he is duly authorized to execute and deliver
this Lease on behalf of said corporation, in accordance with the bylaws of said
corporation; (ii) this Lease is binding upon said corporation; and (iii) a
corporate resolution to that effect in form reasonably acceptable to Landlord
shall be provide immediately upon request. If tenant is a partnership, each
person or entity signing this Lease for Tenant represents and warrants that he
or it is a general partner of the partnership, that he or it has full authority
to sign for the partnership and that this Lease binds the partnership and all
general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition. Within thirty (30)
days after this Lease is signed. Tenant shall deliver to Landlord a copy of
Tenant's recorded statement of partnership or certificate of limited
partnership.
N. Landlord Exculpation. Landlord and all partners,
shareholders, or members, as the case may be, shall have absolutely no personal
liability with respect to any provision of this Lease, or any obligation or
liability arising in connection herewith. Tenant shall look solely to the equity
in the Premises or the Building Complex, for the satisfaction of any remedies of
Tenant in the event of a breach by the Landlord of any of its obligations. Such
exculpation of liability shall be absolute without any exception whatsoever.
IN WITNESS WHEREOF, the parties hereto have entered into this Lease Agreement as
of the day and year first above written.
"LANDLORD"
"TENANT"
CROSSROADS WEST LLC and CORGENIX, INC.
DECOOK METROTECH LLC,
Tenants In Common
BY: s/ J. Michael Spriggs BY: s/ Douglass T.
Simpson
J. Michael Spriggs Douglass T. Simpson
ITS: Authorized Representative ITS: President
DATE: 5/5/01 DATE:5/1/01
EXHIBIT "A"
Drawing of site plan.
EXHIBIT "B"
DESCRIPTION OF LANDLORD'S AND TENANT'S WORK
Landlord's Work shall include the following:
Installation of the following electrical equipment shall be completed by
Landlord at its sole cost and expense:
1. Sub-panel in electric closet
2. Replace circuits for existing refrigerators when moved from current
location
3. New 230v circuit for new pump blower; mount on roof
4. New 120v circuit for new pump
5. New 120v circuit and four duplex receptacles in new pump room
6. New circuit for existing exhaust hood
7. New circuit and convenience outlet for heater in one office as
designated by tenant
Tenant's Work shall include the following:
1. Tenant to be responsible for any and all interior work (other than set forth
herein as Landlord's Work) completed in conformance with plans and
specifications according to Paragraph 4 b) below. Tenant will submit to the
Landlord a standard floor plan of Tenant's work, attached hereto as Exhibit
"C".
2. To equip said office in a manner comparable to offices of a similar
nature. Tenant shall, at its expense, install its own office fixtures.
3. To provide partitions, if required, and all other improvements necessary to
prepare and open Premises for the business herein authorized.
4. Landlord's obligation to allow Tenant to construct any improvements in
the Premises shall be subject to the following conditions:
a) Compliance with Covenants During construction of its tenant finish, Tenant
shall comply in all material respects with all covenants, agreements and
conditions required by the Lease.
b) Plans and Specifications On or before ten (10) days prior to
------------------------
commencement of construction by Tenant, Tenant shall furnish to the
Landlord a set of the final plans and specifications for any work to be
done in the Premises. The plans must be reviewed and approved by
Landlord, such approval not to be unreasonably withheld. No changes in
such plans and specifications are to be made without the prior written
approval of the Landlord, and such work shall not be started without
Landlord's prior written approval.
c) Building Permit Tenant shall furnish to the Landlord all permits and
approvals, issued by the appropriate governmental authority, which are
necessary with respect to any construction in the leased Premises,
together with written evidence satisfactory to Landlord that the
construction complies with all applicable governmental statutes,
ordinances and regulations. Further, all zoning ordinances and
governmental and planning ordinances will be complied with.
d) Contractors Prior to commencement of construction, Landlord shall be
furnished with a statement setting forth the names and addresses of every
contractor, subcontractor, person, firm or corporation furnishing
materials or performing labor in the construction of the improvements in
the Premises.
e) Insurance Tenant shall supply Landlord with a certificate of insurance
from an insurance company acceptable to Landlord evidencing an endorsement
for builder's risk for the benefit of the Landlord, in such reasonable
amounts as Landlord shall require.
f) Materials All materials incorporated in the Premises shall have been
purchased so that the absolute ownership thereof shall become vested in
Tenant immediately upon delivery thereof to the Premises or installation
on the Premises.
g) Quality of Construction All work on the Premises shall be completed in a
good and workmanlike manner. The quality of the Tenant Finish in the
Premises shall be comparable to that of the Premises, except that Tenant's
display cases and Tenant fixtures installed at the Premises shall be new.
h) Compliance with Law The Tenant shall comply with all governmental
regulations pertaining to the construction of Tenant's Work, maintenance
and operation of the improvements in the leased Premises and the other
components of the Premises.
i) Posting Tenant shall permit Landlord to post the Premises with appropriate
notices stating that Landlord shall not be responsible for mechanics'
liens on the Premises.
ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE ("Addendum") is executed simultaneously with and
hereby forms a part of the annexed Lease Agreement dated the 5th day of May,
2001, by and between Crossroads West Limited Liability Company and DeCook
MetroTech LLC, tenants in common. ("Landlord") and Corgenix, Inc._("Tenant").
All provisions herein are a part of that Lease and to the extent that they
contradict the Lease, the provisions hereof shall prevail.
Minimum Rent The Minimum Rent as defined in Article 6 of the Lease shall
be as set forth below:
Months 1 through 12 = $10.500.00 per month Months 13 through 24 =
$10,920.00 per month Months 25 through 36 = $11,356.80 per month
Months 37 through 48 = $11,811.07 per month Months 25 through 36 =
$12,283.51 per month
LANDLORD TENANT
CROSSROADS WEST CORGENIX, INC.
LIMITED LIABILITY COMPANY and
DECOOK METROTECH LLC
BY: s/ J. Michael Spriggs BY: s/ Douglass T. Simpson
J. Michael Spriggs Douglass T. Simpson
ITS: Authorized Representative ITS: President
MANAGEMENT AGREEMENT
This agreement is made and entered into as of April 1, 2001 between Corgenix
Medical Corporation, a Nevada corporation (the "Company"), and Luis R. Lopez
(the "Executive").
The Company currently employs or intends to employ the Executive in the position
of Chief Executive Officer ("CEO"). The Company and the Executive desire to
enter into an Employment Agreement setting forth the terms of the Executive's
employment in such capacities by the Company. In consideration of the mutual
promise contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Employment; Position; Term. The Company and the Executive hereby agree to the
Executive's employment by the Company in the position of CEO (the
"Position"). Subject to Section 4, the term of this employment shall be for
thirty-six (36) months beginning April 1, 2001 and it shall be continuously
renewed and extended, unless otherwise terminated as provided for herein, so
that it shall be effective for thirty-six (36) months from any date,
irrespective of the anniversary date of this Agreement.
2. Duties; Responsibilities and Authority. In his capacities in the Position,
the Executive shall have the chief executive officer duties of the Company,
which shall be conducted in accordance with policies established by the
Company's board of directors (the "Board"). In his capacities in the
Position, the Executive shall report to and be subject to the direction and
control of the Board. The Executive shall devote his full professional and
managerial time and effort to the performance of his duties as CEO of the
Company and he shall not engage in any other business activity or activities
which, in the mutual judgement of the Executive and the Board, do, in fact,
conflict with the performance of his duties under this Agreement, unless
agreed to in writing by the Board and attached to this agreement.
Furthermore, subject to the general direction and control of the Board, the
Executive shall be in complete charge of the executive management of the
Company and shall have final authority and responsibility for the Company in
all respects. Both the Company and the Executive acknowledge that the
services to be provided by Executive are critical to the Company's business.
3. Compensation.
(a) Salary and incentive compensation. For services rendered under this
Agreement, the Company shall pay the Executive a monthly salary of $
13,333 paid semi-monthly at the rate of $ 6,666 beginning April 1, 2001.
In addition, each year during the term of this Agreement, the Executive
shall be eligible to receive additional incentive compensation as shall be
determined by the President and approved by the Board.
(b) Annual review. The Executive's salary shall be reviewed annually beginning
with the first anniversary of the date first written above, and it may be
increased (but not decreased) as the President and Board deems
appropriate.
(c) Automobile expense reimbursement. The Company shall reimburse the
Executive in the amount of $500.00 per month for reasonable and necessary
automobile expenses to be incurred by the Executive in connection with his
employment by the Company.
(d) Benefits and Vacation. The Executive shall be eligible to participate in
such insurance programs (health, disability, or life) or such other
health, dental, retirement, or similar employee benefits programs as the
Board may approve, on as basis at least as favorable, as well as
comparable to that available to other officers and executive employees
of the Company. The Executive may participate in stock option programs
of the Company upon such terms as the administrators of such programs in
their discretion determine. The Executive shall be entitled to paid time
off from work at the discretion of the President. The value of any
unused vacation time shall not be paid to the Executive upon termination
of his employment for any reason.
(e) Reimbursement of Expenses.. The Company shall reimburse the Executive for
all reasonable out-of pocket expenses incurred by the Executive in
connection with the business of the Company and in the performance of his
duties under this Agreement upon the Executive's presentation to the
Company of an itemized accounting of such expenses with reasonable
supporting data.
4. Termination. Either party may terminate the Executive's employment under this
Agreement, without cause, upon one (1) month's written advance notice to the
other party. The Company may terminate the Executive's employment for "Cause"
(as hereinafter defined) immediately upon written notice stating the basis
for such termination. "Cause" for termination of the Executive's employment
shall only be deemed to exist if the Executive has breached this Agreement,
exhibited willful disobedience of directions of the Board, or committed gross
malfeasance in performance of his duties hereunder or acts resulting in an
indictment charging the Executive with commission of a felony; provided that
the commission of acts resulting in such an indictment shall constitute Cause
only if a majority of the directors who are not also subject to any such
indictment determine that the Executive's conduct has substantially adversely
affected the Company or its reputation. A material failure to perform his
duties hereunder that results from the disability of the Executive shall not
be considered Cause for his termination.
5. Death. In the event of the death of the Executive, except with respect to any
benefits which have accrued and have not been paid to the Executive
hereunder, the provisions of this Employment Agreement shall terminate
immediately. However, the Executive's estate shall have the right to receive
compensation due to the Executive as of and to the date of his death and,
furthermore, to receive an additional amount equal to one twelfth (1/12) of
the Executive's annual compensation then in effect as specified in Section 3,
above.
6. Severance Pay. In the event that the Executive's employment is terminated by
the Company other than "for cause", the Executive shall be entitled to
receive his then current compensation, payable at the company's regular
payment intervals, and all employee benefits, for twelve (12) months
following the date of the Executive's termination by the Company. If the
Executive truly voluntarily resigns his employment hereunder, or if his
employment is terminated for Cause, the Executive shall not be entitled to
any severance pay or other compensation beyond the date of termination of his
employment.
7. Change of Control Payment. "Change in Control" shall mean a change in
ownership or control of the Company effected through any of the following
transactions:
(i) the acquisition, directly or indirectly by any person or group other than
a trustee or other fiduciary holding securities under an employee benefit
plan of the Company, of beneficial ownership of securities possessing more
than thirty percent (30%) of the total combined voting power of the.
Company's outstanding securities, excluding an initial or secondary public
offerings;
(ii) a stockholder-approved merger or consolidation to which the
Company is a party and in which (A) the Company is not the surviving
entity or (B) securities possessing more than thirty percent (30%) of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons holding
those securities immediately prior to such transaction.
In the event of a change of control, as set forth in this Paragraph 6, the
Executive shall be entitled to receive a lump sum payment equal to sixty (60)
months of his then current compensation and all employee benefits.
8. Covenant Not to Compete. During the continuance of his employment hereunder
and for a period of twelve (12) months after termination of his employment
hereunder, the Executive shall not, anywhere in the United States, engage in
any business which competes directly with the Company. The Company and the
Executive both acknowledge the importance and value of the Executive's
services to the Company.
9. Acceleration of Vesting.
(i) In the event of a Change in Control of the Company, all awards due to
the Executive outstanding under the Company's 1999 Incentive Stock Plan
(or other incentive stock plans) as of the day before the consummation
of such Change in Control shall automatically accelerate so that each
Stock Option shall become fully exercisable with respect to the total
number of shares subject to such stock option and may be exercised for
any or all of those shares as fully-vested shares of common stock as of
such date, without regard to the conditions expressed in the agreements
relating to such stock option.
(ii) In the event that the Executive's employment is terminated by the
Company other than "for cause", all awards due to the Executive
outstanding under the Company's 1999 Incentive Stock Plan (or other
incentive stock plans) shall automatically accelerate so that each Stock
Option shall become fully exercisable with respect to the total number of
shares subject to such stock option and may be exercised for any or all of
those shares as fully-vested shares of common stock as of such date,
without regard to the conditions expressed in the agreements relating to
such stock option.
10. Trade Secrets and Confidential Information. During his employment by
the Company, and for a period of five years thereafter, the Executive shall not,
directly or indirectly, use, disseminate, or disclose for any purpose other than
for the purposes of the Company's business, any of the Company's confidential
information or trade secrets, unless such disclosure is compelled in a judicial
proceeding: The Executive acknowledges access to, and receipt of, such
confidential information. Upon termination of his employment, all documents,
records, notebooks, and similar repositories of records containing information
relating to any trade secrets or confidential information then in the
Executive's possession or control, whether prepared by him or by others, shall
be left with the Company or returned to the Company upon request. The Executive
shall notify future employers of the existence of this confidentiality
provision.
11. Severability. It is the desire and intent of the parties that the provisions
of Sections 8 and 10 shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular sentence or portion of
either Section 8 or 10 shall be adjudicated to be invalid or unenforceable,
the remaining portions of such section nevertheless shall continue to be
valid and enforceable as though the invalid portions were not a part thereof.
In the event that any of the provisions of Section 8 relating to the
geographic areas of restriction or the period of restriction shall be deemed
to exceed the maximum area or period of time which a court of competent
jurisdiction would deem enforceable, the geographic areas and times shall,
for the purposes of this Agreement, be deemed to be the maximum areas of time
periods which a court of competent jurisdiction would deem valid and
enforceable in any state in which such court of competent jurisdiction shall
be convened.
12. Injunctive Relief. The Executive agrees that any violation by him of the
agreements contained in sections 8 and 10 are likely to cause irreparable
damage to the Company, and therefore agrees that if there is a breach or
threatened breach by the Executive of the provisions of said sections, the
Company shall be entitled to an injunction restraining the Executive from
such breach. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies for such breach or threatened breach.
13. Miscellaneous.
(a) Notices. Any notice required or permitted to be given under this
Agreement shall be directed to the appropriate party in writing and
mailed or delivered,
to the Company:
10261 Tejon Street
Westminster CO 80234
Attn: President
to the Executive:
Luis R. Lopez MD
(address)
(b) Binding effect. This Agreement is a personal service agreement and may not
be assigned by the Company or the Executive, except that the Company may
assign this Agreement to a successor by merger, consolidation, sale of
assets or other reorganization. Subject to the forgoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, and legal representatives.
(c) Amendment. This Agreement may not be amended except by an instrument in
writing executed by each of the parties hereto.
(d) Applicable Law. This Agreement shall be governed by the laws of the State
of Colorado, and the venue of any action or proceeding under this
Agreement shall take place in the City and County of Denver, Colorado.
(e) Counterparts. This instrument may be executed in one or more
counterparts, each of which shall be deemed as original.
(f) Arbitration. Should any dispute arise concerning the terms and conditions
of this Agreement, or the breach thereof, and such dispute cannot be first
resolved informally, the parties hereto agree to submit any dispute
arising out of, or relating to, this Agreement, or the breach thereof, to
binding arbitration governed by the American Arbitration Association.
(g) Entire Agreement. This Agreement supersedes and replaces all prior
agreements between the parties related to the employment of the
Executive by the Company.
(h) Advice of Counsel. Executive acknowledges that he has had the opportunity
to seek the advice of counsel relating to this Agreement prior to
execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Corgenix Medical Corporation Executive
s/ Douglass T. Simpson s/ Luis R. Lopez
Douglass T. Simpson Luis R. Lopez
President
MANAGEMENT AGREEMENT
This agreement is made and entered into as of April 1, 2001 between Corgenix
Medical Corporation, a Nevada corporation (the "Company"), and Douglass T.
Simpson (the "Executive").
The Company currently employs or intends to employ the Executive in the position
of President and Chief Operating Officer. The Company and the Executive desire
to enter into an Employment Agreement setting forth the terms of the Executive's
employment in such capacities by the Company. In consideration of the mutual
promise contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
10. Employment; Position; Term. The Company and the Executive hereby agree to
the Executive's employment by the Company in the position of President and
Chief Operating Officer (the "Position"). Subject to Section 4, the term of
this employment shall be for thirty-six (36) months, beginning April 1, 2001
and it shall be continuously renewed and extended, unless otherwise
terminated as provided for herein, so that it shall be effective for
thirty-six (36) months from any date, irrespective of the anniversary date of
this Agreement.
11. Duties; Responsibilities and Authority. In his capacities in the Position,
the Executive shall have the primary executive responsibility for the
business of the Company, which shall be conducted in accordance with policies
established by the Company's board of directors (the "Board"). In his
capacities in the Position, the Executive shall report to and be subject to
the direction and control of the CEO and the Board. The Executive shall
devote his full professional and managerial time and effort to the
performance of his duties as President and Chief Operating Officer of the
Company and he shall not engage in any other business activity or activities
which, in the mutual judgement of the Executive and the Board, do, in fact,
conflict with the performance of his duties under this Agreement, unless
agreed to in writing by the Board and attached to this agreement.
Furthermore, subject to the specific direction of the CEO and general
direction and control of the Board, the Executive shall be in complete charge
of the business of the Company and shall have full authority and
responsibility for formulating policies and administering the Company in all
respects. Both the Company and the Executive acknowledge that the services to
be provided by Executive are critical to the Company's business.
12. Compensation.
(f) Salary and incentive compensation. For services rendered under this
Agreement, the Company shall pay the Executive a monthly salary of $
11,666 paid semi-monthly at the rate of $ 5,833 beginning April 1, 2001.
In addition, each year during the term of this Agreement, the Executive
shall be eligible to receive additional incentive compensation as shall be
determined by the President and approved by the Board.
(g) Annual review. The Executive's salary shall be reviewed annually beginning
with the first anniversary of the date first written above, and it may be
increased (but not decreased) as the President and Board deems
appropriate.
(h) Automobile expense reimbursement. The Company shall reimburse the
Executive in the amount of $500.00 per month for reasonable and necessary
automobile expenses to be incurred by the Executive in connection with his
employment by the Company.
(i) Benefits and Vacation. The Executive shall be eligible to participate in
such insurance programs (health, disability, or life) or such other
health, dental, retirement, or similar employee benefits programs as the
Board may approve, on as basis at least as favorable, as well as
comparable to that available to other officers and executive employees
of the Company. The Executive may participate in stock option programs
of the Company upon such terms as the administrators of such programs in
their discretion determine. The Executive shall be entitled to paid time
off from work at the discretion of the President. The value of any
unused vacation time shall not be paid to the Executive upon termination
of his employment for any reason.
(j) Reimbursement of Expenses.. The Company shall reimburse the Executive for
all reasonable out-of pocket expenses incurred by the Executive in
connection with the business of the Company and in the performance of his
duties under this Agreement upon the Executive's presentation to the
Company of an itemized accounting of such expenses with reasonable
supporting data.
13. Termination. Either party may terminate the Executive's employment under
this Agreement, without cause, upon one (1) month's written advance notice to
the other party. The Company may terminate the Executive's employment for
"Cause" (as hereinafter defined) immediately upon written notice stating the
basis for such termination. "Cause" for termination of the Executive's
employment shall only be deemed to exist if the Executive has breached this
Agreement, exhibited willful disobedience of directions of the Board, or
committed gross malfeasance in performance of his duties hereunder or acts
resulting in an indictment charging the Executive with commission of a
felony; provided that the commission of acts resulting in such an indictment
shall constitute Cause only if a majority of the directors who are not also
subject to any such indictment determine that the Executive's conduct has
substantially adversely affected the Company or its reputation. A material
failure to perform his duties hereunder that results from the disability of
the Executive shall not be considered Cause for his termination.
14. Death. In the event of the death of the Executive, except with respect to
any benefits which have accrued and have not been paid to the Executive
hereunder, the provisions of this Employment Agreement shall terminate
immediately. However, the Executive's estate shall have the right to receive
compensation due to the Executive as of and to the date of his death and,
furthermore, to receive an additional amount equal to one twelfth (1/12) of
the Executive's annual compensation then in effect as specified in Section 3,
above.
15. Severance Pay. In the event that the Executive's employment is terminated by
the Company other than "for cause", the Executive shall be entitled to
receive his then current compensation, payable at the company's regular
payment intervals, and all employee benefits, for twelve (12) months
following the date of the Executive's termination by the Company. If the
Executive truly voluntarily resigns his employment hereunder, or if his
employment is terminated for Cause, the Executive shall not be entitled to
any severance pay or other compensation beyond the date of termination of his
employment.
16. Change of Control Payment. "Change in Control" shall mean a change in
ownership or control of the Company effected through any of the following
transactions:
(i) the acquisition, directly or indirectly by any person or group other than
a trustee or other fiduciary holding securities under an employee benefit
plan of the Company, of beneficial ownership of securities possessing more
than thirty percent (30%) of the total combined voting power of the.
Company's outstanding securities, excluding an initial or secondary public
offerings;
(ii) a stockholder-approved merger or consolidation to which the
Company is a party and in which (A) the Company is not the surviving
entity or (B) securities possessing more than thirty percent (30%) of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons holding
those securities immediately prior to such transaction.
In the event of a change of control, as set forth in this Paragraph 6, the
Executive shall be entitled to receive a lump sum payment equal to sixty (60)
months of his then current compensation and all employee benefits.
