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Exhibit 10.57
SECURITIES PURCHASE AGREEMENT
BETWEEN
AMDL, INC.
AND
CHINESE UNIVERSAL TECHNOLOGIES CO., LTD.
DATED
AS OF
DECEMBER 14, 2000
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TABLE OF CONTENTS
<TABLE>
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Page
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1. PURCHASE AND SALE OF SHARES............................................................1
1.1 Purchase and Sale of Common Stock...............................................1
1.2 Deliveries at Closing...........................................................1
1.3 Date and Time of Closing........................................................2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................2
2.1 Organization and Good Standing..................................................2
2.2 Capitalization..................................................................2
2.3 Validity of Transactions........................................................3
2.4 No Violation....................................................................3
2.5 SEC Reports and Financial Statements............................................3
2.6 Subsidiaries....................................................................3
2.7 Litigation......................................................................3
2.8 Taxes...........................................................................4
2.9 Securities Law Compliance.......................................................4
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER........................................4
3.1 Legal Power.....................................................................4
3.2 Validity of Transactions........................................................4
3.3 No Violation....................................................................4
3.4 Receipt and Review of SEC Reports...............................................5
3.5 Restricted Securities...........................................................5
3.6 Purchaser Sophistication and Ability to Bear Risk of Loss.......................6
3.7 No Purchase by a Group..........................................................6
3.8 13-D Filing.....................................................................6
4. CONDITIONS TO CLOSING..................................................................6
4.1 Conditions to Obligations of the Purchaser......................................6
4.2 Conditions to Obligations of the Company........................................7
5. MISCELLANEOUS..........................................................................7
5.1 Choice of Law and Construction..................................................7
5.2 Successors and Assigns..........................................................8
5.3 Entire Agreement................................................................8
5.4 Separability....................................................................8
5.5 Amendment and Waiver............................................................8
5.6 Notices.........................................................................8
5.7 Titles and Subtitles............................................................9
</TABLE>
Schedules:
2.5.1 Annual Report on Form 10-KSB for the fiscal year ended December
31, 1999
2.5.2 Quarterly Report on Form 10-QSB for the Quarter ended September
30, 2000
Exhibits:
A Secured Promissory Note
B Security and Pledge Agreement
C Voting Trust Agreement
D Exclusive Distribution Agreement
(i)
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AMDL, INC.
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("Agreement") is made as of December
14, 2000, by and between AMDL, INC., a Delaware corporation (the "Company"),
with its principal office at 2492 Walnut Avenue, Tustin, California 92780 and
CHINESE UNIVERSAL TECHNOLOGIES CO., LTD., a Taiwanese corporation, (the
"Purchaser").
R E C I T A L S
A. The Company desires to obtain funds from the Purchaser in order to
further the operations of the Company.
B. The Company desires to sell and Purchaser desires to purchase an
aggregate of Two Million (2,000,000) shares (the "Shares") of Common Stock,
$.001 par value per share ("Common Stock"), on the terms and subject to the
conditions set forth herein.
C. As a condition of such purchase and sale, Purchaser has agreed to
subject the Shares to a Voting Trust Agreement.
A G R E E M E N T
It is agreed as follows:
1. PURCHASE AND SALE OF SHARES.
1.1 Purchase and Sale of Common Stock. In reliance upon the
representations and warranties of the Company and Purchaser contained herein and
subject to the terms and conditions set forth herein, Purchaser hereby agrees to
purchase, and the Company hereby agrees to sell and issue to Purchaser, the
Shares at a purchase price of $1.35 per Share (the "Purchase Price"), payable as
follows:
1.1.1 Seven Hundred Thousand Dollars ($700,000) in cash.
1.1.2 A secured promissory note in the original principal
amount of Two Million Dollars ($2,000,000) in the form attached hereto as
Exhibit A (the "Promissory Note").
1.2 Deliveries at Closing.
1.2.1 Purchaser shall deliver good funds in the aggregate
amount of $700,000.00 by wire transfer or other means acceptable to the Company.
1.2.2 Purchaser shall deliver the Promissory Note, duly
executed by the Purchaser.