17. Covenant Not to Compete. During the continuance of his employment hereunder
and for a period of twelve (12) months after termination of his employment
hereunder, the Executive shall not, anywhere in the United States, engage in
any business which competes directly with the Company. The Company and the
Executive both acknowledge the importance and value of the Executive's
services to the Company.
18. Acceleration of Vesting.
(ii) In the event of a Change in Control of the Company, all awards due to the
Executive outstanding under the Company's 1999 Incentive Stock Plan (or
other incentive stock plans) as of the day before the consummation of such
Change in Control shall automatically accelerate so that each Stock Option
shall become fully exercisable with respect to the total number of shares
subject to such stock option and may be exercised for any or all of those
shares as fully-vested shares of common stock as of such date, without
regard to the conditions expressed in the agreements relating to such
stock option.
(ii) In the event that the Executive's employment is terminated by the
Company other than "for cause", all awards due to the Executive
outstanding under the Company's 1999 Incentive Stock Plan (or other
incentive stock plans) shall automatically accelerate so that each Stock
Option shall become fully exercisable with respect to the total number of
shares subject to such stock option and may be exercised for any or all of
those shares as fully-vested shares of common stock as of such date,
without regard to the conditions expressed in the agreements relating to
such stock option.
10. Trade Secrets and Confidential Information. During his employment by
the Company, and for a period of five years thereafter, the Executive shall not,
directly or indirectly, use, disseminate, or disclose for any purpose other than
for the purposes of the Company's business, any of the Company's confidential
information or trade secrets, unless such disclosure is compelled in a judicial
proceeding: The Executive acknowledges access to, and receipt of, such
confidential information. Upon termination of his employment, all documents,
records, notebooks, and similar repositories of records containing information
relating to any trade secrets or confidential information then in the
Executive's possession or control, whether prepared by him or by others, shall
be left with the Company or returned to the Company upon request. The Executive
shall notify future employers of the existence of this confidentiality
provision.
11. Severability. It is the desire and intent of the parties that the provisions
of Sections 8 and 10 shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular sentence or portion of
either Section 8 or 10 shall be adjudicated to be invalid or unenforceable,
the remaining portions of such section nevertheless shall continue to be
valid and enforceable as though the invalid portions were not a part thereof.
In the event that any of the provisions of Section 8 relating to the
geographic areas of restriction or the period of restriction shall be deemed
to exceed the maximum area or period of time which a court of competent
jurisdiction would deem enforceable, the geographic areas and times shall,
for the purposes of this Agreement, be deemed to be the maximum areas of time
periods which a court of competent jurisdiction would deem valid and
enforceable in any state in which such court of competent jurisdiction shall
be convened.
12. Injunctive Relief. The Executive agrees that any violation by him of the
agreements contained in sections 8 and 10 are likely to cause irreparable
damage to the Company, and therefore agrees that if there is a breach or
threatened breach by the Executive of the provisions of said sections, the
Company shall be entitled to an injunction restraining the Executive from
such breach. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies for such breach or threatened breach.
13. Miscellaneous.
(i) Notices. Any notice required or permitted to be given under this
Agreement shall be directed to the appropriate party in writing and
mailed or delivered,
to the Company:
10261 Tejon Street
Westminster CO 80234
Attn: President
to the Executive:
Douglass T. Simpson
(address)
(j) Binding effect. This Agreement is a personal service agreement and may not
be assigned by the Company or the Executive, except that the Company may
assign this Agreement to a successor by merger, consolidation, sale of
assets or other reorganization. Subject to the forgoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, and legal representatives.
(k) Amendment. This Agreement may not be amended except by an instrument in
writing executed by each of the parties hereto.
(l) Applicable Law. This Agreement shall be governed by the laws of the State
of Colorado, and the venue of any action or proceeding under this
Agreement shall take place in the City and County of Denver, Colorado.
(m) Counterparts. This instrument may be executed in one or more
counterparts, each of which shall be deemed as original.
(n) Arbitration. Should any dispute arise concerning the terms and conditions
of this Agreement, or the breach thereof, and such dispute cannot be first
resolved informally, the parties hereto agree to submit any dispute
arising out of, or relating to, this Agreement, or the breach thereof, to
binding arbitration governed by the American Arbitration Association.
(o) Entire Agreement. This Agreement supersedes and replaces all prior
agreements between the parties related to the employment of the
Executive by the Company.
(p) Advice of Counsel. Executive acknowledges that he has had the opportunity
to seek the advice of counsel relating to this Agreement prior to
execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Corgenix Medical Corporation Executive
s/ Luis R. Lopez s/ Douglass T. Simpson
Luis R. Lopez, MD Douglass T. Simpson
CEO
MANAGEMENT AGREEMENT
This agreement is made and entered into as of April 1, 2001 between Corgenix
Medical Corporation, a Nevada corporation (the "Company"), and Ann L.
Steinbarger (the "Executive").
The Company currently employs or intends to employ the Executive in the position
of Vice President Sales and Marketing. The Company and the Executive desire to
enter into an Employment Agreement setting forth the terms of the Executive's
employment in such capacities by the Company. In consideration of the mutual
promise contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
19. Employment; Position; Term. The Company and the Executive hereby agree to
the Executive's employment by the Company in the position of Vice President
Sales and Marketing (the "Position"). Subject to Section 4, the term of this
employment shall be for thirty-six (36) months, beginning April 1, 2001 and
it shall be continuously renewed and extended, unless otherwise terminated as
provided for herein, so that it shall be effective for thirty-six (36) months
from any date, irrespective of the anniversary date of this Agreement.
20. Duties; Responsibilities and Authority. In her capacities in the Position,
the Executive shall have the primary executive responsibility for the North
American sales, and the worldwide marketing and business development of the
Company, which shall be conducted in accordance with policies established by
the Company's board of directors (the "Board"). In her capacities in the
Position, the Executive shall report to and be subject to the direction and
control of the President and the Board. The Executive shall devote her full
professional and managerial time and effort to the performance of her duties
as Vice President Sales and Marketing of the Company and she shall not engage
in any other business activity or activities which, in the mutual judgement
of the Executive and the Board, do, in fact, conflict with the performance of
her duties under this Agreement, unless agreed to in writing by the Board and
attached to this agreement. Furthermore, subject to the specific direction of
the President and general direction and control of the Board, the Executive
shall be in complete charge of the North American sales, and the worldwide
marketing and business development of the Company and shall have full
authority and responsibility for formulating policies and administering the
North American sales, and the worldwide marketing and business development of
the Company in all respects. Both the Company and the Executive acknowledge
that the services to be provided by Executive are critical to the Company's
business.
21. Compensation.
(k) Salary and incentive compensation. For services rendered under this
Agreement, the Company shall pay the Executive a monthly salary of $
10,416 paid semi-monthly at the rate of $ 5,208 beginning April 1, 2001.
In addition, each year during the term of this Agreement, the Executive
shall be eligible to receive additional incentive compensation as shall be
determined by the President and approved by the Board.
(l) Annual review. The Executive's salary shall be reviewed annually beginning
with the first anniversary of the date first written above, and it may be
increased (but not decreased) as the President and Board deems
appropriate.
(m) Automobile expense reimbursement. The Company shall reimburse the
Executive in the amount of $500.00 per month for reasonable and necessary
automobile expenses to be incurred by the Executive in connection with her
employment by the Company.
(n) Benefits and Vacation. The Executive shall be eligible to participate in
such insurance programs (health, disability, or life) or such other
health, dental, retirement, or similar employee benefits programs as the
Board may approve, on as basis at least as favorable, as well as
comparable to that available to other officers and executive employees
of the Company. The Executive may participate in stock option programs
of the Company upon such terms as the administrators of such programs in
their discretion determine. The Executive shall be entitled to paid time
off from work at the discretion of the President. The value of any
unused vacation time shall not be paid to the Executive upon termination
of her employment for any reason.
(o) Reimbursement of Expenses.. The Company shall reimburse the Executive for
all reasonable out-of pocket expenses incurred by the Executive in
connection with the business of the Company and in the performance of her
duties under this Agreement upon the Executive's presentation to the
Company of an itemized accounting of such expenses with reasonable
supporting data.
22. Termination. Either party may terminate the Executive's employment under
this Agreement, without cause, upon one (1) month's written advance notice to
the other party. The Company may terminate the Executive's employment for
"Cause" (as hereinafter defined) immediately upon written notice stating the
basis for such termination. "Cause" for termination of the Executive's
employment shall only be deemed to exist if the Executive has breached this
Agreement, exhibited willful disobedience of directions of the Board, or
committed gross malfeasance in performance of her duties hereunder or acts
resulting in an indictment charging the Executive with commission of a
felony; provided that the commission of acts resulting in such an indictment
shall constitute Cause only if a majority of the directors who are not also
subject to any such indictment determine that the Executive's conduct has
substantially adversely affected the Company or its reputation. A material
failure to perform her duties hereunder that results from the disability of
the Executive shall not be considered Cause for her termination.
23. Death. In the event of the death of the Executive, except with respect to
any benefits which have accrued and have not been paid to the Executive
hereunder, the provisions of this Employment Agreement shall terminate
immediately. However, the Executive's estate shall have the right to receive
compensation due to the Executive as of and to the date of her death and,
furthermore, to receive an additional amount equal to one twelfth (1/12) of
the Executive's annual compensation then in effect as specified in Section 3,
above.
24. Severance Pay. In the event that the Executive's employment is terminated by
the Company other than "for cause", the Executive shall be entitled to
receive her then current compensation, payable at the company's regular
payment intervals, and all employee benefits, for twelve (12) months
following the date of the Executive's termination by the Company. If the
Executive truly voluntarily resigns her employment hereunder, or if her
employment is terminated for Cause, the Executive shall not be entitled to
any severance pay or other compensation beyond the date of termination of her
employment.
25. Change of Control Payment. "Change in Control" shall mean a change in
ownership or control of the Company effected through any of the following
transactions:
(i) the acquisition, directly or indirectly by any person or group other than
a trustee or other fiduciary holding securities under an employee benefit
plan of the Company, of beneficial ownership of securities possessing more
than thirty percent (30%) of the total combined voting power of the.
Company's outstanding securities, excluding an initial or secondary public
offerings;
(ii) a stockholder-approved merger or consolidation to which the
Company is a party and in which (A) the Company is not the surviving
entity or (B) securities possessing more than thirty percent (30%) of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons holding
those securities immediately prior to such transaction.
In the event of a change of control, as set forth in this Paragraph 6, the
Executive shall be entitled to receive a lump sum payment equal to sixty (60)
months of her then current compensation and all employee benefits.
26. Covenant Not to Compete. During the continuance of her employment hereunder
and for a period of twelve (12) months after termination of her employment
hereunder, the Executive shall not, anywhere in the United States, engage in
any business which competes directly with the Company. The Company and the
Executive both acknowledge the importance and value of the Executive's
services to the Company.
27. Acceleration of Vesting.
(iii) In the event of a Change in Control of the Company, all awards due to the
Executive outstanding under the Company's 1999 Incentive Stock Plan (or
other incentive stock plans) as of the day before the consummation of such
Change in Control shall automatically accelerate so that each Stock Option
shall become fully exercisable with respect to the total number of shares
subject to such stock option and may be exercised for any or all of those
shares as fully-vested shares of common stock as of such date, without
regard to the conditions expressed in the agreements relating to such
stock option.
(ii) In the event that the Executive's employment is terminated by the
Company other than "for cause", all awards due to the Executive
outstanding under the Company's 1999 Incentive Stock Plan (or other
incentive stock plans) shall automatically accelerate so that each Stock
Option shall become fully exercisable with respect to the total number of
shares subject to such stock option and may be exercised for any or all of
those shares as fully-vested shares of common stock as of such date,
without regard to the conditions expressed in the agreements relating to
such stock option.
10. Trade Secrets and Confidential Information. During her employment by
the Company, and for a period of five years thereafter, the Executive shall not,
directly or indirectly, use, disseminate, or disclose for any purpose other than
for the purposes of the Company's business, any of the Company's confidential
information or trade secrets, unless such disclosure is compelled in a judicial
proceeding: The Executive acknowledges access to, and receipt of, such
confidential information. Upon termination of her employment, all documents,
records, notebooks, and similar repositories of records containing information
relating to any trade secrets or confidential information then in the
Executive's possession or control, whether prepared by her or by others, shall
be left with the Company or returned to the Company upon request. The Executive
shall notify future employers of the existence of this confidentiality
provision.
11. Severability. It is the desire and intent of the parties that the provisions
of Sections 8 and 10 shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular sentence or portion of
either Section 8 or 10 shall be adjudicated to be invalid or unenforceable,
the remaining portions of such section nevertheless shall continue to be
valid and enforceable as though the invalid portions were not a part thereof.
In the event that any of the provisions of Section 8 relating to the
geographic areas of restriction or the period of restriction shall be deemed
to exceed the maximum area or period of time which a court of competent
jurisdiction would deem enforceable, the geographic areas and times shall,
for the purposes of this Agreement, be deemed to be the maximum areas of time
periods which a court of competent jurisdiction would deem valid and
enforceable in any state in which such court of competent jurisdiction shall
be convened.
12. Injunctive Relief. The Executive agrees that any violation by her of the
agreements contained in sections 8 and 10 are likely to cause irreparable
damage to the Company, and therefore agrees that if there is a breach or
threatened breach by the Executive of the provisions of said sections, the
Company shall be entitled to an injunction restraining the Executive from
such breach. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies for such breach or threatened breach.
13. Miscellaneous.
(q) Notices. Any notice required or permitted to be given under this
Agreement shall be directed to the appropriate party in writing and
mailed or delivered,
to the Company:
10261 Tejon Street
Westminster CO 80234
Attn: President
to the Executive:
Ann L. Steinbarger
(address)
(r) Binding effect. This Agreement is a personal service agreement and may not
be assigned by the Company or the Executive, except that the Company may
assign this Agreement to a successor by merger, consolidation, sale of
assets or other reorganization. Subject to the forgoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, and legal representatives.
(s) Amendment. This Agreement may not be amended except by an instrument in
writing executed by each of the parties hereto.
(t) Applicable Law. This Agreement shall be governed by the laws of the State
of Colorado, and the venue of any action or proceeding under this
Agreement shall take place in the City and County of Denver, Colorado.
(u) Counterparts. This instrument may be executed in one or more
counterparts, each of which shall be deemed as original.
(v) Arbitration. Should any dispute arise concerning the terms and conditions
of this Agreement, or the breach thereof, and such dispute cannot be first
resolved informally, the parties hereto agree to submit any dispute
arising out of, or relating to, this Agreement, or the breach thereof, to
binding arbitration governed by the American Arbitration Association.
(w) Entire Agreement. This Agreement supersedes and replaces all prior
agreements between the parties related to the employment of the
Executive by the Company.
(x) Advice of Counsel. Executive acknowledges that she has had the opportunity
to seek the advice of counsel relating to this Agreement prior to
execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Corgenix Medical Corporation Executive
s/ Douglass T. Simpson s/ Ann L. Steinbarger
Douglass T. Simpson Ann L. Steinbarger
President
MANAGEMENT AGREEMENT
This agreement is made and entered into as of April 1, 2001 between Corgenix
Medical Corporation, a Nevada corporation (the "Company"), and Taryn G. Reynolds
(the "Executive").
The Company currently employs or intends to employ the Executive in the position
of Vice President Technology. The Company and the Executive desire to enter into
an Employment Agreement setting forth the terms of the Executive's employment in
such capacities by the Company. In consideration of the mutual promise contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
28. Employment; Position; Term. The Company and the Executive hereby agree to
the Executive's employment by the Company in the position of Vice President
Technology (the "Position"). Subject to Section 4, the term of this
employment shall be for thirty-six (36) months, beginning April 1, 2001 and
it shall be continuously renewed and extended, unless otherwise terminated as
provided for herein, so that it shall be effective for thirty-six (36) months
from any date, irrespective of the anniversary date of this Agreement.
29. Duties; Responsibilities and Authority. In his capacities in the Position,
the Executive shall have the primary executive responsibility for the
information and communication technology of the Company, which shall be
conducted in accordance with policies established by the Company's board of
directors (the "Board"). In his capacities in the Position, the Executive
shall report to and be subject to the direction and control of the President.
The Executive shall devote his full professional and managerial time and
effort to the performance of his duties as Vice President Technology of the
Company and he shall not engage in any other business activity or activities
which, in the mutual judgement of the Executive and the Board, do, in fact,
conflict with the performance of his duties under this Agreement, unless
agreed to in writing by the Board and attached to this agreement.
Furthermore, subject to the specific direction of the President and general
direction and control of the Board, the Executive shall be in complete charge
of the information and communication technology of the Company and shall have
full authority and responsibility for formulating policies and administering
the information and communication technology of the Company in all respects.
Both the Company and the Executive acknowledge that the services to be
provided by Executive are critical to the Company's business.
30. Compensation.
(p) Salary and incentive compensation. For services rendered under this
Agreement, the Company shall pay the Executive a monthly salary of $ 8,333
paid semi-monthly at the rate of $ 4,166 beginning April 1, 2001. In
addition, each year during the term of this Agreement, the Executive shall
be eligible to receive additional incentive compensation as shall be
determined by the President and approved by the Board.
(q) Annual review. The Executive's salary shall be reviewed annually beginning
with the first anniversary of the date first written above, and it may be
increased (but not decreased) as the President and Board deems
appropriate.
(r) Automobile expense reimbursement. The Company shall reimburse the
Executive in the amount of $500.00 per month for reasonable and necessary
automobile expenses to be incurred by the Executive in connection with his
employment by the Company.
(s) Benefits and Vacation. The Executive shall be eligible to participate in
such insurance programs (health, disability, or life) or such other
health, dental, retirement, or similar employee benefits programs as the
Board may approve, on as basis at least as favorable, as well as
comparable to that available to other officers and executive employees
of the Company. The Executive may participate in stock option programs
of the Company upon such terms as the administrators of such programs in
their discretion determine. The Executive shall be entitled to paid time
off from work at the discretion of the President. The value of any
unused vacation time shall not be paid to the Executive upon termination
of his employment for any reason.
(t) Reimbursement of Expenses.. The Company shall reimburse the Executive for
all reasonable out-of pocket expenses incurred by the Executive in
connection with the business of the Company and in the performance of his
duties under this Agreement upon the Executive's presentation to the
Company of an itemized accounting of such expenses with reasonable
supporting data.
31. Termination. Either party may terminate the Executive's employment under
this Agreement, without cause, upon one (1) month's written advance notice to
the other party. The Company may terminate the Executive's employment for
"Cause" (as hereinafter defined) immediately upon written notice stating the
basis for such termination. "Cause" for termination of the Executive's
employment shall only be deemed to exist if the Executive has breached this
Agreement, exhibited willful disobedience of directions of the Board, or
committed gross malfeasance in performance of his duties hereunder or acts
resulting in an indictment charging the Executive with commission of a
felony; provided that the commission of acts resulting in such an indictment
shall constitute Cause only if a majority of the directors who are not also
subject to any such indictment determine that the Executive's conduct has
substantially adversely affected the Company or its reputation. A material
failure to perform his duties hereunder that results from the disability of
the Executive shall not be considered Cause for his termination.
32. Death. In the event of the death of the Executive, except with respect to
any benefits which have accrued and have not been paid to the Executive
hereunder, the provisions of this Employment Agreement shall terminate
immediately. However, the Executive's estate shall have the right to receive
compensation due to the Executive as of and to the date of his death and,
furthermore, to receive an additional amount equal to one twelfth (1/12) of
the Executive's annual compensation then in effect as specified in Section 3,
above.
33. Severance Pay. In the event that the Executive's employment is terminated by
the Company other than "for cause", the Executive shall be entitled to
receive his then current compensation, payable at the company's regular
payment intervals, and all employee benefits, for twelve (12) months
following the date of the Executive's termination by the Company. If the
Executive truly voluntarily resigns his employment hereunder, or if his
employment is terminated for Cause, the Executive shall not be entitled to
any severance pay or other compensation beyond the date of termination of his
employment.
34. Change of Control Payment. "Change in Control" shall mean a change in
ownership or control of the Company effected through any of the following
transactions:
(i) the acquisition, directly or indirectly by any person or group other than
a trustee or other fiduciary holding securities under an employee benefit
plan of the Company, of beneficial ownership of securities possessing more
than thirty percent (30%) of the total combined voting power of the.
Company's outstanding securities, excluding an initial or secondary public
offerings;
(ii) a stockholder-approved merger or consolidation to which the
Company is a party and in which (A) the Company is not the surviving
entity or (B) securities possessing more than thirty percent (30%) of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons holding
those securities immediately prior to such transaction.
In the event of a change of control, as set forth in this Paragraph 6, the
Executive shall be entitled to receive a lump sum payment equal to sixty (60)
months of his then current compensation and all employee benefits.
35. Covenant Not to Compete. During the continuance of his employment hereunder
and for a period of twelve (12) months after termination of his employment
hereunder, the Executive shall not, anywhere in the United States, engage in
any business which competes directly with the Company. The Company and the
Executive both acknowledge the importance and value of the Executive's
services to the Company.
36. Acceleration of Vesting.
(iv) In the event of a Change in Control of the Company, all awards due to the
Executive outstanding under the Company's 1999 Incentive Stock Plan (or
other incentive stock plans) as of the day before the consummation of such
Change in Control shall automatically accelerate so that each Stock Option
shall become fully exercisable with respect to the total number of shares
subject to such stock option and may be exercised for any or all of those
shares as fully-vested shares of common stock as of such date, without
regard to the conditions expressed in the agreements relating to such
stock option.
(ii) In the event that the Executive's employment is terminated by the
Company other than "for cause", all awards due to the Executive
outstanding under the Company's 1999 Incentive Stock Plan (or other
incentive stock plans) shall automatically accelerate so that each Stock
Option shall become fully exercisable with respect to the total number of
shares subject to such stock option and may be exercised for any or all of
those shares as fully-vested shares of common stock as of such date,
without regard to the conditions expressed in the agreements relating to
such stock option.