1.2.3 Purchaser shall deliver a pledge agreement in the
form attached hereto as Exhibit B (the "Pledge Agreement"), together with a
stock assignment separate from
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certificate in the form attached as Exhibit A-1 to the Pledge Agreement (the
"Stock Power"), both duly executed by the Purchaser.
1.2.4 Purchaser and the Company shall deliver a voting
trust agreement in the form attached hereto as Exhibit C (the "Voting Trust
Agreement"), duly executed by both parties.
1.2.5 Purchaser and the Company shall deliver an exclusive
distribution agreement in the form attached hereto as Exhibit D (the
"Distribution Agreement"), duly executed by both parties.
1.2.6 Company shall forthwith cause its transfer agent,
Corporate Stock Transfer, to issue certificates in the name of Purchaser
representing the Shares. The Shares shall be delivered to the Trustees under the
Voting Trust Agreement. The Trustees shall cause voting trust certificates to be
issued thereunder. The Shares which are the subject of the Pledge Agreement
(which will then be represented by voting trust certificates totaling 1,481,481
Shares) shall be delivered to Oppenheimer Wolff & Donnelly LLP, as Agent,
pursuant to the Pledge Agreement, and the remaining 518,519 Shares (which will
then be represented by voting trust certificates and are not the subject of the
Pledge Agreement) shall be delivered to the Purchaser.
1.3 Date and Time of Closing. The closing of the sale of shares
of Common Stock contemplated by this Agreement (the "Closing") shall take place
at such time and place as the Company and Purchaser shall agree.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to the Purchaser to enter into this
Agreement and to purchase the Shares of Common Stock, the Company represents and
warrants that the following statements are true and correct in all material
respects as of the date hereof and will be true and correct in all material
respects at Closing, except as expressly qualified or modified herein.
2.1 Organization and Good Standing. The Company is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware and has full corporate power and authority to enter into and
perform its obligations under this Agreement, and to own its properties and to
carry on its business as presently conducted and as proposed to be conducted.
The Company is duly qualified to do business as a foreign corporation in every
jurisdiction in which the failure to so qualify would have a material adverse
effect upon the Company.
2.2 Capitalization. The Company is authorized to issue 50,000,000
shares of Common Stock of which, as of December 12, 2000, approximately
3,224,024 shares are issued and outstanding. The Company is also authorized to
issue 10,000,000 shares of preferred stock, $.001 par value per share of which,
11,000 shares have been designated Series A Preferred Stock, none of which are
issued and outstanding as of the date of this Agreement. All outstanding Shares
of Common Stock have been duly authorized and validly issued, and are fully
paid, nonassessable, and free of any preemptive rights. Except for (i) options
and warrants outstanding to purchase an aggregate of approximately 2,000,000
shares of Common Stock; and (ii) such other securities as are set forth in the
SEC Reports (as hereinafter defined in
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Section 2.5), at Closing, there will not be outstanding, nor will the Company be
subject to any agreement under which there may become outstanding, any right to
purchase, or security convertible into or exchangeable for, any other capital
stock of the Company, including, but not limited to, options, warrants, or
rights. Except as set forth herein or in the SEC Reports, the Company is under
no obligation (contingent or otherwise) to purchase or otherwise acquire or
retire any of its securities. There are no agreements in existence, and at the
Closing, there will be no agreements in existence other than the Voting Trust
Agreement, which require the Company to elect any person to its Board of
Directors or otherwise pertain to the voting of any capital stock of the
Company.
2.3 Validity of Transactions. This Agreement, and each document
to be executed and delivered by the Company in connection with the transactions
contemplated by this Agreement, have been, and will have been as of the Closing,
duly authorized, executed and delivered by the Company and is, and will each be
at the Closing, the valid and legally binding obligation of the Company,
enforceable in accordance with their respective terms, except as limited by
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws affecting enforcement of creditor's rights generally and by general
principles of equity.