10. Trade Secrets and Confidential Information. During his employment by
the Company, and for a period of five years thereafter, the Executive shall not,
directly or indirectly, use, disseminate, or disclose for any purpose other than
for the purposes of the Company's business, any of the Company's confidential
information or trade secrets, unless such disclosure is compelled in a judicial
proceeding: The Executive acknowledges access to, and receipt of, such
confidential information. Upon termination of his employment, all documents,
records, notebooks, and similar repositories of records containing information
relating to any trade secrets or confidential information then in the
Executive's possession or control, whether prepared by him or by others, shall
be left with the Company or returned to the Company upon request. The Executive
shall notify future employers of the existence of this confidentiality
provision.
11. Severability. It is the desire and intent of the parties that the provisions
of Sections 8 and 10 shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular sentence or portion of
either Section 8 or 10 shall be adjudicated to be invalid or unenforceable,
the remaining portions of such section nevertheless shall continue to be
valid and enforceable as though the invalid portions were not a part thereof.
In the event that any of the provisions of Section 8 relating to the
geographic areas of restriction or the period of restriction shall be deemed
to exceed the maximum area or period of time which a court of competent
jurisdiction would deem enforceable, the geographic areas and times shall,
for the purposes of this Agreement, be deemed to be the maximum areas of time
periods which a court of competent jurisdiction would deem valid and
enforceable in any state in which such court of competent jurisdiction shall
be convened.
12. Injunctive Relief. The Executive agrees that any violation by him of the
agreements contained in sections 8 and 10 are likely to cause irreparable
damage to the Company, and therefore agrees that if there is a breach or
threatened breach by the Executive of the provisions of said sections, the
Company shall be entitled to an injunction restraining the Executive from
such breach. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies for such breach or threatened breach.
13. Miscellaneous.
(y) Notices. Any notice required or permitted to be given under this
Agreement shall be directed to the appropriate party in writing and
mailed or delivered,
to the Company:
10261 Tejon Street
Westminster CO 80234
Attn: President
to the Executive:
Taryn G Reynolds
(address)
(z) Binding effect. This Agreement is a personal service agreement and may not
be assigned by the Company or the Executive, except that the Company may
assign this Agreement to a successor by merger, consolidation, sale of
assets or other reorganization. Subject to the forgoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, and legal representatives.
(aa) Amendment. This Agreement may not be amended except by an instrument in
writing executed by each of the parties hereto.
(bb) Applicable Law. This Agreement shall be governed by the laws of the State
of Colorado, and the venue of any action or proceeding under this
Agreement shall take place in the City and County of Denver, Colorado.
(cc) Counterparts. This instrument may be executed in one or more
counterparts, each of which shall be deemed as original.
(dd) Arbitration. Should any dispute arise concerning the terms and conditions
of this Agreement, or the breach thereof, and such dispute cannot be first
resolved informally, the parties hereto agree to submit any dispute
arising out of, or relating to, this Agreement, or the breach thereof, to
binding arbitration governed by the American Arbitration Association.
(ee) Entire Agreement. This Agreement supersedes and replaces all prior
agreements between the parties related to the employment of the
Executive by the Company.
(ff) Advice of Counsel. Executive acknowledges that he has had the opportunity
to seek the advice of counsel relating to this Agreement prior to
execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Corgenix Medical Corporation Executive
s/ Douglass T. Simpson s/ Taryn G. Reynolds
Douglass T. Simpson Taryn G. Reynolds
President
MANAGEMENT AGREEMENT
This agreement is made and entered into as of April 1, 2001 between Corgenix
Medical Corporation, a Nevada corporation (the "Company"), and Catherine A. Fink
(the "Executive").
The Company currently employs or intends to employ the Executive in the position
of Vice President and General Manager. The Company and the Executive desire to
enter into an Employment Agreement setting forth the terms of the Executive's
employment in such capacities by the Company. In consideration of the mutual
promise contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
37. Employment; Position; Term. The Company and the Executive hereby agree to
the Executive's employment by the Company in the position of Vice President
and General Manager (the "Position"). Subject to Section 4, the term of this
employment shall be for thirty-six (36) months, beginning April 1, 2001 and
it shall be continuously renewed and extended, unless otherwise terminated as
provided for herein, so that it shall be effective for thirty-six (36) months
from any date, irrespective of the anniversary date of this Agreement.
38. Duties; Responsibilities and Authority. In her capacities in the Position,
the Executive shall have the primary executive responsibility for the
operations of Corgenix, Inc. ("Corgenix, Inc.") including product
development, quality, product support and manufacturing, which shall be
conducted in accordance with policies established by the Company's board of
directors (the "Board"). In her capacities in the Position, the Executive
shall report to and be subject to the direction and control of the President
and the Board. The Executive shall devote her full professional and
managerial time and effort to the performance of her duties as Vice President
and General Manager of the Company and she shall not engage in any other
business activity or activities which, in the mutual judgement of the
Executive and the Board, do, in fact, conflict with the performance of her
duties under this Agreement, unless agreed to in writing by the Board and
attached to this agreement. Furthermore, subject to the specific direction of
the President and general direction and control of the Board, the Executive
shall be in complete charge of the operations of Corgenix, Inc. including
product development, quality, product support and manufacturing, and shall
have full authority and responsibility for formulating policies and
administering that part of the Company's business in all respects. Both the
Company and the Executive acknowledge that the services to be provided by
Executive are critical to the Company's business.
39. Compensation.
(u) Salary and incentive compensation. For services rendered under this
Agreement, the Company shall pay the Executive a monthly salary of $ 8,333
paid semi-monthly at the rate of $ 4,166 beginning April 1, 2001. In
addition, each year during the term of this Agreement, the Executive shall
be eligible to receive additional incentive compensation as shall be
determined by the President and approved by the Board.
(v) Annual review. The Executive's salary shall be reviewed annually beginning
with the first anniversary of the date first written above, and it may be
increased (but not decreased) as the President and Board deems
appropriate.
(w) Automobile expense reimbursement. The Company shall reimburse the
Executive in the amount of $500.00 per month for reasonable and necessary
automobile expenses to be incurred by the Executive in connection with her
employment by the Company.
(x) Benefits and Vacation. The Executive shall be eligible to participate in
such insurance programs (health, disability, or life) or such other
health, dental, retirement, or similar employee benefits programs as the
Board may approve, on as basis at least as favorable, as well as
comparable to that available to other officers and executive employees
of the Company. The Executive may participate in stock option programs
of the Company upon such terms as the administrators of such programs in
their discretion determine. The Executive shall be entitled to paid time
off from work at the discretion of the President. The value of any
unused vacation time shall not be paid to the Executive upon termination
of her employment for any reason.
(y) Reimbursement of Expenses.. The Company shall reimburse the Executive for
all reasonable out-of pocket expenses incurred by the Executive in
connection with the business of the Company and in the performance of her
duties under this Agreement upon the Executive's presentation to the
Company of an itemized accounting of such expenses with reasonable
supporting data.
40. Termination. Either party may terminate the Executive's employment under
this Agreement, without cause, upon one (1) month's written advance notice to
the other party. The Company may terminate the Executive's employment for
"Cause" (as hereinafter defined) immediately upon written notice stating the
basis for such termination. "Cause" for termination of the Executive's
employment shall only be deemed to exist if the Executive has breached this
Agreement, exhibited willful disobedience of directions of the Board, or
committed gross malfeasance in performance of her duties hereunder or acts
resulting in an indictment charging the Executive with commission of a
felony; provided that the commission of acts resulting in such an indictment
shall constitute Cause only if a majority of the directors who are not also
subject to any such indictment determine that the Executive's conduct has
substantially adversely affected the Company or its reputation. A material
failure to perform her duties hereunder that results from the disability of
the Executive shall not be considered Cause for her termination.
41. Death. In the event of the death of the Executive, except with respect to
any benefits which have accrued and have not been paid to the Executive
hereunder, the provisions of this Employment Agreement shall terminate
immediately. However, the Executive's estate shall have the right to receive
compensation due to the Executive as of and to the date of her death and,
furthermore, to receive an additional amount equal to one twelfth (1/12) of
the Executive's annual compensation then in effect as specified in Section 3,
above.
42. Severance Pay. In the event that the Executive's employment is terminated by
the Company other than "for cause", the Executive shall be entitled to
receive her then current compensation, payable at the company's regular
payment intervals, and all employee benefits, for twelve (12) months
following the date of the Executive's termination by the Company. If the
Executive truly voluntarily resigns her employment hereunder, or if her
employment is terminated for Cause, the Executive shall not be entitled to
any severance pay or other compensation beyond the date of termination of her
employment.
43. Change of Control Payment. "Change in Control" shall mean a change in
ownership or control of the Company effected through any of the following
transactions:
(i) the acquisition, directly or indirectly by any person or group other than
a trustee or other fiduciary holding securities under an employee benefit
plan of the Company, of beneficial ownership of securities possessing more
than thirty percent (30%) of the total combined voting power of the.
Company's outstanding securities, excluding an initial or secondary public
offerings;
(ii) a stockholder-approved merger or consolidation to which the
Company is a party and in which (A) the Company is not the surviving
entity or (B) securities possessing more than thirty percent (30%) of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons holding
those securities immediately prior to such transaction.
In the event of a change of control, as set forth in this Paragraph 6, the
Executive shall be entitled to receive a lump sum payment equal to sixty (60)
months of her then current compensation and all employee benefits.
44. Covenant Not to Compete. During the continuance of her employment hereunder
and for a period of twelve (12) months after termination of her employment
hereunder, the Executive shall not, anywhere in the United States, engage in
any business which competes directly with the Company. The Company and the
Executive both acknowledge the importance and value of the Executive's
services to the Company.
45. Acceleration of Vesting.
(v) In the event of a Change in Control of the Company, all awards due to
the Executive outstanding under the Company's 1999 Incentive Stock Plan
(or other incentive stock plans) as of the day before the consummation
of such Change in Control shall automatically accelerate so that each
Stock Option shall become fully exercisable with respect to the total
number of shares subject to such stock option and may be exercised for
any or all of those shares as fully-vested shares of common stock as of
such date, without regard to the conditions expressed in the agreements
relating to such stock option.
(ii) In the event that the Executive's employment is terminated by the
Company other than "for cause", all awards due to the Executive
outstanding under the Company's 1999 Incentive Stock Plan (or other
incentive stock plans) shall automatically accelerate so that each Stock
Option shall become fully exercisable with respect to the total number of
shares subject to such stock option and may be exercised for any or all of
those shares as fully-vested shares of common stock as of such date,
without regard to the conditions expressed in the agreements relating to
such stock option.
10. Trade Secrets and Confidential Information. During her employment by
the Company, and for a period of five years thereafter, the Executive shall not,
directly or indirectly, use, disseminate, or disclose for any purpose other than
for the purposes of the Company's business, any of the Company's confidential
information or trade secrets, unless such disclosure is compelled in a judicial
proceeding: The Executive acknowledges access to, and receipt of, such
confidential information. Upon termination of her employment, all documents,
records, notebooks, and similar repositories of records containing information
relating to any trade secrets or confidential information then in the
Executive's possession or control, whether prepared by her or by others, shall
be left with the Company or returned to the Company upon request. The Executive
shall notify future employers of the existence of this confidentiality
provision.
11. Severability. It is the desire and intent of the parties that the provisions
of Sections 8 and 10 shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular sentence or portion of
either Section 8 or 10 shall be adjudicated to be invalid or unenforceable,
the remaining portions of such section nevertheless shall continue to be
valid and enforceable as though the invalid portions were not a part thereof.
In the event that any of the provisions of Section 8 relating to the
geographic areas of restriction or the period of restriction shall be deemed
to exceed the maximum area or period of time which a court of competent
jurisdiction would deem enforceable, the geographic areas and times shall,
for the purposes of this Agreement, be deemed to be the maximum areas of time
periods which a court of competent jurisdiction would deem valid and
enforceable in any state in which such court of competent jurisdiction shall
be convened.
12. Injunctive Relief. The Executive agrees that any violation by her of the
agreements contained in sections 8 and 10 are likely to cause irreparable
damage to the Company, and therefore agrees that if there is a breach or
threatened breach by the Executive of the provisions of said sections, the
Company shall be entitled to an injunction restraining the Executive from
such breach. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies for such breach or threatened breach.
13. Miscellaneous.
(gg) Notices. Any notice required or permitted to be given under this
Agreement shall be directed to the appropriate party in writing and
mailed or delivered,
to the Company:
10261 Tejon Street
Westminster CO 80234
Attn: President
to the Executive:
Catherine A. Fink
(address)
(hh) Binding effect. This Agreement is a personal service agreement and may not
be assigned by the Company or the Executive, except that the Company may
assign this Agreement to a successor by merger, consolidation, sale of
assets or other reorganization. Subject to the forgoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, and legal representatives.
(ii) Amendment. This Agreement may not be amended except by an instrument in
writing executed by each of the parties hereto.
(jj) Applicable Law. This Agreement shall be governed by the laws of the State
of Colorado, and the venue of any action or proceeding under this
Agreement shall take place in the City and County of Denver, Colorado.
(kk) Counterparts. This instrument may be executed in one or more
counterparts, each of which shall be deemed as original.
(ll) Arbitration. Should any dispute arise concerning the terms and conditions
of this Agreement, or the breach thereof, and such dispute cannot be first
resolved informally, the parties hereto agree to submit any dispute
arising out of, or relating to, this Agreement, or the breach thereof, to
binding arbitration governed by the American Arbitration Association.
(mm) Entire Agreement. This Agreement supersedes and replaces all prior
agreements between the parties related to the employment of the
Executive by the Company.
(nn) Advice of Counsel. Executive acknowledges that she has had the opportunity
to seek the advice of counsel relating to this Agreement prior to
execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Corgenix Medical Corporation Executive
s/ Douglass T. Simpson s/ Catherine A. Fink
Douglass T. Simpson Catherine A. Fink
President
Consulting Agreement
This Agreement is entered into on April 10, 2001 by and between Corgenix Medical
Corporation., a Nevada corporation located at 12061 Tejon Street Westminster, CO
80234 ("COGX" or the "Company") and Bathgate McColley Capital Group, LLC. (the
"ADVISER"), located at 5350 South Roslyn Roslyn Street, Englewood, CO 80111.
WHEREAS, the Adviser has considerable investor relations, corporate finance and
research experience in the area of small and micro-cap companies;
WHEREAS, COGX is desirous of expanding the exposure and knowledge of COGX,
and interest in COGX in the investor community;
WHEREAS, COGX desires to engage the services of the ADVISER, on a non-exclusive
basis, to assist COGX in expanding the investor community and securities
analysts' knowledge of COGX; and,
WHEREAS, the parties desire that their efforts be governed by the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Engagement. COGX hereby engages the ADVISER to consult with and advise
COGX with respect to corporate finance and investor relations activities
and opportunities and the ADVISER accepts such engagement on the terms
and conditions hereby set forth.
2. Consulting Services. For a term of 36 months commencing on the date of
this Agreement, the ADVISER shall consult and advise COGX, as to
investor relations and market conditions for the Company's securities.
The ADVISER shall also make recommendations to the Company's management
and Directors regarding private and public debt and equity financing,
acquisitions, potential strategic partnerships, or investors, mergers
and other business combinations. The Advisers will negotiate and
present, the best interest of the COMPANY to the financial community and
investment banking institutions; or potential strategic partners. Such
advice and consultation are hereinafter referred to as "Consulting
Services." The Consulting Services shall be provided by the ADVISER to
COGX in such form, manner and place, as COGX shall make reasonable
requests from time to time.
i. In conjunction with the capital and business planning function, the
ADVISER will use its best abilities to identify potential
investors and/or debt and equity financing sources to meet the
objectives of the capital plan. The Adviser will assist the
Company in meeting with potential accredited investors including
institutional investors. In conjunction with the financing
efforts the ADVISER will assist the Company in preparing a
private placement memorandum under REGULATION D for use in any
proposed selling effort involving the Company's securities. Any
fees which the ADVISER becomes entitled to receive from the
Company as a registered broker/dealer shall be set forth in a
separate agreement between the Company and the ADVISER.
The ADVISER shall not be prevented or barred from rendering Consulting Services
of the same or similar nature, as herein described, or services of any nature
whatsoever for, or on behalf of, persons or entities other than COGX. Similarly,
COGX shall not be prevented or barred from seeking or requiring services of a
same or similar nature from persons other than the ADVISER. The ADVISER shall
seek to enhance shareholder value and broaden the base of investors following
COGX through:
(a) coordinating and orchestrating institutional road shows (b)
coordinating and orchestrating retail brokerage road shows (c) providing
additional exposure to research analysts (d) providing exposure to
newsletter and investment Advisory publishers
(e) providing financial public relations advice regarding investor
communications
The ADVISER shall assist COGX with Corporate presentation slide shows to
investor and investment community audiences.
3. Compensation. As compensation to the ADVISER for services to be rendered
pursuant to this Agreement, COGX shall, upon execution of this
Agreement, pay to Bathgate McColley Capital Group, LLC a monthly fee of
$2,500. The first month's payment (April, 2001) shall be paid at the
time of the execution of this agreement with subsequent months being due
and payable on the 15th day of the month.
Additionally, COGX will issue to Bathgate McColley Capital Group, LLC
concurrently with the execution of this agreement 4 separate three year
common stock purchase warrants to purchase in aggregate 900,000 (with a
purchase price of .001 per warrant for aggregate consideration of
$900.00) shares of COGX common stock at an exercise price of 25 cents
per share, based on the following requirements. The warrants will
contain customary anti-dilution and "cashless" exercise provisions, and
may be assigned to third parties by Bathgate McColley Capital Group,
LLC, with the prior consent of COGX, which will not be unreasonably
withheld. The anti-dilution provisions are intended to apply to the
warrants in the event that the Company enters into a stock split, or
stock dividend, which would result in a proportional increase in the
outstanding shares of the Company. The anti-dilution provision will not
apply to the Company's capital raising efforts which result in newly
issued and outstanding shares being provided to investors for cash or
other consideration of value. Simultaneous with the execution of this
agreement Bathgate McColley Capital Group, LLC will provide COGX with
the full purchase price of $900.00 for the warrants.
Warrant A: 225,000 of the common stock purchase warrants will be
issued concurrently with the execution of this agreement.
Warrant B: 225,000 of the common stock purchase warrants will vest if
COGX common stock bid price as quoted on the Electronic Bulletin Board
or alternatively by a nationally recognized exchange, or NASDAQ,
exceeds 30 cents per share by September 30, 2001.
Warrant C: 225,000 of the common stock purchase warrants will vest if
COGX common stock bid price as quoted on the Electronic Bulletin Board
or alternatively by a nationally recognized exchange, or NASDAQ,
exceeds 40 cents per share by February 28, 2002.
Warrant D: 225,000 of the common stock purchase warrants will vest if
COGX common stock bid price as quoted on the Electronic Bulletin Board
or alternatively by a nationally recognized exchange, or NASDAQ,
exceeds 50 cents per share by May 31, 2002.
The warrants will not be exercisable for twelve months from the date of
this agreement and will have a term of three years.
For purposes of determining when the Warrants are earned under the
foregoing paragraphs, the stock will have been quoted by the Electronic
Bulletin Board or alternatively by a nationally recognized exchange, or
NASDAQ, where the COGX common stock bid price equals or exceeds the
price specified for twenty consecutive trading days. For purposes of
this paragraph, should the specified price level be reached prior to the
termination date, but has not traded for the specified period required
under the earnout, the termination date will extend until five
consecutive trading days from the initial date that the stock exceeded
the earnout price. If on each day of such twenty day period the stock
does not close at or in excess of the bid price the specific warrant
will terminate.
In the event that any warrant is not earned during the required period
due to the common stock not reaching the requisite share price by the
specified date, the specific warrant will be cancelled. Any cancellation
of any single one of the four warrants will not impair the rights of the
remaining common stock purchase warrants.
4. Warrant Conversion/exercise. Warrants may be exercised in any of
three ways. First, a Warrant holder may include with the Warrant
Election Form a check for the aggregate Warrant exercise price.
Second, a Warrant holder may elect a "cashless exercise." In a cashless
exercise, the Warrant holder satisfies the Warrant exercise price not by
paying cash, but by forfeiting some of the Shares which the Warrant
holder would have received upon exercise. The number of shares forfeited
will be equal to the quotient of the Warrant holder's Net Value (as
hereinafter defined) of the converted Warrant Securities, by the fair
market value of a single warrant security, determined in each case as of
the closing of business on the Conversion date. The Net Value of the
converted warrants securities shall be determined by subtracting the
aggregate exercise price of the converted warrants securities (number of
warrants X exercise price), from the aggregate fair market value of the
converted warrant securities. No fractional shares shall be issued upon
exercise of the Conversion right and if the number of securities to be
issued in accordance with the foregoing formula is other than a whole
number, the Company shall pay to the holder an amount in cash equal to
the fair market value of the resulting fractional Warrant security.
The conversion right may be exercised by the Holder by the surrender of
this warrant at the principal office of the Company, or at the office of
the Company's stock transfer agent, if any together with a written
statement specifying that the holder intends to exercise the Conversion
Right and indicating the number of Warrant securities subject to the
warrant which are being surrendered in the form attached to and by
reference incorporated in this warrant as Exhibit A, in exercise of the
conversion right. Such conversion shall be effective upon receipt by the
Company of this warrant together with the aforesaid written statement,
or on such later date as specified therein, but not later than the
expiration date of the Warrant. Certificates for the Warrant securities
issuable upon exercise of the conversion right, together with a check in
payment for any fractional Warrant security, shall be issued as of the
conversion date within seven calendar days following the conversion
date.
For purposes of the second form of exercise, the fair market value of
the Warrant Security as of a particular date shall be its market price,
which shall be determined by the closing sale price of COGX common stock
if the securities are traded on a National Exchange or NASDAQ, or if the
the common stock is otherwise traded on in the over-the-counter market
or electronic bulletin board the average of the closing bid and ask
price on the Conversion date.
Third, a warrant holder may satisfy the exercise price by turning into
the Company shares previously owned by such a warrant holder.
Fourth, the Company will commit that commencing the earlier of 12 months
from the date of this agreement, or in the event that the Company enters
into a business combination which would result in a change in control or
ownership of COGX, that the Company would provide piggyback registration
rights to the individual warrant holders for the underlying shares which
had been earned.
Concurrently with the initial issuance of the warrant, the COMPANY will
advise the transfer agent of the Company's common stock the issuance of
the warrants under a cashless exercise provision and will provide that
sufficient authorized shares remain reserved and allocated for the
future exercise of the warrants.
Exclusions: In the event that the Company determines to take a one time
non-recurring charge associated with its existing policy of capitalizing
software development costs, each unearned warrant will be extended
subsequent to the disclosure of such event, by a period of 90 days. This
exclusion would apply in the event that the Company determines that its
method of amortizing, previously capitalized software development costs,
no longer approximates the useful life of the asset, causing the Company
to determine that it should take a charge to write down, or off,
previously capitalized software development costs.
In the event that the Company fails to report net income in any
operating quarter through March 31, 2002, the term of each unearned
warrant will be extended subsequent to the disclosure of such event by a
period of 90 days.
5. Expenses. COGX shall reimburse the ADVISER, upon presentation of proper
documentation, for reasonable travel expenses (specifically approved in advance)
incurred on COGX's behalf and other reasonable direct expenses associated with
fulfilling its responsibilities in a public relations capacity that are incurred
by the ADVISER in the furtherance of the objectives of this Agreement. Public
relations direct expenses will include fees paid to national wire services, the
costs of direct mailings and placement in media of news releases, investor or
analyst conference calls and any conference attendance fees and related costs,
which the ADVISER may incur on the behalf of the Company. The Company will
additionally agree to make managerial personnel available, from time to time,
for conferences or presentations which the ADVISER arrange for the Company, with
its permission.
6. Termination. In the event COGX determines in its reasonable discretion, that
the ADVISER is not performing the services called for by this Agreement, COGX
shall give the ADVISER written notice, specifying in reasonable detail the
deficiencies identified by COGX, and the ADVISER shall have thirty (30) days to
cure such deficiencies. If the ADVISER does not cure such deficiencies to COGX's
reasonable satisfaction, this Agreement shall terminate as of such date;
provided, that the vested portion of the Warrants as of the date of termination
shall remain vested and exercisable in accordance with its terms.
In the event the Board of Directors of COGX enters into a transaction, which
results in a change in control of COGX with shareholders either being tendered
securities of a independent issuer or cash in exchange for their shares prior to
December 31, 2001, this agreement will remain in force only until the final
transfer of the third party's securities or cash and may not be terminated until
that time.
7. Amendment. Any amendment or modifications of this Agreement shall
be by written instrument signed by the parties.
8. Waiver. Any term or condition of this Agreement may be waived in writing at
any time and from time to time by the party entitled to the benefit thereof, but
a waiver of a term or condition in one instance shall not be deemed to
constitute a waiver of such term or condition in any other instance. A failure
to enforce any provision of this Agreement shall not operate as a waiver of
provision or of any other provision hereof.
9. Severability. Each provision of this Agreement shall be interpreted in a
manner as to be effective and valid under Colorado law; however if any provision
of this Agreement is held to be invalid under Colorado law, such provision will
be ineffective only to the extent of such invalidity, without invalidating the
remainder of this Agreement.
10. Assignment. Any attempt by either party to assign any right, duty
or obligation which may arise under this Agreement, without the prior written
consent of the other party, shall be void.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which may be deemed an original and all of which
together shall constitute one arid the same instrument.
12. Notices. Any notice delivered pursuant to this Agreement shall be in writing
and be deemed effective upon the date of hand delivery, or upon the date of
receipt as verified by registered or certified mail, return receipt requested,
or by a nationally recognized delivery service, to the address of the principal
business office of the party to whom it is addressed.
13. Arbitration. Except as provided below, any and all disputes arising under or
related to this Agreement which. cannot be resolved through negotiations between
the parties shall be submitted to binding arbitration. If the parties fail to
reach a settlement of their dispute within fifteen (15) days after the earliest
date upon which one of the parties notified the other(s) of its desire to
attempt to resolve the dispute, then the dispute shall be promptly submitted to
arbitration by a single arbitrator through the Judicial Arbiter Group, any
successor of the Judicial Arbiter Group ("JAG"), or any similar arbitration
provider who can provide a former judge to conduct such arbitration if JAG is no
longer in existence ("JAG"). The arbiter shall be selected by JAG on the basis,
if possible, of his or her expertise in the subject matter(s) of the dispute.
The decision of the arbitrator shall be final, non-appealable and binding upon
the parties, and it may be entered in any court of competent jurisdiction. The
arbitration shall take place in Denver, Colorado. The arbitrator shall be bound
by the laws of the State of Colorado applicable to the issues involved in the
arbitration and all Colorado rules relating to the admissibility of evidence,
including, without limitation, all relevant privileges and the attorney work
product doctrine. All discovery shall be completed in accordance with the time
limitations prescribed in the Colorado rules of civil procedure, unless
otherwise agreed by the parties or ordered by the arbitrator on the basis of
strict necessity adequately demonstrated by the party requesting an extension of
time. The arbitrator shall have the power to grant equitable relief where
applicable under Colorado law, and shall be entitled to make an award of
punitive damages when applicable under Colorado law. The arbitrator shall issue
a written opinion setting forth his or her decision and the reasons therefor
within thirty (30) days after the arbitration proceeding is concluded. The
obligation of the parties to submit any dispute arising under or related to this
Agreement to arbitration as provided in this Section shall survive the
expiration or earlier termination of this Agreement. Notwithstanding the
foregoing, either party may seek and obtain an injunction or other appropriate
relief from a court to preserve or protect trademarks, trade-names, copyrights,
patents, trade secrets or other intellectual property or proprietary information
or to preserve the status quo with respect to any matter pending conclusion of
the arbitration proceeding, but no such application to a court shall in any way
be permitted to stay or otherwise impede the progress of the arbitration
proceeding.
In the event of any arbitration or litigation being filed or instituted between
the parties concerning this Agreement, the prevailing party will be entitled to
receive from the other party or parties its attorneys' fees, witness fees, costs
and expenses, court costs and other reasonable expenses, whether or not such
controversy, claim or action is prosecuted to judgment or other form of relief.
14. Indemnification. COGX agrees to indemnify and hold ADIVISER, its affiliates,
control persons, managers, members, employees, agents and sureties harmless from
and against all losses, claims, damages, liabilities, costs or expenses
(including reasonable attorneys' and accountants' fees and the cost of any of
Consultant personnel involved in any such matter) arising out of Consultant's
entering into or performing under this Agreement, including costs arising out of
any dispute whether or not Consultant is a party to such dispute.
The Adviser agrees to indemnify and hold COGX, its affiliates, control
persons, members, employees, agents or sureties harmless and against all losses,
claims, damages, liabilities, costs or expenses(including reasonable attorneys'
and accountants' fees and the cost of any of COGX personnel involved in any such
matter)arising out of Adviser's reckless acts or breaches of law in connection
with its performance under this Agreement.
The indemnity and contribution obligations of the ADVISER under this
paragraph 12 shall survive the termination of this Agreement, shall be in
addition to any liability which the Consultant may otherwise have and shall be
binding upon and inure to the benefit of any successor, assigns, heirs and
personal representatives of the Company, ADVISER and any such person.
15. Entire Agreement. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof and this Agreement
shall be binding and inure to the benefit of the parties and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the date
first above written.
Corgenix Medical CorporationBathgate McColley Capital Group, LLC
s/ Douglass T. Simpson s/ Gene McColley
By: Douglass T.
Simpson
By: Gene McColley
Corgenix Medical Corporation
Bathgate McColley Capital Group, LLC
WARRANT AGREEMENT
Dated as of April 10, 2001
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement"), dated as of April 10, 2001, is
made and entered into by and between Corgenix Medical Corporation, a Colorado
corporation (the "Company"), and Bathgate McColley Capital Group, LLC (the
"Placement Agent" or "BMCG").
The Company agrees to issue and sell, and the Placement Agent has the
right to purchase, for the aggregate price of $900, warrants to purchase up to
an aggregate of 900,000 shares ("Shares") of the Company's Common Stock, subject
to the terms and conditions set forth below and as described in the Consulting
Agreement (the "IR Agreement") dated April 10, 2001.
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder, the Company and the Placement Agent, for value received, hereby
agree as follows:
Section 1. Definitions.
The following terms used in this agreement shall have the following
meanings (unless otherwise expressly provided herein):
1.1. The "Act." The Securities Act of 1933, as amended.
1.2. The "Commission." The Securities and Exchange Commission.
1.3. The "Company." Corgenix Medical Corporation
1.4. "Common Stock." The Company's common stock $.001par value per
share.
1.5. "Current Market Price." The Current Market Price shall be
determined as follows:
(a) if the security at issue is listed on a national securities
exchange or admitted to unlisted trading privileges on such an exchange or
quoted on either the National Market System or the Small Cap Market of the
automated quotation service operated by The Nasdaq Stock Market, Inc.
("Nasdaq"), the current value shall be the last reported sale price of
that security on such exchange or system at the close of business on the
day preceding the day for which the Current Market Price is to be
determined or, if no such sale is made on such day, the average of the
highest closing bid and lowest asked price for that day on such exchange
or system; or
(b) if the security at issue is not so listed or quoted or admitted
to unlisted trading privileges, the Current Market Value shall be the
average of the last reported highest bid and lowest asked prices quoted on
the Nasdaq Electronic Bulletin Board, or, if not so quoted, then by the
National Quotation Bureau, Inc. on the last business day prior to the day
for which the Current Market Price is to be determined; or
(c) if the security at issue is not so listed or quoted or admitted
to unlisted trading privileges and bid and asked prices are not reported,
the current market value shall be determined in such reasonable manner as
may be prescribed from time to time by the Board of Directors of the
Company, subject to the objection and arbitration procedure as described
in Section 6 below.
1.6. "Exercise Date." April 10, 2002. (see IR Agreement)
1.7. "Exercise Price." $0.25 per Share, as modified in accordance
with Section 4, below.
1.8. "Expiration Date." April 10, 2004. (see IR Agreement)
1.9. "Holder " or "Warrant Holder." Bathgate McColley Capital Group,
LLC, and any valid transferee thereof pursuant to Section 3.1 below.
1.10."NASD." The National Association of Securities Dealers, Inc.
1.11."Nasdaq." The automated quotation system operated by The Nasdaq
Stock Market, Inc.
1.12."Termination of Business." Any sale, lease or exchange of all, or
substantially all, of the Company's assets or business or any
dissolution, liquidation or winding up of the Company.
1.13."Warrant Certificate." The certificate that is issued to a Holder of
a Warrant, in the form attached hereto as Exhibit "A" and incorporated by
reference herein.
1.14."Warrants." The warrants issued in accordance with the terms of this
Agreement and any Warrants issued in substitution for or replacement of such
warrants, including those evidenced by a certificate or certificates originally
issued or issued upon division, exchange, substitution or transfer pursuant to
this Agreement.
1.15."Warrant Securities." The Common Stock purchasable upon exercise of a
Warrant including the Common Stock underlying unexercised portions of a Warrant.
Section 2. Term of Warrants; Exercise of Warrant.
2.1. Exercise of Warrant. Subject to the terms of this Agreement, the
Holder shall have the right, at any time up to and including 5:00 p.m., Denver
Time, on the Expiration Date, to purchase from the Company up to the number of
fully paid and nonassessable Shares to which the Holder may at the time be
entitled to purchase pursuant to this Agreement, upon surrender to the Company,
at its principal office or at such other location as the Company may advise the
holder in writing, of the Warrant Certificate evidencing the Warrants to be
exercised, together with the purchase form on the reverse thereof, or the
Warrant Conversion Exercise Form in the case of a warrant conversion pursuant to
Section 2.4 herein, duly filled in and signed, and upon payment to the Company
of the Aggregate Exercise Price for the number of Shares in respect of which
such Warrants are then exercised, but in no event for less than 100 Shares
(unless fewer than an aggregate of 100 shares are then purchasable under all
outstanding Warrants held by a Holder).
2.2. Payment of Exercise Price. Payment of the aggregate Exercise Price
shall be made in cash or by check, or any combination thereof.
2.3. Issuance of Shares. Upon such surrender of the Warrants and payment
of the aggregate Exercise Price as aforesaid, the Company shall issue and cause
to be delivered promptly to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate or certificates for the
number of full Shares so purchased upon the exercise of the Warrant, together
with cash, as provided in Section 12 hereof, in respect of any fractional Shares
otherwise issuable upon such surrender.
2.4 Conversion Rights. In addition to and without limiting the rights of
the Holder under the terms of this Warrant, the Holder shall have the right (the
"Conversion Right") to convert the Warrants issued pursuant to this Agreement or
any portion thereof into Shares as provided in this Section 2.4 at any time or
from time to time prior to its expiration.
(a) Upon exercise of the Conversion Right with respect to a
particular number of Warrants (the "Converted Warrants"), the Company shall
deliver to the Holder, without payment by the Holder of any Exercise Price or
any cash or other consideration, that number of Shares computed using the
following formula:
X = Y(A-B)
A
Where: X = the number of Shares and/or Warrants to be issued to the
------
Holder;
Y = the number of Shares and/or Warrants to be converted
under this Underwriter's Warrant;
A = the Current Market Price of one share of Common Stock
(calculated as described below); and
B = the Share Exercise Price.
(b) "Current Market Price." The Current Market Price shall be
determined as follows:
(i) if the security at issue is listed on a national securities
exchange or admitted to unlisted trading privileges on such an exchange or
quoted on either the National Market System or the Small Cap Market of the
automated quotation service operated by The Nasdaq Stock Market, Inc.
("Nasdaq"), the current value shall be the last reported sale price of
that security on such exchange or system on the day for which the Current
Market Price is to be determined or, if no such sale is made on such day,
the average of the highest closing bid and lowest asked price for such day
on such exchange or system; or
(ii) if the security at issue is not so listed or quoted or
admitted to unlisted trading privileges, the Current Market Value shall be
the average of the last reported highest bid and lowest asked prices
quoted on the Nasdaq Electronic Bulletin Board, or, if not so quoted, then
by the National Quotation Bureau, Inc. on the last business day prior to
the day for which the Current Market Price is to be determined; or
(iii) if the security at issue is not so listed or quoted or
admitted to unlisted trading privileges and bid and asked prices are not
reported, the current market value shall be determined in such reasonable
manner as may be prescribed from time to time by the Board of Directors of
the Company, subject to the objection and arbitration procedure as
described in Section (6) below.
No fractional Shares shall be issuable upon exercise of the Conversion Right,
and if the number of Shares to be issued in accordance with the foregoing
formula is other than a whole number, the Company shall pay to the Holder an
amount in cash equal to such fraction multiplied by the Current Market Price.
(c) The Conversion Right may be exercised by the Holder by the
surrender of the Certificate at the principal office of the Company or at the
office of the Company's stock transfer agent, if any, together with a written
statement specifying that the Holder thereby intends to exercise the Conversion
Right and indicating the number of Shares subject to the Warrant Certificate
which are being surrendered, on the reverse side of the Warrant Certificate, in
exercise of the Conversion Right. Such conversion shall be effective upon
receipt by the Company of the Warrant Certificate, or on such later date as is
specified therein (the "Conversion Date"), but not later than the Expiration
Date. Certificates for the Shares issuable upon exercise of the Conversion
Right, together with a check in payment of any fractional Share and, in the case
of a partial exercise a new Warrant Certificate evidencing the Shares remaining
subject to the Warrant, shall be issued as of the Conversion Date and shall be
delivered to the Holder within seven (7) days following the Conversion Date.
Section 3. Transferability and Form of Warrant
3.1. Limitation on Transfer. Any assignment or transfer of a Warrant shall
be made by the presentation and surrender of the Warrant Certificate to the
Company at its principal office or the office of its transfer agent, if any,
accompanied by a duly executed Assignment Form. Any transfer shall be subject to
the Company's approval, which will not be unreasonably withheld. Issuance will
be an expense of the Company, except for transfer taxes.
3.2. Exchange of Certificate. Any Warrant Certificate may be exchanged for
another certificate or certificates entitling the Warrant Holder to purchase a
like aggregate number of Shares as the certificate or certificates surrendered
then entitled such Warrant Holder to purchase. Any Warrant Holder desiring to
exchange a Warrant Certificate shall make such request in writing delivered to
the Company, and shall surrender, properly endorsed, with signatures guaranteed,
the certificate evidencing the Warrant to be so exchanged. Thereupon, the
Company shall execute and deliver to the person entitled thereto a new Warrant
Certificate as so requested.
3.3. Mutilated, Lost, Stolen, or Destroyed Certificate. If a Warrant
Certificate shall be mutilated, lost, stolen or destroyed, the Company shall, at
the request of the Warrant Holder, issue and deliver in exchange and
substitution for and upon cancellation of the mutilated certificate or
certificates, or in lieu of and substitution for the certificate or certificates
lost, stolen or destroyed, a new Warrant Certificate or certificates of like
tenor and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company of such loss, theft or destruction of such
Warrant Certificate and a bond of indemnity, if requested, also satisfactory to
the Company in form and amount, at the applicant's cost. Applicants for such
substitute Warrant certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
3.4. Form of Certificate. The text of the Warrant Certificate and of the
form of election to purchase Shares shall be substantially as set forth in
Exhibit A -D attached hereto. The number of Shares issuable upon exercise of the
Warrants is subject to adjustment upon the occurrence of certain events, all as
hereinafter provided. The Warrant Certificates shall be executed on behalf of
the Company by its President or by a Vice President and attested to by its
Secretary or an Assistant Secretary. A Warrant Certificate bearing the signature
of an individual who was at any time the proper officer of the Company shall
bind the Company, notwithstanding that such individual shall have ceased to hold
such officer prior to the delivery of such Warrant Certificate or did not hold
such office on the date of this Agreement.
The Warrant Certificates shall be dated as of the date of signature
thereof by the Company either upon initial issuance or upon division, exchange,
substitution or transfer.
Section 4. Adjustment of Number of Shares.
The number and kind of securities purchasable upon the exercise of the
Warrants and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
4.1. Adjustments. The number of Shares purchasable upon the exercise of
the Warrants shall be subject to adjustments as follows:
(a) In case the Company shall (i) pay a dividend in Common Stock or
make a distribution to its stockholders in Common Stock, (ii) subdivide
its outstanding Common Stock, (iii) combine its outstanding Common Stock
into a smaller number of shares of Common Stock, or (iv) issue by
classification of its Common Stock other securities of the Company, the
number of Shares purchasable upon exercise of the Warrants immediately
prior thereto shall be adjusted so that the Warrantholder shall be
entitled to receive the kind and number of Shares or other securities of
the Company which it would have owned or would have been entitled to
receive immediately after the happening of any of the events described
above, had the Warrants been exercised immediately prior to the happening
of such event or any record date with respect thereto. Any adjustment made
pursuant to this subsection 4.1.(a) shall become effective immediately
after the effective date of such event retroactive to the record date, if
any, for such event.
(b) In case the Company shall issue rights, options, warrants, or
convertible securities to all or substantially all holders of its Common
Stock, without any charge to such holders, entitling them to subscribe for
or purchase Common Stock at a price per share which is lower at the record
date mentioned below than the then Current Market Price, the number of
Shares thereafter purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Shares theretofore purchasable
upon exercise of the Warrants by a fraction, of which the numerator shall
be the number of shares of Common Stock outstanding immediately prior to
the issuance of such rights, options, warrants or convertible securities
plus the number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be the number
of shares of Common Stock outstanding immediately prior to the issuance of
such rights, options, warrants, or convertible securities plus the number
of shares which the aggregate offering price of the total number of shares
offered would purchase at such Current Market Price. Such adjustment shall
be made whenever such rights, options, warrants, or convertible securities
are issued, and shall become effective immediately and retroactively to
the record date for the determination of stockholders entitled to receive
such rights, options, warrants, or convertible securities.
(c) In case the Company shall distribute to all or substantially all
holders of its Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions out of earnings) or rights,
options, warrants, or convertible securities containing the right to
subscribe for or purchase Common Stock (excluding those referred to in
subsection 4.1(b) above), then in each case the number of Shares
thereafter purchasable upon the exercise of the Warrants shall be
determined by multiplying the number of Shares theretofore purchasable
upon exercise of the Warrants by a fraction, of which the numerator shall
be the then Current Market Price on the date of such distribution, and of
which the denominator shall be such Current Market Price on such date
minus the then fair value (determined as provided in subparagraph (e)
below of the portion of the assets or evidences of indebtedness so
distributed or of such subscription rights, options, warrants, or
convertible securities applicable to one share. Such adjustment shall be
made whenever any such distribution is made and shall become effective on
the date of distribution retroactive to the record date for the
determination of stockholders entitled to receive such distribution.
(d) No adjustment in the number of Shares purchasable pursuant to the
Warrants shall be required unless such adjustment would require an
increase or decrease of at least one percent in the number of Shares then
purchasable upon the exercise of the Warrants or, if the Warrants are not
then exercisable, the number of Shares purchasable upon the exercise of
the Warrants on the first date thereafter that the Warrants become
exercisable; provided, however, that any adjustments which by reason of
this subsection 4.1(d) are not required to be made immediately shall be
carried forward and taken into account in any subsequent adjustment.
(e) Whenever the number of Shares purchasable upon the exercise of
the Warrant is adjusted, as herein provided, the Exercise Price payable
upon exercise of the Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, of
which the numerator shall be the number of Warrant Shares purchasable upon
the exercise of the Warrant immediately prior to such adjustment, and of
which the denominator shall be the number of Warrant Shares so purchasable
immediately thereafter.
(f) Whenever the number of Shares purchasable upon exercise of the
Warrants is adjusted as herein provided, the Company shall cause to be
promptly mailed to the Warrantholder by first class mail, postage prepaid,
notice of such adjustment and a certificate of the chief financial officer
of the Company setting forth the number of Shares purchasable upon the
exercise of the Warrants after such adjustment, a brief statement of the
facts requiring such adjustment and the computation by which such
adjustment was made.