2.4 No Violation. The execution, delivery and performance of this
Agreement has been duly authorized by the Company's Board of Directors and, to
the extent necessary, the stockholders of the Company, will not violate any law
or any order of any court or government agency applicable to the Company, as the
case may be, or the Certificate of Incorporation or Bylaws of the Company, and
will not result in any breach of or default under, or, except as expressly
provided herein, result in the creation of any encumbrance upon any of the
assets of the Company pursuant to the terms of any agreement or instrument by
which the Company or any of its assets may be bound. No approval of or filing
with any governmental authority is required for the Company to enter into,
execute or perform this Agreement, other than the filing of a Form D and a
Current Report on Form 8-K, both with the U.S. Securities and Exchange
Commission ("SEC"), which the Company warrants will be filed with the time
required by law.
2.5 SEC Reports and Financial Statements. The Company has
delivered to the Purchaser copies of the following documents filed with the SEC
(collectively, the "SEC Reports"), copies of which are attached hereto as
Exhibits: (i) the Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1999 (Schedule 2.5.1), and (ii) the Company's Quarterly
Report on Form 10-QSB for the quarter ended September 30, 2000 (Schedule 2.5.2).
The information in the SEC Reports, taken as a whole, is true and correct in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2.6 Subsidiaries. Except as set forth in the SEC Reports, the
Company does not own, directly or indirectly, any equity or debt securities of
any corporation, partnership, or other entity.
2.7 Litigation. Except as set forth in the SEC Reports, there are
no suits or proceedings (including without limitation, proceedings by or before
any arbitrator, government commission, board, bureau or other administrative
agency) pending or, to the knowledge of the
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Company, threatened against or affecting the Company or any of its subsidiaries
which, if adversely determined, would have a material adverse effect on the
consolidated financial condition, results of operations, prospects or business
of the Company, and neither the Company nor any of its subsidiaries are subject
to or in default with respect to any order, writ, injunction or decree of any
federal, state, local or other governmental department.
2.8 Taxes. Federal income tax returns and state and local income
tax returns for the Company and its subsidiaries have been filed as required by
law; all taxes as shown on such returns or on any assessment received subsequent
to the filing of such returns have been paid, and there are no pending
assessments or adjustments or any income tax payable for which reserves, which
are reasonably believed by the Company to be adequate for the payment of any
additional taxes that may come due, have not been established. All other taxes
imposed on the Company and its subsidiaries have been paid and any reports or
returns due in connection herewith have been filed.
2.9 Securities Law Compliance. Assuming the accuracy of the
representations and warranties of Purchaser set forth in Section 4 of this
Agreement, the offer, issue, sale and delivery of the shares of Common Stock
will constitute an exempted transaction under the Securities Act of 1933, as
amended and now in effect (the "Securities Act"). The Company shall make such
filings as may be necessary to comply with the Federal securities laws and the
Blue Sky laws of any state, which filings will be made in a timely manner.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
Purchaser hereby represents, warrants and covenants with the
Company as follows:
3.1 Legal Power. Purchaser is a Taiwanese corporation and
Purchaser has the full corporate power and authority to enter into and perform
its obligations under this Agreement and to purchase the Shares of Common Stock
hereunder.
3.2 Validity of Transactions. This Agreement, and each document
to be executed and delivered by the Purchaser in connection with the
transactions contemplated by this Agreement, have been, and will have been as of
the Closing, duly authorized, executed and delivered by the Purchaser and is,
and will each be at the Closing, the valid and legally binding obligation of the
Purchaser, enforceable in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, reorganization and moratorium laws
and other laws affecting enforcement of creditor's rights generally and by
general principles of equity.
3.3 No Violation. The execution, delivery and performance of this
Agreement has been duly authorized by the Purchaser's Board of Directors and, to
the extent necessary, the stockholders of the Purchaser, will not violate any
law or any order of any court or government agency applicable to the Purchaser,
as the case may be, or the corporate charter documents or bylaws of the
Purchaser, and will not result in any breach of or default under, or, except as
expressly provided herein, result in the creation of any encumbrance upon any of
the assets of the Purchaser pursuant to the terms of any agreement or instrument
by which the Purchaser or any of its assets may be bound. No approval of or
filing with any governmental authority is required for the Purchaser to enter
into, execute or perform this Agreement.
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3.4 Receipt and Review of SEC Reports. Purchaser represents that
Purchaser has received and reviewed the SEC Reports and has been given full and
complete access to the Company for the purpose of obtaining such information as
the Purchaser or its qualified representative has reasonably requested in
connection with the decision to purchase shares of the Company's Common Stock.