(g) For the purpose of this Section 4.1, the term "Common Stock"
shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassifications of such Common
Stock consisting solely of changes in par value, or from par value to no
par value, or from no par value to par value. In the event that at any
time, as a result of an adjustment made pursuant to this Section 4, the
Warrantholder shall become entitled to purchase any securities of the
Company other than Common Stock, (y) if the Warrant holder's right to
purchase is on any other basis than that available to all holders of the
Company's Common Stock, the Company shall obtain an opinion of an
independent investment banking firm valuing such other securities and (z)
thereafter the number of such other securities so purchasable upon
exercise of the Warrants shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Shares contained in this Section 4.
(h) Upon the expiration of any rights, options, warrants, or
conversion privileges, if such shall have not been exercised, the number
of Shares purchasable upon exercise of the Warrants, to the extent the
Warrants have not then been exercised, shall, upon such expiration, be
readjusted and shall thereafter be such as they would have been had they
been originally adjusted (or had the original adjustment not been
required, as the case may be) on the basis of (i) the fact that the only
shares of Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights, options,
warrants, or conversion privileges, and (ii) the fact that such shares of
Common Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the issuance, sale or grant of all
such rights, options, warrants, or conversion privileges whether or not
exercised; provided, however, that no such readjustment shall have the
effect of decreasing the number of Shares purchasable upon exercise of the
Warrants by an amount in excess of the amount of the adjustment initially
made in respect of the issuance, sale, or grant of such rights, options,
warrants, or conversion rights.
4.2. No Adjustment for Dividends. Except as provided in Section 4.1, no
adjustment in respect of any dividends or distributions out of earnings shall
be made during the term of the Warrants or upon the exercise of the Warrants.
4.3. No Adjustment in Certain Cases. No adjustments shall be made pursuant
to Section 4 hereof in connection with the issuance of the Common Stock upon
exercise of the Warrants. No adjustments shall be made pursuant to Section 4
hereof in connection with grant or exercise of presently authorized or
outstanding options to purchase, or the issuance of shares of Common Stock under
the Company's director or employee benefit plan.
4.4. Preservation of Purchase Rights upon Reclassification, Consolidation,
etc. In case of any consolidation of the Company with or merger of the Company
into another corporation, or in case of any sale or conveyance to another
corporation of the property, assets, or business of the Company as an entirety
or substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrantholder an
agreement that the Warrantholder shall have the right thereafter upon payment of
the Exercise Price in effect immediately prior to such action to purchase, upon
exercise of the Warrants, the kind and amount of shares and other securities and
property which it would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale, or conveyance had the Warrants
been exercised immediately prior to such action. In the event of a merger
described in Section 368(a)(2)(E) of the Internal Revenue Code of 1986, in which
the Company is the surviving corporation, the right to purchase Shares under the
Warrants shall terminate on the date of such merger and thereupon the Warrants
shall become null and void, but only if the controlling corporation shall agree
to substitute for the Warrants, its warrants which entitle the holder thereof to
purchase upon their exercise the kind and amount of shares and other securities
and property which it would have owned or been entitled to receive had the
Warrants been exercised immediately prior to such merger. Any such agreements
referred to in this Section 4.4 shall provide for adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
Section 4 hereof. The provisions of this Section 4.4 shall similarly apply to
successive consolidations, mergers, sales, or conveyances.
4.5. Par Value of Shares of Common Stock. Before taking any action which
would cause an adjustment effectively reducing the portion of the Exercise Price
allocable to each Share below the par value per share of the Common Stock
issuable upon exercise of the Warrants, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Common Stock
upon exercise of the Warrants.
4.6. Independent Public Accountants. The Company may retain a firm of
independent public accountants of recognized national standing (which may be any
such firm regularly employed by the Company) to make any computation required
under this Section 4, and a certificate signed by such firm shall be conclusive
evidence of the correctness of any computation made under this Section 4.
4.7. Statement on Warrant Certificates. Irrespective of any adjustments in
the number of securities issuable upon exercise of the Warrants, Warrant
certificates theretofore or thereafter issued may continue to express the same
number of securities as are stated in the similar Warrant certificates initially
issuable pursuant to this Agreement. However, the Company may, at any time in
its sole discretion (which shall be conclusive), make any change in the form of
Warrant certificate that it may deem appropriate and that does not affect the
substance thereof; and any Warrant certificate thereafter issued, whether upon
registration of transfer of, or in exchange or substitution for, an outstanding
Warrant certificate, may be in the form so changed.
4.8. Treasury Stock. For purposes of this Section 4, shares of Common
Stock owned or held at any relevant time by, or for the account of, the
Company, in its treasury or otherwise, shall not be deemed to be outstanding
for purposes of the calculations and adjustments described.
Section 5. Notice to Holders.
If, prior to the expiration of this Warrant either by its terms or by its
exercise in full, any of the following shall occur:
(a) the Company shall declare a dividend or authorize any other
distribution on its Common Stock; or
(b) the Company shall authorize the granting to the
shareholders of its Common Stock of rights to subscribe for or purchase any
securities or any other similar rights; or
(c) any reclassification, reorganization or similar change of
the Common Stock, or any consolidation or merger to which the Company is a
party, or the sale, lease, or exchange of any significant portion of the assets
of the Company; or
(d) the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) any purchase, retirement or redemption by the
Company of its Common Stock;
then, and in any such case, the Company shall deliver to the Holder or Holders
written notice thereof at least 10 days prior to the earliest applicable date
specified below with respect to which notice is to be given, which notice shall
state the following:
(x) the date on which a record is to be taken for the purpose
of such dividend, distribution or rights, or, if a record is not to be taken,
the date as of which the shareholders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined;
(y) the date on which such reclassification, reorganization,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up or
purchase, retirement or redemption is expected to become effective, and the
date, if any, as of which the Company's shareholders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, reorganization, consolidation,
merger, sale, transfer, dissolution, liquidation, winding up, purchase,
retirement or redemption; and
(z) if any matters referred to in the foregoing clauses (x) and
(y) are to be voted upon by shareholders of Common Stock, the date as of which
those shareholders to be entitled to vote are to be determined.
Section 6. Officers' Certificate.
Whenever the Exercise Price or the aggregate number of Warrant Securities
purchasable pursuant to this Warrant shall be adjusted as required by the
provisions of Section 4 above, the Company shall promptly file with its
Secretary or an Assistant Secretary at its principal office, and with its
transfer agent, if any, an officers' certificate executed by the Company's
President and Secretary or Assistant Secretary, describing the adjustment and
setting forth, in reasonable detail, the facts requiring such adjustment and the
basis for and calculation of such adjustment in accordance with the provisions
of this Warrant Agreement. Each such officers' certificate shall be made
available to all Warrant Holders for inspection at all reasonable times, and the
Company, after each such adjustment, shall promptly deliver a copy of the
officers' certificate relating to that adjustment to the Holder or Holders of
this Warrant. The officers' certificate described in this Section 6 shall be
deemed to be conclusive as to the correctness of the adjustment reflected
therein if, and only if, no Warrant Holder delivers written notice to the
Company of an objection to the adjustment within 30 days after the officers'
certificate is delivered to the Warrant Holder. The Company will make its books
and records available for inspection and copying during normal business hours by
the Warrant Holder so as to permit a determination as to the correctness of the
adjustment. If written notice of an objection is delivered by a Warrant Holder
to the Company and the parties cannot reconcile the dispute, the Holder and the
Company shall submit the dispute to arbitration pursuant to the provisions of
Section 19 below. Failure to prepare or provide the officers' certificate shall
not modify the parties' rights hereunder.
Section 7. Reservation of Warrant Securities.
The Company covenants and agrees that it shall at all times keep reserved
so long as the Warrants remain outstanding, out of its authorized and unissued
Common Stock, such number of shares of Common Stock as shall be subject to
purchase under the Warrants. Every transfer agent for the Common Stock and other
securities of the Company issuable upon the exercise of the Warrants will be
irrevocably authorized and directed at all times to reserve such number of
authorized shares and other securities as shall be requisite for such purpose.
The Company will keep a copy of this Agreement on file with every transfer agent
for the Common Stock and other securities of the Company issuable upon the
exercise of the Warrants. The Company will supply every such transfer agent with
duly executed stock and other certificates, as appropriate, for such purpose and
will provide or otherwise make available any cash which may be payable as
provided in Section 12 hereof.
Section 8. Restrictions on Transfer; Registration Rights.
8.1. Restrictions on Transfer. The Warrantholder agrees that prior to
making any disposition of the Warrants or the Shares, other than to officers of
BMCG, the Warrant Holder shall give written notice to the Company describing
briefly the manner in which any such proposed disposition is to be made; and no
such disposition shall be made if the Company has notified the Warrantholder
that in the opinion of counsel reasonably satisfactory to the Warrantholder a
registration statement or other notification or post-effective amendment thereto
(hereinafter collectively a "Registration Statement") under the Act is required
with respect to such disposition and no such Registration Statement has been
filed by the Company with, and declared effective, if necessary, by, the
Commission.
8.2. Piggy-Back Registration Right. If at any time prior to the Expiration
Date the Company files a Registration Statement with the Commission pursuant to
the Act, or pursuant to any other act passed after the date of this Agreement,
which filing provides for the sale of securities by the Company to the public,
or files a Regulation A offering statement under the Act, the Company shall
offer to the Warrant Holder and the holders of any Warrant Securities the
opportunity to register or qualify the Warrant Securities at the Company's sole
expense, regardless of whether the Warrant Holder or the holders of Warrant
Securities or both may have previously availed themselves of any of the
registration rights described in this Section 8; provided, however, that in the
case of a Regulation A offering, the opportunity to qualify shall be limited to
the amount of the available exemption after taking into account the securities
that the Company wishes to qualify. Further, at the request of a bona-fide
underwriter, the rights under this paragraph may be temporarily suspended for
purposes of completing a specific offering. Notwithstanding anything to the
contrary, this Section 8.2 shall not be applicable to a Registration Statement
registering securities issued pursuant to an employee benefit plan or as to a
transaction subject to Rule 145 promulgated under the Act or which a form S-4 or
S-8 registration statement could be used.
The Company shall deliver written notice to the Warrant Holder and to any
holders of the Warrant Securities of its intention to file a registration
statement or Regulation A offering statement under the Act at least 10 days
prior to the filing of such Registration Statement or offering statement, and
the Warrant Holder and holders of Warrant Securities shall have 20 days
thereafter to request in writing that the Company register or qualify the
Warrant Securities in accordance with this Section 8.2. Upon the delivery of
such a written request within the specified time, the Company shall be obligated
to include in its contemplated registration statement or offering statement all
information necessary or advisable to register or qualify the Warrant
Securities. for a public offering, if the Company does file the contemplated
Registration Statement or offering statement; provided, however, that neither
the delivery of the notice by the Company nor the delivery of a request by a
Holder or by a holder of Warrant Securities shall in any way obligate the
Company to file a Registration Statement or offering statement. Furthermore,
notwithstanding the filing of a registration statement or offering statement,
the Company may, at any time prior to the effective date thereof, determine not
to offer the securities to which the registration statement or offering
statement relates, other than the Warrant, and Warrant Securities.
Notwithstanding the foregoing, if, as a qualification of any offering in any
state or jurisdiction in which the Company (by vote of its Board of Directors)
or any underwriter determines in good faith that it wishes to offer securities
registered in the offering, it is required that offering expenses be allocated
in a manner different from that provided above, then the offering expenses shall
be allocated in whatever manner is most nearly in compliance with the provisions
set out above.
The Company shall comply with the requirements of this Section 8.2 and the
related requirements of Section 8.6 at its own expense. That expense shall
include, but not be limited to, legal, accounting, consulting, printing, federal
and state filing fees, NASD fees, out-of-pocket expenses incurred by counsel,
accountants and consultants retained by the Company, and miscellaneous expenses
directly related to the registration statement or offering statement and the
offering. However, this expense shall not include the portion of any
underwriting commissions, transfer taxes and the underwriter's accountable and
non-accountable expense allowances attributable to the offer and sale of the
Warrant and Warrant Securities. all of which expenses shall be borne by the
Warrant Holder and the holders of the Warrant Securities registered or
qualified.
8.3. Inclusion of Information. In the event that the Company registers or
qualifies the Warrant Securities pursuant to Section 8.2 above, the Company
shall include in the Registration Statement or qualification, and the prospectus
included therein, all information and materials necessary or advisable to comply
with the applicable statutes and regulations so as to permit the public sale of
the Warrant Securities. As used in Section 8.2, reference to the Company's
securities shall include, but not be limited to, any class or type of the
Company's securities or the securities of any of the Company's subsidiaries or
affiliates.
8.5. Condition of Company's Obligations. As to each registration
statement or offering statement, the Company's obligations contained in this
Section 8 shall be conditioned upon a timely receipt by the Company in
writing of the following:
(a) Information as to the terms of the contemplated public offering
furnished by and on behalf of each Holder or holder intending to make a
public distribution of the Warrant Securities and
(b) Such other information as the Company may reasonably require from
such Holders or holders, or any underwriter for any of them, for inclusion
in the registration statement or offering statement.
8.6.Additional Requirements. In each instance in which the Company shall
take any action to register or qualify the Warrant Securities or the Warrant
Securities, if any, pursuant to this Section 8, the Company shall do the
following:
(a) supply to BMCG, as the representative of the Holders of the
Warrant and the holders of Warrant Securities whose Warrant Securities are
being registered or qualified, two (2) manually signed copies of each
Registration Statement or offering statement, and all amendments thereto,
and a reasonable number of copies of the preliminary, final or other
prospectus or offering circular, all prepared in conformity with the
requirements of the Act and the rules and regulations promulgated
thereunder, and such other documents as BMCG shall reasonably request;
(b) cooperate with respect to (i) all necessary or advisable actions
relating to the preparation and the filing of any registration statements
or offering statements, and all amendments thereto, arising from the
provisions of this Section 8, (ii) all reasonable efforts to establish an
exemption from the provisions of the Act or any other federal or state
securities statutes, (iii) all necessary or advisable actions to register
or qualify the public offering at issue pursuant to federal securities
statutes and the state "blue sky" securities statutes of each jurisdiction
that the Warrant Holders or holders of Warrant Securities shall reasonably
request, and (iv) all other necessary or advisable actions to enable the
holders of the Warrant Securities to complete the contemplated disposition
of their securities in each reasonably requested jurisdiction; and
(c) keep all registration statements or offering statements to which
this Section 8 applies, and all amendments thereto, effective under the
Act until the latter to occur of (a) all Registered Warrants have been
exercised or have expired; (b) one year after the last Registered Warrant
has been exercised; or (c) all Registered Warrant Securities have been
sold under the registration statement.
8.7. Reciprocal Indemnification. In each instance in which pursuant to
this Section 8 the Company shall take any action to register or qualify the
Warrant Securities or the Warrant Securities underlying the unexercised portion
of this Warrant, prior to the effective date of any registration statement or
offering statement, the Company and each Holder or holder of Warrants or Warrant
Securities being registered or qualified shall enter into reciprocal
indemnification agreements, in the form customarily used by reputable investment
bankers with respect to public offerings of securities, containing substantially
the same terms as described in Section 10. These indemnification agreements also
shall contain an agreement by the Holder or shareholder at issue to indemnify
and hold harmless the Company, its officers and directors from and against any
and all losses, claims, damages and liabilities, including, but not limited to,
all expenses reasonably incurred in investigating, preparing, defending or
settling any claim, directly resulting from any untrue statements of material
facts, or omissions to state a material fact necessary to make a statement not
misleading, contained in a registration statement or offering statement to which
this Section 8 applies, if, and only if, the untrue statement or omission
directly resulted from information provided in writing to the Company by the
indemnifying Holder or shareholder expressly for use in the registration
statement or offering statement at issue.
8.8. BMCG as Representative. For purposes of subsection 8.7(a) above, by
the receipt of the Warrants or any Warrant Securities, all Warrant Holders and
all holders of Warrant Securities acknowledge and agree that BMCG is and shall
be their representative.
8.9. Survival. The Company's obligations described in this Section 8
shall continue in full force and effect regardless of the exercise,
surrender, cancellation or expiration of the Warrants.
Section 9. Payment of Taxes.
The Company will pay all documentary stamp taxes, if any, attributable to
the initial issuance of the Warrants or the securities comprising the Shares;
provided, however, the Company shall not be required to pay any tax which may be
payable in respect of any transfer of the Warrants or the securities comprising
the Shares.
Section 10.Indemnification and Contribution
10.1. Indemnification By Company. In the event of the filing of any
Registration Statement with respect to the Warrant Shares pursuant to Section 8
hereof, the Company agrees to indemnify and hold harmless the Warrantholder or
any holder of Warrant Shares and each person, if any, who controls the
Warrantholder or any holder of Warrant Shares within the meaning of the Act,
against any and all loss, claim, damage or liability, joint or several (which
shall, for all purposes of this Agreement include, but not be limited to, all
reasonable costs of defense and investigation and all reasonable attorneys'
fees), to which such Warrantholder or any holder of Warrant Shares may become
subject, under the Act or otherwise, insofar as such loss, claim, damage, or
liability (or action with respect thereto) arises out of or is based upon (a)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any Preliminary Prospectus, the Effective
Prospectus, or the Final Prospectus or any amendment or supplement thereto; or
(b) the omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus, the Effective Prospectus or the Final Prospectus or any
amendment or supplement thereto a material fact required to be stated therein or
necessary to make the statements therein not misleading; except that the Company
shall not be liable in any such case to the extent, but only to the extent, that
any such loss, claim, damage, or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by such Warrantholder or the holder of such Warrant Shares
specifically for use in the preparation of the Registration Statement, any
Preliminary Prospectus, the Effective Prospectus and the Final Prospectus or any
amendment or supplement thereto. This indemnity will be in addition to any
liability which the Company may otherwise have.
10.2. Indemnification By Warrantholders. The Warrantholders and the holders
of Warrant Shares agree that they, severally, but not jointly, shall indemnify
and hold harmless the Company, each other person referred to in subparts (1),
(2) and (3) of Section 11(a) of the Act in respect of the Registration Statement
and each person, if any, who controls the Company within the meaning of the Act,
against any and all loss, claim, damage or liability, joint or several (which
shall, for all purposes of this Agreement include, but not be limited to, all
costs of defense and investigation and all attorneys' fees), to which the
Company may become subject under the Act or otherwise, insofar as such loss,
claim, damage, liability (or action in respect thereto) arises out of or are
based upon (a) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Effective Prospectus or the Final Prospectus or any amendment or supplement
thereto; or (b) the omission or alleged omission to state in the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus or the Final
Prospectus or any amendment or supplement thereto a material fact required to be
stated therein or necessary to make the statements therein not misleading;
except that such indemnification shall be available in each such case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon information
and in conformity with written information furnished to the Company by the
Warrantholder or the holder of Warrant Shares specifically for use in the
preparation thereof. This indemnity will be in addition to any liability which
such Warrantholder or holder of Warrant Shares may otherwise have.
10.3. Right to Provide Defense. Promptly after receipt by an indemnified
party under Section 10.1 or 10.2 above of written notice of the commencement of
any action, the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such section, notify the indemnifying
party in writing of the claim or the commencement of that action; the failure to
notify the indemnifying party shall not relieve it of any liability which it may
have to an indemnified party, except to the extent that the indemnifying party
did not otherwise have knowledge of the commencement of the action and the
indemnifying party's ability to defend against the action was prejudiced by such
failure. Such failure shall not relieve the indemnifying party from any other
liability which it may have to the indemnified party. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under such section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; except if independent
counsel provides a written opinion that actual conflicts exist, BMCG shall have
the right to employ counsel to represent it and the other Warrant Holders or
holders of Shares who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by such persons against the Company. In
that event the fees and expenses of such separate counsel shall be paid by the
Company.
10.4. Contribution. If the indemnification provided for in Sections 10.1
and 10.2 of this Agreement is unavailable or insufficient to hold harmless an
indemnified party, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages, or liabilities referred to in Sections 10.1 or 10.2 above (a) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Warrantholders on the other; or (b) if the
allocation provided by clause (a) above is not permitted by applicable law, in
such proportion as is appropriate to reflect the relative benefits referred to
in clause (a) above but also the relative fault of the Company on the one hand
and the Warrantholders on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Warrantholders shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
un-itemized expenses received by the Underwriters, in each case as set forth in
the table on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether the untrue statement of
a material fact or the omission to state a material fact relates to information
supplied by the Company or the Underwriter and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
untrue statement or omission. For purposes of this Section 10.4, the term
"damages" shall include any counsel fees or other expenses reasonably incurred
by the Company or the Underwriters in connection with investigating or defending
any action or claim which is the subject of the contribution provisions of this
Section 10.4. No person adjudged guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it shall promptly give
written notice of such service to the party or parties from whom contribution
may be sought, but the omission so to notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought from
any obligation it may have hereunder or otherwise (except as specifically
provided in Section 10.4 hereof).
Section 11.Transfer to Comply With the Securities Act of 1933
This Warrant, the Warrant Securities, and all other securities issued or
issuable upon exercise of this Warrant, may not be offered, sold or transferred,
in whole or in part, except in compliance with the Act, and except in compliance
with all applicable state securities laws. The Company may cause substantially
the following legends, or their equivalents, to be set forth on each certificate
representing the Warrant Securities, or any other security issued or issuable
upon exercise of this Warrant, not theretofore distributed to the public or sold
to underwriters, as defined by the Act, for distribution to the public pursuant
to Section 8 above:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS
AND MAY NOT BE SOLD, EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY
MANNER IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS."
(b) Any legend required by applicable state securities laws.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legends (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the "Act", or the securities represented thereby) shall also bear the above
legends unless, in the opinion of the Company's counsel, the securities
represented thereby need no longer be subject to such restrictions.
Section 12.Fractional Shares
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of all or any part of this Warrant. With respect to any
fraction of a share of any security called for upon any exercise of this
Warrant, the Company shall pay to the Holder an amount in money equal to that
fraction multiplied by the Current Market Price of that share.
Section 13. No Rights as Stockholder; Notices to Warrantholder.
Nothing contained in this Agreement or in the Warrants shall be
construed as conferring upon the Warrantholder or its transferees any
rights as a stockholder of the Company, including the right to vote,
receive dividends, consent or receive notices as a stockholder in respect
to any meeting of stockholders for the election of directors of the
Company or any other matter. The Company covenants, however, that for so
long as this Warrant is at least partially unexercised, it will furnish
any Holder of this Warrant with copies of all reports and communications
furnished to the shareholders of the Company.
Section 14. Warrant Securities to be Fully Paid
The Company covenants that all Warrant Securities that may be issued and
delivered to a Holder of this Warrant upon the exercise of this Warrant and
payment of the Exercise Price will be, upon such delivery, validly and duly
issued, fully paid and nonassessable.
Section 15. Notices
Any notice pursuant to this Agreement by the Company or by a Warrantholder
or a holder of Shares shall be in writing and shall be deemed to have been duly
given if delivered or mailed by certified mail, return receipt requested:
(i) If to a Warrantholder or a holder of Shares, addressed to Bathgate
McColley Capital Group, LLC, 5350 S. Roslyn Street, Suite 380, Englewood,
Colorado 80111, Attention: Corporate Finance Department; or
(ii) If to the Company addressed to it at 12061 Tejon St. Westminster,
CO 80234, Attn: Douglass Simpson. Each party may from time to time change
the address to which notices to it are to be delivered or mailed hereunder by
notice in accordance herewith to the other party.
Section 16. Applicable Law
This Warrant shall be governed by and construed in accordance with the laws of
the State of Colorado, and courts located in Colorado shall have exclusive
jurisdiction and venue over all disputes arising hereunder.
Section 17. Arbitration.
The Company and the Holder, and by receipt of this Warrant or any Warrant
Securities, all subsequent Holders or holders of Warrant Securities, agree to
submit all controversies, claims, disputes and matters of difference with
respect to this Warrant, including, without limitation, the application of this
Section 19 to arbitration in Denver, Colorado, according to the rules and
practices of the American Arbitration Association from time to time in force;
provided, however, that if such rules and practices conflict with the applicable
procedures of Colorado courts of general jurisdiction or any other provisions of
Colorado law then in force, those Colorado rules and provisions shall govern.
This agreement to arbitrate shall be specifically enforceable. Arbitration may
proceed in the absence of any party if notice of the proceeding has been given
to that party. The parties agree to abide by all awards rendered in any such
proceeding. These awards shall be final and binding on all parties to the extent
and in the manner provided by the rules of civil procedure enacted in Colorado.
All awards may be filed, as a basis of judgment and of the issuance of execution
for its collection, with the clerk of one or more courts, state or federal,
having jurisdiction over either the party against whom that award is rendered or
its property. No party shall be considered in default hereunder during the
pendency of arbitration proceedings relating to that default.
Section 18. Miscellaneous Provisions
(a) Subject to the terms and conditions contained herein, this Warrant
shall be binding on the Company and its successors and shall inure to the
benefit of the original Holder, its successors and assigns and all holders of
Warrant Securities and the exercise of this Warrant in full shall not terminate
the provisions of this Warrant as it relates to holders of Warrant Securities.
(b) If the Company fails to perform any of its obligations hereunder, it
shall be liable to the Holder for all damages, costs and expenses resulting from
the failure, including, but not limited to, all reasonable attorney's fees and
disbursements.
(c) This Warrant cannot be changed or terminated or any performance or
condition waived in whole or in part except by an agreement in writing signed by
the party against whom enforcement of the change, termination or waiver is
sought; provided, however, that any provisions hereof may be amended, waived,
discharged or terminated upon the written consent of the Company and BMCG.
(d) If any provision of this Warrant shall be held to be invalid, illegal
or unenforceable, such provision shall be severed, enforced to the extent
possible, or modified in such a way as to make it enforceable, and the
invalidity, illegality or unenforceability shall not affect the remainder of
this Warrant.
(e) The Company agrees to execute such further agreements, conveyances,
certificates and other documents as may be reasonably requested by the Holder to
effectuate the intent and provisions of this Warrant.
(f) Paragraph headings used in this Warrant are for convenience only and
shall not be taken or construed to define or limit any of the terms or
provisions of this Warrant. Unless otherwise provided, or unless the context
shall otherwise require, the use of the singular shall include the plural and
the use of any gender shall include all genders.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above written.
Corgenix Medical Corporation
By: s/ Douglass T. Simpson
----------------------------
Douglass T. Simpson
Bathgate McColley Capital Group, LLC
By: s/ Eugene C. McColley
--------------------------
Eugene C. McColley, Manager
EXHIBIT A
The securities represented by this certificate have not been registered under
the Securities Act of 1933 (the "Act"), and are "restricted securities" as that
term is defined in Rule 144 under the Act. The securities may not be offered for
sale, sold, or otherwise transferred except pursuant to an effective
registration under the Act, or pursuant to an exemption from registration under
the Act, the availability of which is to be established to the satisfaction of
the Company.
Warrant Certificate No. W-A
Corgenix Medical Corporation
WARRANT TO PURCHASE
225,000 SHARES OF COMMON STOCK
INCORPORATED UNDER THE LAWS
OF THE STATE OF Colorado
This certifies that, for value received, Bathgate McColley Capital Group,
LLC, the registered holder hereof or assigns (the "Warrant Holder"), is entitled
to purchase from Corgenix Medical Corporation (the "Company"), at any time
during the period commencing at 9:00 a.m., Colorado time, on April 10, 2002, and
expiring at 5:00 p.m., Colorado time, on April 10, 2004, at the purchase price
per Share of $0.25. (the "Exercise Price"), the number of shares of Common Stock
of the Company set forth above (the "Shares"). The number of shares of Common
Stock of the Company purchasable upon exercise of this warrant shall be subject
to adjustment from time to time as set forth in the Warrant Agreement dated
April 10, 2001 by and between the Company and Bathgate McColley Capital Group,
LLC. (the "Warrant Agreement").
This warrant may be exercised in whole or in part by presentation of this
Warrant Certificate with the Purchase Form attached hereto duly executed and
simultaneous payment of the Warrant Price at the principal office of the
Company. Payment of such price shall be made at the option of the Warrantholder
in cash or by check or by Cashless Exercise subject to the provisions of Section
2.4 of the Warrant Agreement (as that term is defined therein).
This Warrant is issued under and in accordance with Warrant Agreement and
is subject to the terms and provisions contained in the Warrant Agreement, to
all of which the Warrant Holder by acceptance hereof consents.
Upon any partial exercise of this Warrant there shall be signed and issued
to the Warrant Holder a new Warrant Certificate in respect of the Shares as to
which shall not have been exercised. This Warrant may be exchanged at the office
of the Company by surrender of this Warrant Certificate properly endorsed for
one or more new Warrants of the same aggregate number of Shares as here
evidenced by the Warrant or Warrants exchanged. No fractional shares of Common
Stock will be issued upon the exercise of rights to purchase hereunder, but the
Company shall pay the cash value of any fraction upon the exercise of one or
more Warrants. The Warrants are transferable at the office of the Company in the
manner and subject to the limitations set forth in the Warrant Agreement.
This Warrant Certificate does not entitle any Warrantholder to any of the
rights of a stockholder of the Company.
Corgenix Medical Corporation
By: s/ Douglass T. Simpson
Douglass T. Simpson
Dated: 4/19/2001
[Seal]
Attest: s/ Taryn G. Reynolds
Taryn G. Reynolds, Secretary
PURCHASE FORM
Dated ,
------------------------ -----
The undersigned hereby irrevocably elects to exercise the Warrant
represented by this Warrant Certificate to the extent of purchasing Shares of
Corgenix Medical Corporation and hereby tenders payment of the exercise price
thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
----------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------
................................................................................
ASSIGNMENT FORM
FOR VALUE RECEIVED, , hereby sells, assigns and
----------------
transfers unto
Name
----------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------
the right to purchase Shares of Corgenix Medical Corporation represented by
this Warrant Certificate to the extent of Shares as to which such right
-----
is exercisable and does hereby irrevocably constitute and appoint attorney, to
transfer the same on the books of the Company with full power
of substitution in the premises.
Signature Dated
-------------------- -------------------- -----
Notice: the signature on this assignment must correspond with the name as it
appears upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
...........................................................
WARRANT CONVERSION EXERCISE FORM
TO: Corgenix Medical Corporation
Pursuant to Section 2.4 of the Warrant Agreement, the Holder hereby
irrevocably elects to convert Warrants with respect to Shares of the Company
into Shares of the Company. A conversion calculation is attached hereto as
Exhibit B-1.
The undersigned requests that certificates for such Shares be issued as
follows:
Name:
-----------------------------------------
Address:
-----------------------------------------
Deliver to:
-----------------------------------------
and that a new Warrant Certificate for the balance remaining of the Warrants, if
any, subject to the Warrant be registered in the name of, and delivered to, the
undersigned at the address stated above.
Signature Dated
-------------------- -------------------- -----
Exhibit B-1
CALCULATION OF WARRANT CONVERSION
Converted Securities (Y) =
---------------
Current Market Price (A) = $
--------------
Exercise Price (B) = $
--------------
Converted Shares (X) = Y(A-B)/A
Fractional Converted Shares = (1)
---------------
Where: X = the number of Shares and/or Warrants to be issued to the
------
Holder;
Y = the number of Shares and/or Warrants to be converted
under this Warrant;
A = the Current Market Price of one share of Common Stock
(calculated as described below); and
B = the Share Exercise Price.
(1) Corgenix Medical Corporation to pay for fractional Shares in cash @ $__
per Share.
EXHIBIT B
The securities represented by this certificate have not been registered under
the Securities Act of 1933 (the "Act"), and are "restricted securities" as that
term is defined in Rule 144 under the Act. The securities may not be offered for
sale, sold, or otherwise transferred except pursuant to an effective
registration under the Act, or pursuant to an exemption from registration under
the Act, the availability of which is to be established to the satisfaction of
the Company.
Warrant Certificate No. W-B
Corgenix Medical Corporation
WARRANT TO PURCHASE
225,000 SHARES OF COMMON STOCK
INCORPORATED UNDER THE LAWS
OF THE STATE OF Colorado
This certifies that, for value received, Bathgate McColley Capital Group,
LLC, the registered holder hereof or assigns (the "Warrant Holder"), is entitled
to purchase from Corgenix Medical Corporation (the "Company"), at any time
during the period commencing at 9:00 a.m., Colorado time, on September 30, 2002,
and expiring at 5:00 p.m., Colorado time, on September 30, 2004, at the purchase
price per Share of $0.25. (the "Exercise Price"), the number of shares of Common
Stock of the Company set forth above (the "Shares"). The warrant will vest if
COGX common stock bid price as quoted on the Electronic Bulletin Board or
alternatively by a nationally recognized exchange, or NASDAQ, exceeds 30 cents
per share by September 30, 2001. For purposes of determining when the Warrants
are earned, the stock will have been quoted by the Electronic Bulletin Board or
alternatively by a nationally recognized exchange, or NASDAQ, where the COGX
common stock bid price equals or exceeds the price specified for twenty
consecutive trading days. For purposes of this paragraph, should the specified
price level be reached prior to the termination date, but has not traded for the
specified period required under the earn out, the termination date will extend
until five consecutive trading days from the initial date that the stock
exceeded the earn out price. If on each day of such twenty-day period the stock
does not close at or in excess of the bid price the specific warrant will
terminate. The number of shares of Common Stock of the Company purchasable upon
exercise of this warrant shall be subject to adjustment from time to time as set
forth in the Warrant Agreement dated April 10, 2001 by and between the Company
and Bathgate McColley Capital Group, LLC. (the "Warrant Agreement").
This warrant may be exercised in whole or in part by presentation of this
Warrant Certificate with the Purchase Form attached hereto duly executed and
simultaneous payment of the Warrant Price at the principal office of the
Company. Payment of such price shall be made at the option of the Warrant holder
in cash or by check or by Cashless Exercise subject to the provisions of Section
2.4 of the Warrant Agreement (as that term is defined therein).
This Warrant is issued under and in accordance with Warrant Agreement and
is subject to the terms and provisions contained in the Warrant Agreement, to
all of which the Warrant Holder by acceptance hereof consents.
Upon any partial exercise of this Warrant there shall be signed and issued
to the Warrant Holder a new Warrant Certificate in respect of the Shares as to
which shall not have been exercised. This Warrant may be exchanged at the office
of the Company by surrender of this Warrant Certificate properly endorsed for
one or more new Warrants of the same aggregate number of Shares as here
evidenced by the Warrant or Warrants exchanged. No fractional shares of Common
Stock will be issued upon the exercise of rights to purchase hereunder, but the
Company shall pay the cash value of any fraction upon the exercise of one or
more Warrants. The Warrants are transferable at the office of the Company in the
manner and subject to the limitations set forth in the Warrant Agreement.
This Warrant Certificate does not entitle any Warrant holder to any of the
rights of a stockholder of the Company.
Corgenix Medical Corporation
By: s/ Douglass T. Simpson
Douglass T. Simpson
Dated: 4/19/2001
[Seal]
Attest: s/ Taryn G. Reynolds
Taryn G. Reynolds, Secretary
PURCHASE FORM
Dated ,
------------------------ -----
The undersigned hereby irrevocably elects to exercise the Warrant
represented by this Warrant Certificate to the extent of purchasing Shares of
Corgenix Medical Corporation and hereby tenders payment of the exercise price
thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
----------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------
................................................................................
ASSIGNMENT FORM
FOR VALUE RECEIVED, , hereby sells, assigns and
----------------
transfers unto
Name
----------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------
the right to purchase Shares of Corgenix Medical Corporation represented by
this Warrant Certificate to the extent of Shares as to which such right
-----
is exercisable and does hereby irrevocably constitute and appoint attorney, to
transfer the same on the books of the Company with full power
of substitution in the premises.
Signature Dated
-------------------- -------------------- -----
Notice: the signature on this assignment must correspond with the name as it
appears upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
................................................................................
TO: Corgenix Medical Corporation
Pursuant to Section 2.4 of the Warrant Agreement, the Holder hereby
irrevocably elects to convert Warrants with respect to Shares of the Company
into Shares of the Company. A conversion calculation is attached hereto as
Exhibit B-1.
The undersigned requests that certificates for such Shares be issued as
follows:
Name:
-----------------------------------------
Address:
-----------------------------------------
Deliver to:
-----------------------------------------
and that a new Warrant Certificate for the balance remaining of the Warrants, if
any, subject to the Warrant be registered in the name of, and delivered to, the
undersigned at the address stated above.
Signature Dated
-------------------- -------------------- -----
Exhibit B-1
CALCULATION OF WARRANT CONVERSION
Converted Securities (Y) =
---------------
Current Market Price (A) = $
--------------
Exercise Price (B) = $
--------------
Converted Shares (X) = Y(A-B)/A
Fractional Converted Shares = (1)
---------------
Where: X = the number of Shares and/or Warrants to be issued to the
------
Holder;
Y = the number of Shares and/or Warrants to be converted
under this Warrant;
A = the Current Market Price of one share of Common Stock
(calculated as described below); and
B = the Share Exercise Price.
(1) Corgenix Medical Corporation to pay for fractional Shares in cash @ $__
per Share.
EXHIBIT C
The securities represented by this certificate have not been registered under
the Securities Act of 1933 (the "Act"), and are "restricted securities" as that
term is defined in Rule 144 under the Act. The securities may not be offered for
sale, sold, or otherwise transferred except pursuant to an effective
registration under the Act, or pursuant to an exemption from registration under
the Act, the availability of which is to be established to the satisfaction of
the Company.
Warrant Certificate No. W-C
Corgenix Medical Corporation
WARRANT TO PURCHASE
225,000 SHARES OF COMMON STOCK
INCORPORATED UNDER THE LAWS
OF THE STATE OF Colorado
This certifies that, for value received, Bathgate McColley Capital Group,
LLC, the registered holder hereof or assigns (the "Warrant Holder"), is entitled
to purchase from Corgenix Medical Corporation (the "Company"), at any time
during the period commencing at 9:00 a.m., Colorado time, on February 28, 2003,
and expiring at 5:00 p.m., Colorado time, on February 28, 2005, at the purchase
price per Share of $0.25. (the "Exercise Price"), the number of shares of Common
Stock of the Company set forth above (the "Shares"). The warrant will vest if
COGX common stock bid price as quoted on the Electronic Bulletin Board or
alternatively by a nationally recognized exchange, or NASDAQ, exceeds 40 cents
per share by February 28, 2002. For purposes of determining when the Warrants
are earned, the stock will have been quoted by the Electronic Bulletin Board or
alternatively by a nationally recognized exchange, or NASDAQ, where the COGX
common stock bid price equals or exceeds the price specified for twenty
consecutive trading days. For purposes of this paragraph, should the specified
price level be reached prior to the termination date, but has not traded for the
specified period required under the earn out, the termination date will extend
until five consecutive trading days from the initial date that the stock
exceeded the earn out price. If on each day of such twenty-day period the stock
does not close at or in excess of the bid price the specific warrant will
terminate.The number of shares of Common Stock of the Company purchasable upon
exercise of this warrant shall be subject to adjustment from time to time as set
forth in the Warrant Agreement dated April 10, 2001 by and between the Company
and Bathgate McColley Capital Group, LLC. (the "Warrant Agreement").
This warrant may be exercised in whole or in part by presentation of this
Warrant Certificate with the Purchase Form attached hereto duly executed and
simultaneous payment of the Warrant Price at the principal office of the
Company. Payment of such price shall be made at the option of the Warrant holder
in cash or by check or by Cashless Exercise subject to the provisions of Section
2.4 of the Warrant Agreement (as that term is defined therein).
This Warrant is issued under and in accordance with Warrant Agreement and
is subject to the terms and provisions contained in the Warrant Agreement, to
all of which the Warrant Holder by acceptance hereof consents.
Upon any partial exercise of this Warrant there shall be signed and issued
to the Warrant Holder a new Warrant Certificate in respect of the Shares as to
which shall not have been exercised. This Warrant may be exchanged at the office
of the Company by surrender of this Warrant Certificate properly endorsed for
one or more new Warrants of the same aggregate number of Shares as here
evidenced by the Warrant or Warrants exchanged. No fractional shares of Common
Stock will be issued upon the exercise of rights to purchase hereunder, but the
Company shall pay the cash value of any fraction upon the exercise of one or
more Warrants. The Warrants are transferable at the office of the Company in the
manner and subject to the limitations set forth in the Warrant Agreement.
This Warrant Certificate does not entitle any Warrant holder to any of the
rights of a stockholder of the Company.
Corgenix Medical Corporation
By: s/ Douglass T. Simpson
Douglass T. Simpson
Dated: 4/19/2001
[Seal]
Attest: s/ Taryn G. Reynolds
Taryn G. Reynolds, Secretary
PURCHASE FORM
Dated ,
------------------------ -----
The undersigned hereby irrevocably elects to exercise the Warrant
represented by this Warrant Certificate to the extent of purchasing Shares of
Corgenix Medical Corporation and hereby tenders payment of the exercise price
thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
----------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------
................................................................................
ASSIGNMENT FORM
FOR VALUE RECEIVED, , hereby sells, assigns and
----------------
transfers unto
Name
----------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------
the right to purchase Shares of Corgenix Medical Corporation represented by
this Warrant Certificate to the extent of Shares as to which such right
-----
is exercisable and does hereby irrevocably constitute and appoint
------------
attorney to transfer same on the books of the Company with full power of
substitution in the premises.
Signature Dated
-------------------- --------------------
Notice: the signature on this assignment must correspond with the name as it
appears upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
................................................................................
WARRANT CONVERSION EXERCISE FORM
TO: Corgenix Medical Corporation
Pursuant to Section 2.4 of the Warrant Agreement, the Holder hereby
irrevocably elects to convert Warrants with respect to Shares of the Company
into Shares of the Company. A conversion calculation is attached hereto as
Exhibit B-1.
The undersigned requests that certificates for such Shares be issued as
follows:
Name:
-----------------------------------------
Address:
-----------------------------------------
Deliver to:
-----------------------------------------
and that a new Warrant Certificate for the balance remaining of the Warrants, if
any, subject to the Warrant be registered in the name of, and delivered to, the
undersigned at the address stated above.
Signature Dated
-------------------- -------------------- -----
Exhibit B-1
CALCULATION OF WARRANT CONVERSION
Converted Securities (Y) =
---------------
Current Market Price (A) = $
--------------
Exercise Price (B) = $
--------------
Converted Shares (X) = Y(A-B)/A
Fractional Converted Shares = (1)
---------------
Where: X = the number of Shares and/or Warrants to be issued to the
------
Holder;
Y = the number of Shares and/or Warrants to be converted
under this Warrant;
A = the Current Market Price of one share of Common Stock
(calculated as described below); and
B = the Share Exercise Price.
(1) Corgenix Medical Corporation to pay for fractional Shares in cash @ $__
per Share.
EXHIBIT D
The securities represented by this certificate have not been registered under
the Securities Act of 1933 (the "Act"), and are "restricted securities" as that
term is defined in Rule 144 under the Act. The securities may not be offered for
sale, sold, or otherwise transferred except pursuant to an effective
registration under the Act, or pursuant to an exemption from registration under
the Act, the availability of which is to be established to the satisfaction of
the Company.
Warrant Certificate No. W-D
Corgenix Medical Corporation
WARRANT TO PURCHASE
225,000 SHARES OF COMMON STOCK
INCORPORATED UNDER THE LAWS
OF THE STATE OF Colorado
This certifies that, for value received, Bathgate McColley Capital Group,
LLC, the registered holder hereof or assigns (the "Warrant Holder"), is entitled
to purchase from Corgenix Medical Corporation (the "Company"), at any time
during the period commencing at 9:00 a.m., Colorado time, on May 31, 2003, and
expiring at 5:00 p.m., Colorado time, on May 31, 2005, at the purchase price per
Share of $0.25. (the "Exercise Price"), the number of shares of Common Stock of
the Company set forth above (the "Shares"). The warrant will vest if COGX common
stock bid price as quoted on the Electronic Bulletin Board or alternatively by a
nationally recognized exchange, or NASDAQ, exceeds 50 cents per share by May 31,
2002. For purposes of determining when the Warrants are earned, the stock will
have been quoted by the Electronic Bulletin Board or alternatively by a
nationally recognized exchange, or NASDAQ, where the COGX common stock bid price
equals or exceeds the price specified for twenty consecutive trading days. For
purposes of this paragraph, should the specified price level be reached prior to
the termination date, but has not traded for the specified period required under
the earn out, the termination date will extend until five consecutive trading
days from the initial date that the stock exceeded the earn out price. If on
each day of such twenty-day period the stock does not close at or in excess of
the bid price the specific warrant will terminate.The number of shares of Common
Stock of the Company purchasable upon exercise of this warrant shall be subject
to adjustment from time to time as set forth in the Warrant Agreement dated
April 10, 2001 by and between the Company and Bathgate McColley Capital Group,
LLC. (the "Warrant Agreement").
This warrant may be exercised in whole or in part by presentation of this
Warrant Certificate with the Purchase Form attached hereto duly executed and
simultaneous payment of the Warrant Price at the principal office of the
Company. Payment of such price shall be made at the option of the Warrant holder
in cash or by check or by Cashless Exercise subject to the provisions of Section
2.4 of the Warrant Agreement (as that term is defined therein).
This Warrant is issued under and in accordance with Warrant Agreement and
is subject to the terms and provisions contained in the Warrant Agreement, to
all of which the Warrant Holder by acceptance hereof consents.
Upon any partial exercise of this Warrant there shall be signed and issued
to the Warrant Holder a new Warrant Certificate in respect of the Shares as to
which shall not have been exercised. This Warrant may be exchanged at the office
of the Company by surrender of this Warrant Certificate properly endorsed for
one or more new Warrants of the same aggregate number of Shares as here
evidenced by the Warrant or Warrants exchanged. No fractional shares of Common
Stock will be issued upon the exercise of rights to purchase hereunder, but the
Company shall pay the cash value of any fraction upon the exercise of one or
more Warrants. The Warrants are transferable at the office of the Company in the
manner and subject to the limitations set forth in the Warrant Agreement.
This Warrant Certificate does not entitle any Warrant holder to any of the
rights of a stockholder of the Company.
Corgenix Medical Corporation
By: s/ Douglass T. Simpson
----------------------
Douglass T. Simpson
Dated: 4/19/2001
[Seal]
Attest: s/ Taryn G. Reynolds
Taryn G. Reynolds, Secretary
PURCHASE FORM
Dated ,
------------------------ -----
The undersigned hereby irrevocably elects to exercise the Warrant
represented by this Warrant Certificate to the extent of purchasing Shares of
Corgenix Medical Corporation and hereby tenders payment of the exercise price
thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name
----------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------
................................................................................
ASSIGNMENT FORM
FOR VALUE RECEIVED, , hereby sells, assigns and
----------------
transfers unto
Name
----------------------------------------------
(Please type or print in block letters)
Address
----------------------------------------------
the right to purchase Shares of Corgenix Medical Corporation represented by
this Warrant Certificate to the extent of Shares as to which such right
-----
is exercisable and does hereby irrevocably constitute and appoint attorney, to
transfer the same on the books of the Company with full power of substitution in
the premises.
Signature Dated
-------------------- -------------------- -----
Notice: the signature on this assignment must correspond with the name as it
appears upon the face of this Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
................................................................................
WARRANT CONVERSION EXERCISE FORM
TO: Corgenix Medical Corporation
Pursuant to Section 2.4 of the Warrant Agreement, the Holder hereby
irrevocably elects to convert Warrants with respect to Shares of the Company
into Shares of the Company. A conversion calculation is attached hereto as
Exhibit B-1.
The undersigned requests that certificates for such Shares be issued as
follows:
Name:
-----------------------------------------
Address:
-----------------------------------------
Deliver to:
-----------------------------------------
and that a new Warrant Certificate for the balance remaining of the Warrants, if
any, subject to the Warrant be registered in the name of, and delivered to, the
undersigned at the address stated above.
Signature Dated
-------------------- -------------------- -----
Exhibit B-1
CALCULATION OF WARRANT CONVERSION
Converted Securities (Y) =
---------------
Current Market Price (A) = $
--------------
Exercise Price (B) = $
--------------
Converted Shares (X) = Y(A-B)/A
Fractional Converted Shares = (1)
---------------
Where: X = the number of Shares and/or Warrants to be issued to the
------
Holder;
Y = the number of Shares and/or Warrants to be converted
under this Warrant;
A = the Current Market Price of one share of Common Stock
(calculated as described below); and
B = the Share Exercise Price.
(1) Corgenix Medical Corporation to pay for fractional Shares in cash @ $__
per Share.
Sales Agent Agreement
Bathgate McColley Capital Group, LLC
Gentlemen:
Corgenix Medical Corporation, (the "Company"), hereby confirms its agreement
with you (the "Sales Agent") as follows:
Section 1
Representations and Warranties of the Company
Pursuant to the Corgenix Medical Corporation Confidential Private Placement
Memorandum ("PPM") dated December 31, 2000, the Company proposes to offer and
sell to accredited investors, on a best-efforts basis up to $1,000,000 or
5,700,000 shares of the Company's authorized common stock on terms as offered
herein. As of May 7, 2001, and prior to the retention of any Sales Agents by the
Company, a total of $385,000 or 2,194,500 shares had been sold pursuant to this
PPM by the Company.
In order to induce the Sales Agent on a non-exclusive basis, to enter into this
agreement, the Company hereby represents and warrants to and agrees with the
Sales Agent as follows:
1.01 Private Placement Memorandum: The memorandum with respect to the
securities and all exhibits thereto, copies of which have heretofore been
delivered by the Company to the Placement Agent has been prepared by the
Company in conformity with Regulation D. The memorandum includes all
current SEC filings by the Company including its most recent Form 10-K for
its fiscal year ended June 30, 2000 and all subsequently filed Form
10-Q's, 8-K's and any other form filed with Securities and Exchange
Commission subsequent to its Form 10-K filing for the period ending June
30. 2000.
1.02 No Material Adverse Change: Except as reflected in or contemplated by
the Memorandum, and prior to the Closing Date (as defined hereinafter),
there shall not be any material adverse change in the business, properties
or technological position of the Company as a whole and there shall not
have been any material transaction entered into by the Company, other than
transactions entered into in the ordinary course of business.
1.03 Legality of Securities Offered: The securities offered have been duly
and validly authorized and when issued and sold against payment, will be
validly issued, fully paid and non assessable.
1.04 Prior Sales: No securities of the Company have been sold by the Company
or by, or on behalf of, or for the benefit of, any person or persons
controlling, controlled by, or under common control with the Company at
any time prior to the date hereof, except as set forth in Section 1
above. No prior securities sales by the Company or any affiliate are
required to be integrated with the proposed sale of securities of the
Company, such that the availability of Regulation D, or any other
claimed exemption from the registration requirements of the Act would
be made unavailable to the offer and sale of the securities. The
Company represents that any prior sales of securities pursuant to this
memorandum have been made to accredited investors and that such sales
have been made in compliance with all relevant SEC and State securities
regulations.
1.05 Litigation: There is, and at the Closing Date, there will be no action
suit or proceeding pending or to the knowledge of the Company
threatened which might result in judgments against the Company, its
officers, directors or affiliates.
1.06 Authority:The execution and delivery by the Company of this agreement,
has been duly authorized, and this Agreement is valid, binding and
legally enforceable obligation of the Company.
Section 2
Issue Sale and Delivery of Securities
2.01 Sales Agent Appointment: The Company hereby appoints the Sales Agent,
as a non-exclusive agent until JULY 31, 2001, which period may be extended
for an additional period of up to 60 days in the aggregate, by the mutual
consent of the Company and the Sales Agent ("the sales termination date"),
to solicit purchasers on a best efforts basis. The sales agent will
utilize its best efforts to find accredited investors for the securities
offered at a purchase price of $.17544 per share, with a minimum purchase
of 100,000 shares, provided however that final acceptance of any
individual investor will be at the sole discretion of the Company. Each
investor must certify to the Company that such investor is an Accredited
investor as defined in Rule 501(a) of Regulation D.
2.02 Subscription Agreement: Each investor desiring to purchase units will
be required to complete and execute a subscription agreement and all other
offering documents. The Sales Agent will have the right to review such
documents for each investor prior to submission to the Company, and to
reject the tender of any Investor which it deems not acceptable. The
Company upon receipt of the subscription documents and accredited investor
questionnaire, will determine within three business days whether it wishes
to accept the Investor.
2.03 Compensation of Sales Agent: In consideration for the Sales Agents
execution of this agreement, and for the performance of its obligations
hereunder, the Company agrees to pay the Sales Agent a commission of 10%
of the gross proceeds received from the sale of the securities. Any
commission payable to the Sales Agent, will be paid by Company check to
the Sales Agent within 7 business days of receipt of accepted funds from
the Investor. As additional consideration, the Company will issue to the
Sales Agent or, at the Sales Agents sole discretion Registered
Representatives or Principals of the Sales Agent, common stock purchase
warrants to purchase 10% of the aggregate number of securities sold by the
Sales Agent at 120% of the price paid by its investors, which equates to
$.2105 per share. Such warrants will have a 5 year term, and not be
exercisable for twelve months after issuance. The warrants will not be
issued until the closing date of the offering. The warrants will have a
cashless exercise provision.
2.04 Form D: The Sales Agent will supply the Company from time to time
with all information required from the Sales Agent for the completion of
Form D to be filed with Securities and Exchange Commission and such
additional information as the Company may reasonably request to be
supplied with the to the securities authorities of such states in which
the Securities have been qualified for sale, or are exempt from
qualification or registration. A copy of all such State or Federal filings
shall be delivered to the Sales Agent concurrently with its being filed
with any State or Federal agency.
2.05 Representations and Warranties: The Sales Agent represents that it is
a registered broker dealer with the Securities and Exchange Commission and
a member in good standing with the NASD.
2.06 Delivery of Securities: Upon acceptance of any sale of securities by
the Company, the Company will promptly advise its transfer agent to issue
the securities purchased by the investor. The Company will advise its
transfer agent to deliver the securities to the Investors stated address,
unless specific instructions are provided by the investor to deliver the
securities to a fiduciary such as a bank or securities brokerage firm. The
Company will use its best efforts to see that such securities are
delivered within 30 days of the acceptance of purchase, and will provide
to the Sales Agent a copy of all stock certificates issued to its
investors.
Section 3
Memorandum
3.01 Delivery and Form of Memorandum: The Company will procure at its own
expense, within reason, as many copies of the Memorandum as the Sales Agent may
reasonably require for the purposes contemplated by this agreement.
3.02 Amendment of Memorandum: The Company will provide to the Sales Agent any
Amendments to the memorandum required to keep the Memorandum current and
accurate. Such amendments would include any filings with the Securities and
Exchange Commission, and any material developments (adverse or otherwise) of the
Company prior to the closing date.
Section 4
Covenants of the Company
4.01 Blue Sky Memorandum:As a condition of closing, the Company will qualify the
securities offered as requested by the Sales Agent for offer and sale and will
take whatever action is necessary in connection with filing or maintaining any
appropriate exemption from such qualification or registration under the
applicable laws of the State of Colorado. The Company will cause its counsel to
prepare a blue sky memorandum which will set forth those states where the
securities have been registered or qualified for sale, or shall specify the
exemption from registration that may be relied on for the sale of the
securities.
4.02 Due Diligence: The Company will cooperate with the Sales Agent in such
investigation of the Company as the Sales Agent may make or cause to be made of
the business, operations, contracts, and obligations of the Company.
4.03 Periodic Reports: The Company will provide to the Sales Agent and any
investors, for not less than 3 years following the closing date, copies of all
correspondence to shareholders and copies of all press releases or news items
concerning the Company.
Section 5
Indemnification
5.01 Indemnification by Company: The Company agrees to indemnify, defend and
hold harmless the Sales Agent, its representatives and affiliates from and
against any and all losses, claims, damages, liabilities, expenses, joint or
several, including reasonable attorney's and accountant's fees and the costs of
any of the Sales Agent personnel involved in any such matter arising out of the
Company's reckless acts or breaches of law in connection with its performance
under this agreement which they or any of them may incur under the Act, or any
State securities law and the Rules and Regulations thereunder.
5.02 Notification to Company: The indemnified persons agree to notify the
Company promptly of the commencement of any litigation or proceeding against the
indemnified persons of which it may be advised, in connection with the offering
and sale of the securities. The omission of the indemnified persons to so notify
the Company of any such action shall relieve the Company from any liability
which it may have to the indemnified persons.
5.03 Indemnification by Sales Agent: The Sales Agent agrees to indemnify and
hold harmless the Company, its representatives and affiliates from and against
any and all losses claims, damages, liabilities, expenses, joint or several,
including reasonable attorney's and accountant's fees and the costs of any of
Corgenix's personnel involved in any such matter arising out of the Sales
Agent's reckless acts or breaches of law in connection with its performance
under this agreement which they or any of them may incur under the Act, or any
State securities law and the Rules and Regulations thereunder.
5.04 Notification to Sales Agent: The Company and indemnified persons agree to
notify the Sales Agent promptly of the commencement of any litigation or
proceeding against the indemnified persons of which it may be advised, in
connection with the offering and sale of the securities. The omission of the
indemnified persons to so notify the Company of any such action shall relieve
the Company from any liability which it may have to the indemnified persons.
Section 6
Termination
6.01 Failure to Comply with Agreement: This Agreement may be terminated by
either party hereto, by notice to the other party in the event that such party
shall have failed or been unable to comply with any of the terms, conditions or
provisions of this agreement required by either the Company or the Sales Agent
to be performed, complied with or fulfilled by it within the respective times
herein provided for, unless compliance therewith has been expressly waived by
the non-defaulting party in writing.
Section 7
Notice
Except as otherwise expressly provided in this agreement:
7.01 Notice to Company: Whenever notice is required by the provisions of this
Agreement to be given to the Company, such notice shall be in writing to the
Company as provided below:
Corgenix Medical Corporation
Attn: Chief Financial Officer
12061 Tejon Street
Westminster, CO 80234
With a copy to:
Kristin Lentz, Esq
Davis, Graham & Stubbs
1550 Seventeenth St, Suite 500
Denver CO 80202
7.02 Notice to Sales Agent: Whenever notice is required by the provisions of
this Agreement to be given to the Sales Agent, such notice shall be in writing
to the Sales Agent as provided below:
(Placement Agent): Bathgate McColley Capital Group LLC
attention: 5350 S Roslyn St # 380
Address: Englewood CO 80111
Att: Eugene McColley
Section 8
Miscellaneous
8.01 Governing Law: The validity, interpretation, and construction of this
Agreement and of each part hereof will be governed by the laws of the State of
Colorado. The parties agree that any dispute which arises between them relating
to this Agreement or otherwise shall be submitted for resolution in conformity
with the Securities Arbitration Rules of the American Arbitration Association.
The parties agree that the location of an arbitration hearing before the
arbitrators shall be in Denver, Colorado and each party shall request such
location.
8.02 Counterparts: This agreement may be executed in any number of
------------
counterparts, each of which will constitute an original.
Please confirm that the foregoing correctly sets forth the Agreement between you
and the Company.
Sincerely,
Corgenix Medical Corporation
5/21/01 By: s/ William H. Critchfield
-------------------------
Date: William H. Critchfield, CFO
We hereby confirm as of the date hereof that the above letter sets forth the
Agreement between the Company and us.
Bathgate McColley Capital Group, LLC
5/21/01 By: s/ Eugene C. McColley
Date: Eugene C. McColley, Manager
Consent of Independent Auditors
The Board of Directors
Corgenix Medical Corporation
We consent to incorporation by reference in the registration statements on Form
S-8 of Corgenix Medical Corporation of our report dated August 21, 2001,
relating to the balance sheets of Corgenix UK Limited as of June 30, 2001 and
2000, and the related financial statements for each of the years in the two year
period ended June 30, 2001, and all related schedules, which reports appears in
the June 30, 2001, annual report on Form 10-KSB of Corgenix Medical Corporation.
SR HOWELL & CO
Ramsey, UK
September 27, 2001
Consent of Independent Auditors
The Board of Directors
Corgenix Medical Corporation:
We consent to incorporation by reference in the registration statements on Form
S-8 of Corgenix Medical Corporation of our report dated September 21, 2001,
relating to the consolidated balance sheets of Corgenix Medical Corporation and
subsidiaries as of June 30, 2001 and 2000, and the related consolidated
statements of operations and comprehensive income, stockholders' equity
(deficit) and cash flows for the years then ended which reports appears in the
June 30, 2001, annual report on Form 10-KSB of Corgenix Medical Corporation.
KPMG LLP
Denver, Colorado
September 27, 2001
CORGENIX MEDICAL CORPORATION
AND SUBSIDIARIES
Consolidated Financial Statements
June 30, 2001 and 2000
(With Independent Auditors' Report Thereon)
CORGENIX MEDICAL CORPORATION
AND SUBSIDIARIES
Index to Consolidated Financial Statements
Page
Independent Auditors' Report F-1
Consolidated Balance Sheets as of June 30, 2001 and 2000 F-2
Consolidated Statements of Operations and Comprehensive
Income for the years ended June 30, 2001 and 2000 F-3
Consolidated Statements of Stockholders' Equity (Deficit)
for the years ended June 30, 2001 and 2000 F-4
Consolidated Statements of Cash Flows for the years ended
June 30, 2001 and 2000 F-5
Notes to Consolidated Financial Statements F-6
F-3
Independent Auditors' Report
The Board of Directors
Corgenix Medical Corporation:
We have audited the accompanying consolidated balance sheets of Corgenix Medical
Corporation and subsidiaries (Company) as of June 30, 2001 and 2000, and the
related consolidated statements of operations and comprehensive income,
stockholders' equity (deficit) and cash flows for the years then ended. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits. We did not audit the financial
statements of Corgenix UK Limited, a wholly-owned subsidiary, as of and for the
years ended June 30, 2001 and 2000, which statements reflect total assets
constituting 14 percent and 22 percent, respectively, and total revenue
constituting 13 percent and 23 percent, respectively, of the related
consolidated totals. Those statements were audited by other auditors whose
report has been furnished to us, and our opinion, insofar as it relates to the
amounts included for Corgenix UK Limited, are based solely on the report of the
other auditors.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits and the report of
the other auditors provide a reasonable basis for our opinion.
In our opinion, based on our audits and the report of the other auditors, the
consolidated financial statements referred to above present fairly, in all
material respects, the financial position of Corgenix Medical Corporation and
subsidiaries as of June 30, 2001 and 2000, and the results of their operations
and their cash flows for the years then ended, in conformity with accounting
principles generally accepted in the United States of America.
Denver, Colorado
September 21, 2001
CORGENIX MEDICAL CORPORATION
AND SUBSIDIARIES
Consolidated Balance Sheets
June 30, 2001 and 2000
Assets 2001 2000
----------- -----------
Current assets:
Cash and cash equivalents $ 320,140 46,698
Accounts receivable, less allowance for
doubtful accounts of $14,000 and $7,000
in 2001 and 2000, respectively 585,704 610,591
Inventories 556,521 551,082
Prepaid expenses 13,612 511
----------- -----------
Total current assets 1,475,977 1,208,882
----------- -----------
Equipment:
Machinery and laboratory equipment 353,549 302,949
Software, furniture, fixtures and office
equipment 1,010,631 800,055
----------- -----------
1,364,180 1,103,004
Accumulated depreciation and amortization (551,393) (469,772)
----------- -----------
Net equipment 812,787 633,232
----------- -----------
Intangible assets:
Patents, net of accumulated amortization
of $795,986 and $721,490
in 2001 and 2000, respectively 321,558 396,054
Goodwill, net of accumulated amortization
of $41,067 and $37,155
in 2001 and 2000, respectively 17,589 21,501
----------- -----------
339,147 417,555
----------- -----------
Due from officer 12,000 12,000
Other assets 65,179 18,718
----------- -----------
Total assets $ 2,705,090 2,290,387
=========== ===========
Liabilities and Stockholders' Equity
(Deficit)
Current liabilities:
Current portion of notes payable $ 188,998 213,816
Current portion of capital lease
obligation 31,186 19,667
Accounts payable 746,642 890,907
Accrued payroll and related liabilities 141,528 125,163
Accrued interest payable 82,689 77,762
Other liabilities 72,642 212,220
Employee stock purchase plan payable 2,235 2,656
----------- -----------
Total current liabilities 1,265,920 1,542,191
Notes payable, excluding current portion 618,370 735,479
Capital lease obligation, excluding current
portion 49,378 56,189
----------- -----------
Total liabilities 1,933,668 2,333,859
----------- -----------
Stockholders' equity (deficit):
Preferred stock, $0.001 par value.
Authorized 5,000,000 shares,
none issued or outstanding -- --
Common stock, $0.001 par value.
Authorized 40,000,000 and 20,000,000
shares in 2001 and 2000, respectively;
issued and outstanding 20,386,448
and 17,416,562 shares in 2001 and 2000,
respectively 20,386 17,417
Additional paid-in capital 4,459,254 3,958,898
Accumulated deficit (3,736,486) (4,032,648)
Accumulated other comprehensive income 28,267 12,861
----------- -----------
Total stockholders' equity (deficit) 771,421 (43,472)
----------- -----------
Commitments and contingencies
Total liabilities and stockholders'
equity (deficit) $ 2,705,089 2,290,387
=========== ===========
See accompanying notes to consolidated financial statements.
CORGENIX MEDICAL CORPORATION
AND SUBSIDIARIES
Consolidated Statements of Operations and Comprehensive Income
Years ended June 30, 2001 and 2000
2001 2000
----------- -----------
Net sales $ 4,229,712 3,544,953
Cost of sales 1,563,092 1,472,954
----------- -----------
Gross profit 2,666,620 2,071,999
----------- -----------
Operating expenses:
Selling and marketing 805,993 673,609
Research and development 356,861 348,449
General and administrative 1,061,010 700,670
----------- -----------
2,223,864 1,722,728
----------- -----------
Operating income 442,756 349,271
----------- -----------
Other expense -
interest expense (128,906) (148,854)
----------- -----------
(128,906) (148,854)
----------- -----------
Income before income taxes 313,851 200,417
Income tax expense 17,689 --
----------- -----------
Net income $ 296,162 200,417
=========== ===========
Net income per share basic and diluted $ 0.02 0.01
=========== ===========
Weighted average shares outstanding - basic $ 18,298,435 17,230,707
=========== ===========
Weighted average shares outstanding -
diluted $ 18,467,834 17,230,707
=========== ===========
Net income $ 296,162 200,417
Other comprehensive income -
foreign currency translation gain 15,406 12,861
----------- -----------
Total comprehensive income $ 311,568 213,278
=========== ===========
See accompanying notes to consolidated financial statements.
F-5
CORGENIX MEDICAL CORPORATION
AND SUBSIDIARIES
Consolidated Statements of Stockholders' Equity (Deficit)
Years ended June 30, 2001 and 2000
Common Accumulated Total
stock, Additional other stockhlders'
$0.001 paid-in Accumulated comp. equity
par capital deficit income (deficit)
----------- ------------ ------------ ----------------
Balances at June 30,
1999 $ 16,852 3,859,806 (4,233,065) -- (356,407)
Issuance of common
stock for services 565 99,092 -- -- 99,657
Foreign currency
translation adjustment -- -- -- 12,861 12,861
Net loss -- -- 200,417 -- 200,417
----------- ------------ ------------ ----------------
Balances at June 30,
2000 17,417 3,958,898 (4,032,648) 12,861 (43,472)
Issuance of common
stock in connection
with private
placement (net of
offering costs of
$20,863) 2,829 472,541 -- -- 475,370
Issuance of common
stock for services 140 18,143 -- -- 18,283
Issuance of warrants
for services -- 6,892 -- -- 6,892
Issuance of stock
options for services -- 2,780 -- -- 2,780
Foreign currency
translation -- -- -- 15,406 15,406
Net income -- -- 296,162 -- 296,162
----------- ------------ ------------ ----------------
Balances at June 30,
2001 $ 20,386 4,459,254 (3,736,486) 28,267 771,421
=========== ============ ============ ======= =========
See accompanying notes to consolidated financial statements.
CORGENIX MEDICAL CORPORATION
AND SUBSIDIARIES
Consolidated Statements of Cash Flows
Years ended June 30, 2001 and 2000
2001 2000
----------- ----------
Cash flows from operating activities:
Net income $ 296,162 200,417
Adjustments to reconcile net income to net
cash provided
by operating activities:
Depreciation and amortization 160,029 149,076
Equity instruments issued for services 27,055 99,657
Provision for doubtful accounts 7,000 --
Changes in operating assets and
liabilities:
Accounts receivable 23,310 (94,409)
Inventories (4,439) (32,867)
Prepaid expenses and other assets (59,562) 23,435
Accounts payable (134,265) 106,685
Accrued payroll and related
liabilities 16,365 11,102
Employee stock purchase plan payable (421) (328)
Accrued interest and other liabilities (134,650) 184,454
----------- ----------
Net cash provided by operating
activities 196,584 647,222
----------- ----------
Cash flows used by investing activities -
purchase of equipment (231,559) (472,791)
----------- ----------
Cash flows from financing activities:
Proceeds from issuance of common stock 496,233 --
Proceeds from issuance of warrants 900 --
Proceeds from issuance of notes payable -- 18,960
Payments on notes payable (141,927) (157,578)
Payments on capital lease obligations (24,909) (6,899)
Payment for costs of issuance of common
stock (20,863) --
----------- ----------
Net cash provided (used) by
financing activities 309,434 (145,517)
----------- ----------
Net increase in cash and cash
equivalents 274,459 28,914
Impact of foreign currency translation
adjustment on cash (1,017) (1,821)
Cash and cash equivalents at beginning of year 46,698 15,963
----------- ----------
Cash and cash equivalents at end of year $ 320,140 46,698
=========== ==========
Supplemental cash flow disclosures:
Cash paid for interest $ 123,979 101,457
=========== ==========
Cash paid for income taxes $ 8,000 --
=========== ==========
Noncash financing activities:
Common stock warrants issued for note
payable $ -- 66,040
=========== ==========
Accounts payable converted to note payable $ -- 55,000
=========== ==========
Noncash investing and financing activity -
equipment acquired under capital leases $ 29,617 71,569
=========== ==========
See accompanying notes to consolidated financial statements.
CORGENIX MEDICAL CORPORATION
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
June 30, 2001 and 2000
(1) Summary of Significant Accounting Policies
(a) Business and Basis of Presentation
On May 22, 1998, REAADS Medical Products (REAADS) completed a merger
with a subsidiary of Gray Wolf Technologies, Inc., an inactive
corporation with no significant assets or operations. The resulting
merged corporation was named Corgenix, Inc. The parent corporation was
renamed Corgenix Medical Corporation (Corgenix or the Company).
Corgenix develops, manufactures and markets diagnostic products for the
serologic diagnosis of certain vascular diseases and autoimmune
disorders using proprietary technology. The Company markets its products
to hospitals and free-standing laboratories worldwide through a network
of sales representatives, distributors and private label (OEM)
agreements. The Company's corporate office and manufacturing facility
are located in Westminster, Colorado.
The consolidated financial statements include the accounts of the
Company and its wholly owned subsidiaries, Corgenix, Inc. and REAADS
Bio-medical Products (UK) Limited (REAADS UK) and healthoutfitters.com,
Inc. REAADS UK was established as a United Kingdom company during 1996
to market the Company's products in Europe. Transactions are generally
denominated in US dollars.
(b) Use of Estimates
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the reported
amounts of revenue and expenses during the reporting period. Actual
results could differ significantly from those estimates.
(c) Cash and Cash Equivalents
The Company considers all highly liquid debt instruments purchased with
maturities of three months or less to be cash equivalents.
(d) Inventories
Inventories are recorded at the lower of cost or market, using the
first-in, first-out method. Components of inventories as of June 30, are
as follows:
2001 2000
---------- -----------
Raw materials $ 142,585 141,064
Work-in-process 216,345 236,078
Finished goods 201,071 173,940
---------- -----------
$ 556,521 551,082
========== ===========
(e) Equipment and Software
Equipment and software is recorded at cost. Depreciation, which totaled
$81,621 and $70,663 for the years ended June 30, 2001 and 2000,
respectively, is calculated primarily using the straight-line method
over the estimated useful lives of the assets which range from 3 to 7
years. In the year ended June 30, 2001, the Company established an
e-commerce site for selling medical and health products directly to
consumers. The internal and external costs of developing the software,
other than initial design, were capitalized and will be amortized on the
straight-line method over three years starting in fiscal year 2002.
(f) Intangible Assets
Intangible assets consist of purchased patents and goodwill, which are
amortized using the straight-line method over 15 years.
(g) Income Taxes
Under the asset and liability method of recording income taxes, which
the Company follows, deferred tax assets and liabilities are recognized
for the future tax consequences attributable to differences between the
financial statement carrying amounts of existing assets and liabilities
and their respective tax bases. Deferred tax assets and liabilities are
measured using enacted tax rates expected to apply to taxable income in
the years in which those temporary differences are expected to be
recovered or settled. The effect on deferred tax assets and liabilities
of a change in tax rates is recognized in the consolidated statements of
operations in the period that includes the enactment date.
(h) Revenue Recognition
Revenue is recognized upon shipment of products.
(i) Research and Development
Research and development costs and any costs associated with internally
developed patents, formulas or other proprietary technology are expensed
as incurred.
(j) Long-Lived Assets
The Company's long-lived assets are reviewed for impairment whenever
events or changes in circumstances indicate that the carrying amount of
such assets may not be recoverable. Events relating to recoverability
may include significant unfavorable changes in business conditions,
recurring losses, or a forecasted inability to achieve break-even
operating results over an extended period. The Company evaluates the
recoverability of long-lived assets based upon forecasted undiscounted
cash flows. Should an impairment in value be indicated, the carrying
value of intangible assets will be adjusted, based on estimates of
future discounted cash flows resulting from the use and ultimate
disposition of the asset.
(k) Stock-Based Compensation
The Company accounts for its stock plans in accordance with the
provisions of Accounting Principles Board (APB) Opinion No. 25,
Accounting for Stock Issued to Employees, and related
interpretations. As such, compensation expense is recorded on the
date of grant only if the current market price of the underlying stock
exceeds the exercise price. Statement of Financial Accounting
Standards No. 123 (SFAS No. 123), Accounting for Stock-Based
Compensation, permits entities to recognize as expense over the
vesting period the fair value of all stock-based awards on the date of
grant. Alternatively, SFAS No. 123 also allows entities to continue
to apply the provisions of APB Opinion No. 25 and provide pro forma
net income disclosures for employee stock option grants as if the
fair-value-based method defined in SFAS No. 123 had been applied. The
Company has elected to continue to apply the provisions of APB Opinion
No. 25 and provide the pro forma disclosures required by SFAS No. 123.
(l) Earnings Per Share
Basic earnings per share is computed by dividing net income by the
weighted average number of common shares outstanding. Diluted earnings
per share is computed by dividing net income by the weighted average
number of common shares outstanding increased for potentially dilutive
common shares outstanding during the period. The dilutive effect of
stock options and their equivalents is calculated using the treasury
stock method. In fiscal year 2000, stock options are anti-dilutive due
to the exercise price exceeding market price.
2001 2000
----------- -----------
Net income $ 296,162 200,417
----------- -----------
Common and common equivalent shares outstanding:
Historical common shares
outstanding at beginning of
year 17,416,562 16,852,116
Weighted average common
equivalent shares issued
during year 881,873 378,591
----------- -----------
Weighted average common
shares - basic 18,298,435 17,230,707
Weighted average common
equivalent shares issued
during the year 169,399 --
----------- -----------
Weighted average common
shares - diluted 18,467,834 17,230,707
=========== ===========
Net income per share - basic and
diluted $ .02 .01
=========== ===========
Options to purchase common stock and warrants totaling 699,050 and
119,397 shares, respectively, are not included as their effect is
anti-dilutive.
(m) The Company has recorded contingent stock purchase warrants in
accordance with Emerging Issues Task Force Bulletin 96-18: Accounting
for Equity Instruments That Are Issued to Other Than Employees for
Acquiring, or in Conjunction with Selling, Goods or Services. At the
grant date, the minimum number of warrants which may eventually be
issued are recorded at their fair value, which is adjusted in subsequent
periods for revisions of the minimum number of warrants to be issued and
the then current fair value of the warrants.
(n) Reclassifications
Certain 2000 amounts have been reclassified to conform to the 2001
presentation.
(2) Notes Payable
Notes payable consist of the following at June 30, 2001 and 2000:
2000 2000
---------- ----------
Note payable to a bank, with interest
at prime plus 2.75% (9.50% at June 30,
2001), due in monthly installments of principal and
interest of $14,415 through January
2007, collateralized by commercial
security agreements and a key man
life insurance policy $ 718,750 818,274
Notes payable to former preferred
stockholders, with interest at 12%,
due on demand 80,618 104,061
Note payable, with interest at prime
plus 3%, due on demand 8,000 8,000
Notes payable to former consultants,
with interest at 10.25% -- 18,960
---------- ----------
807,368 949,295
Less current portion (188,998) (213,816)
---------- ----------
Notes payable, excluding
current portion $ 618,370 735,479
========== ==========
Certain of the notes payable restrict the payment of dividends on the
Company's common stock. Aggregate maturities of notes payable by year as of
June 30, 2001, are as follows:
Years ending June 30:
2002 $ 188,998
2003 110,975
2004 121,989
2005 134,096
2006 147,404
Thereafter 103,906
-----------
$ 807,368
===========
The carrying values of notes payable approximate fair value based on their
terms and floating market based interest rates.
(3) Stock Compensation and Stock Purchase Plan
Effective January 1, 1999, the Company adopted an Employee Stock Purchase
Plan to provide eligible employees an opportunity to purchase shares of its
common stock through payroll deductions, up to 10% of eligible compensation.
The plan is registered under Section 423 of the Internal Revenue Code of
1986. Each quarter, participant account balances are used to purchase shares
of stock at the lesser of 85% of the fair value of shares on the beginning
(grant date) and end (exercise date) of each quarter. No right to purchase
shares shall be granted if, immediately after the grant, the employee would
own stock aggregating 5% or more of the total combined voting power or value
of all classes of stock. A total of 500,000 common shares were registered
under an S-8 filing, a portion of which are available for purchase under the
plan. There were 123,078 and 95,251 shares issued under the plan during
fiscal years 2001 and 2000, respectively. Compensation expense is recognized
for the fair value of the employee's purchase rights. The weighted-average
fair value of those purchase rights granted in fiscal year 2001 and 2000 was
$.25 and $.178 per share, respectively.
Effective January 1, 1999, the Company adopted a Stock Compensation Plan to
provide executive officers an opportunity to purchase shares of its common
stock as a bonus or in lieu of cash compensation for services rendered. Each
quarter, the officers may purchase shares of stock at the lesser of 85% of
the fair value of shares on the beginning (grant date) and end (exercise
date) of each quarter. The Stock Compensation Plan expired on December 31,
2000. A total of 500,000 common shares were registered under an S-8 filing,
a portion of which were available for purchase under the plan. There were
50,000 shares issued under the plan during fiscal 2000. Compensation expense
was recognized for the fair value of the executive officers' purchase
rights. The weighted-average fair value of those purchase rights granted in
fiscal year 2000 was $0.188 per share.
In March 2000 the Company reserved 1,000,000 shares of its common stock for
an incentive stock option plan (Plan) for employees, directors and
consultants. Options are granted at the discretion of the board of directors
with an exercise price equal to or greater than fair value at the grant
date.
Detail of options follows:
Weighted
Range of average
Number of exercise exercise
shares prices price
------------ ------------ -----------
------------ ------------ -----------
Balance at June 30, -- -- --
1999
Granted 119,397 $ 0.136 -1.00 0.314
Exercised -- -- --
Canceled -- -- --
------------
Balance at June 30, 119,397 0.136 - 1.00 0.314
2000
Granted 705,000 0.001 - 1.00 0.1521
Exercised -- -- --
Canceled (1,600) 0.656 0.656
------------
Balance at June 30, 822,797 0.001 -1.00 0.170
2001
============
The following table summarizes information about stock options issued to
employees and directors that are outstanding at June 30, 2001:
Options outstanding Options
exercisable
----------------------------------------- -------------------
Range Weighted
average Weighted Weighted
of remaining average average
exercise Number contractual exercise Numbr exercise
price outstanding life price exercisable price
--------- --------- --------- ------- --------- --------
--------- --------- --------- ------- --------- --------
$ 0.001 20,000 6.7 0.001 20,000 0.001
0.125 -0.275 778,747 6.6 0.164 120,747 0.200
0.656 -1.000 24,050 5.9 0.785 5,000 0.656
--------- --------- ------- --------- --------
--------- --------- ------- --------- --------
822,797 6.5 0.170 145,747 0.189
========= ========= ======= ========= ========
Had the Company determined compensation cost based on the fair value at the
date of grant for its stock options under SFAS No. 123, the Company's net
income would have been reduced to the pro forma amounts indicated as
follows:
2001 2000
----------- ---------
----------- ---------
Net income as reported $ 296,162 200,417
Net income pro forma 189,562 185,417
Net income per share as reported 0.02 0.01
Net income per share pro forma 0.01 0.01
Fair value was determined using the Black Scholes option - pricing model
with the following assumptions: no expected dividends, volatility of 275%,
risk-free interest rate of 5.1% and expected lives of seven years.
(4) Commitments and Contingencies
(a) Leases
The Company is obligated under various noncancelable operating and
capital leases primarily for its operating facility and certain office
equipment. The leases generally require the Company to pay related
insurance costs, maintenance costs and taxes. Future minimum lease
payments under noncancelable leases with initial or remaining terms in
excess of one year as of June 30, 2001, are as follows:
Capital Operating
leases leases
---------- ----------
Years ending June 30:
2002 $ 43,834 135,061
2003 40,421 137,448
2004 10,084 137,220
2005 10,084 140,824
2006 -- 146,457
Thereafter -- 24,567
---------- ----------
Total future minimum lease 104,423 721,577
payments
Less amount representing interest 23,859
----------
Present value of minimum 80,564
lease payments
Less current portion 31,186
----------
$ 49,378
==========
Rent expense totaled $123,000 and $100,000 for the years ended June 30,
2001 and 2000, respectively.
(b) Employment Agreements
The Company has employment agreements with certain key employees,
certain of whom are also stockholders. In addition to salary and benefit
provisions, these agreements include defined commitments should the
employees terminate their employment with or without cause.
(c)
Warrants
The Company sold in April 2001, for $900, warrants to purchase 900,000
shares of, its common stock at $0.25 per share. Warrants to purchase
225,000 shares vest ratably over one year. The remaining warrants vest
only if defined future events occur. The Company is recognizing expense
based on the fair value of the warrants ratably over the vesting period
for the time based warrants. Fair value was determined using the Black
Scholes option-pricing model with the following assumptions: no expected
dividends, volatility of 275%, risk-free interest rate of 4.4% and
expected life of three years. The remaining warrants will be valued when
the number of warrants becomes known.
(5) Income Taxes
Income tax expense differed from the amounts computed by applying the U.S.
federal income tax rate of 34% to pretax income as a result of the
following:
2001 2000
----------- -----------
Computed expected tax expense $ 106,709 68,000
Reduction (increase) in income taxes
resulting from:
Permanent differences (40,000) (35,000)
Impact of foreign loss not
deductible in the United States 40,000 45,000
Change in valuation allowance (89,020) (85,900)
----------- -----------
----------- -----------
$ 17,689 --
=========== ===========
At June 30, 2001, the Company has a net operating loss carryforward for
income tax purposes of approximately $2,750,000 expiring during the period
from 2006 to 2019. Research and experimentation tax credit carryforwards
approximate $225,000. The future utilization of the operating loss
carryforwards or the time period in which the carryforwards may be utilized
could be limited if certain historical stockholders of REAADS sell their
shares within two years of the purchase of Gray Wolf. The utilization of net
operating losses may also be limited due to a change in ownership under
Internal Revenue Code Section 382.
As of June 30, 2001, the Company had a gross deferred tax asset of
approximately $1,050,000 relating primarily to the Company's net operating
losses and research and experimentation credit carryforwards. A valuation
allowance in the amount of the deferred tax asset has been recorded due to
management's determination that it is not more likely than not that the tax
assets will be utilized.
(6) Related Party Transactions
The Company has entered into product development, manufacturing and
distribution agreements with Chugai, which provide certain rights for Chugai
to distribute the Company's products in Japan. Amounts due from an officer
are due upon demand, and do not bear interest.
(7) Concentration of Credit Risk
The Company's customers are principally located in the United States,
although there are significant foreign customers. The Company has a
distribution agreement with Cambridge Life Sciences plc to distribute the
Company's products in Europe. The Company performs periodic credit
evaluations of its customers' financial condition but generally does not
require collateral for receivables.
Chugai is the Company's largest customer, representing approximately 12% and
17% of sales in the years ended June 30, 2001 and 2000, respectively, and
approximately 10% and 9% of accounts receivable at June 30, 2001 and 2000,
respectively.
(8) Reportable Segments
The Company has two segments of business, domestic and international
operations. International operations primarily transacts sales with
customers in the United Kingdom and Europe, while domestic operations
transact all other sales. The following table sets forth selected financial
data for these segments for the years ended June 30, 2001 and 2000.
Year ended June 30, 2001
----------------------------------
Domestic International Total
---------- ---------- ---------
Net sales - external $ 3,698,712 997,743 4,696,455
customers
Net sales - internal (466,743)
customers (466,743) --
----------
---------- ---------- ---------
Total net sales $ 3,231,969 997,743 4,229,712
========== ========== =========
========== ========== =========
Depreciation and
amortization $ 158,893 1,136 160,029
========== ========== =========
========== ========== =========
Interest expense $ 108,585 20,321 128,906
========== ========== =========
========== ========== =========
Net income (loss) $ 411,115 (114,953) 296,162
========== ========== =========
========== ========== =========
Segment assets $ 2,322,239 382,851 2,705,090
========== ========== =========
Year ended June 30, 2000
----------------------------------
Domestic International Total
---------- ---------- ---------
Net sales - external
customers $ 3,101,872 799,758 3,901,630
Net sales - internal (356,677)
customers (356,677) --
---------- ---------- ---------
---------- ---------- ---------
Total net sales $ 2,745,195 799,758 3,544,953
========== ========== =========
========== ========== =========
Depreciation and
amortization $ 146,180 2,896 149,076
========== ========== =========
========== ========== =========
Interest expense $ 148,854 -- 148,854
========== ========== =========
========== ========== =========
Net income (loss) $ 333,861 (133,444) 200,417
========== ========== =========
========== ========== =========
Segment assets $ 2,139,779 150,608 2,290,387
========== ========== =========
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
Registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized, on this 2nd day of October 2000.
CORGENIX MEDICAL CORPORATION
By: /s/ Luis R. Lopez, M.D.
------------------------
Luis R. Lopez, M.D.
Chairman and Chief Executive Officer
In accordance with the Exchange Act, this report has been signed
below by the following persons on behalf of the Registrant and in the capacities
and on the dates indicated.
Signatures Title Date
/s/ Luis R. Lopez, M.D. Chairman of the Board, Chief September 28, 2001
----------------------- Executive Officer and Director
Luis R. Lopez, M.D. (principal executive officer)
/s/ Douglass T. Simpson President and Director September 28, 2001
-----------------------
Douglass T. Simpson
/s/ William H. Critchfield Vice President and Chf Fin. September 28, 2001
-------------------------- and Accounting Officer
William H. Critchfield
/s/ Jack W. Payne Director September 2, 2001
---------------------
Jack W. Payne