Purchaser represents that Purchaser has been afforded the opportunity to ask
questions of the officers of the Company regarding its business prospects and
the shares of the Company's Common Stock, all as Purchaser or Purchaser's
qualified representative have found necessary to make an informed investment
decision to purchase the shares of the Company's Common Stock.
3.5 Restricted Securities. Purchaser has been advised that the
Common Stock has not been registered under the Securities Act or any other
applicable securities laws and that the Common Stock is being offered and sold
pursuant to Section 4(2) of the Securities Act and Rule 506 thereunder, and that
the Company's reliance upon Section 4(2) and Rule 506 is predicated in part on
Purchaser's representations as contained herein.
3.5.1 Purchaser is an "accredited investor" as defined
under Rule 501 under the Securities Act.
3.5.2 Purchaser acknowledges that the Common Stock has not
been registered under the Securities Act or the securities laws of any state and
are being offered, and will be sold, pursuant to applicable exemptions from such
registration for nonpublic offerings and will be issued as "restricted
securities" as defined by Rule 144 promulgated pursuant to the Securities Act.
The Common Stock may not be resold in the absence of an effective registration
thereof under the Securities Act and applicable state securities laws unless, in
the opinion of the Company's counsel, an applicable exemption from registration
is available.
3.5.3 Purchaser is acquiring the Common Stock for
Purchaser's own account, for investment purposes only and not with a view to, or
for sale in connection with, a distribution, as that term is used in Section
2(11) of the Securities Act, in a manner which would require registration under
the Securities Act or any state securities laws.
3.5.4 Purchaser understands and acknowledges that the
Common Stock will bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION THEREOF UNDER THE SECURITIES ACT OF 1933
AND/OR THE SECURITIES ACT OF ANY STATE HAVING JURISDICTION
OR AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR
ACTS.
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3.5.5 Purchaser acknowledges that an investment in the
Common Stock is not liquid and is transferable only under limited conditions.
Purchaser acknowledges that such securities must be held indefinitely unless
they are subsequently registered under the Securities Act or an exemption from
such registration is available. Purchaser is aware of the provisions of Rule 144
promulgated under the Securities Act, which permits limited resale of securities
purchased in a private placement subject to the satisfaction of certain
conditions and that such Rule is not now available and, in the future, may not
become available for resale of the Common Stock.
3.6 Purchaser Sophistication and Ability to Bear Risk of Loss.
Purchaser acknowledges that it is able to protect its interests in connection
with the acquisition of the Common Stock and can bear the economic risk of
investment in such securities without producing a material adverse change in
Purchaser's financial condition. Purchaser otherwise has such knowledge and
experience in financial or business matters that Purchaser is capable of
evaluating the merits and risks of the investment in the Common Stock.
3.7 No Purchase by a Group. Purchaser represents, warrants and
covenants that it is not acquiring the Shares of Common Stock as part of a group
within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended;
3.8 13-D Filing. Promptly upon Closing, Purchaser shall cause to
be filed a Form 13-D with the SEC to reflect the acquisition of the Shares.
4. CONDITIONS TO CLOSING.
4.1 Conditions to Obligations of the Purchaser. Purchaser's
obligation to purchase the Shares of Common Stock at Closing is subject to the
fulfillment or waiver, at or prior to such Closing, of all of the following
conditions:
4.1.1 Representations and Warranties True; Performance of
Obligations. The representations and warranties made by the Company in Section 2
hereof shall be true and correct in all material respects at the Closing with
the same force and effect as if they had been made on and as of said date, and
the Company shall have performed all obligations and conditions herein required
to be performed by it on or prior to the Closing.
4.1.2 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby and all documents and instruments incident to such transactions,
including those documents and instruments set forth in Section 1.2, shall be
duly executed and delivered and shall be reasonably satisfactory in substance
and form to the Purchaser.
4.1.3 Qualifications, Legal and Investment. All
authorizations, approvals, or permits, if any, of any governmental authority or
regulatory body of the United States that are required in connection with the
lawful sale and issuance of the shares of Common Stock pursuant to this
Agreement shall have been duly obtained and shall be effective on and as of the
Closing. No stop order or other order enjoining the sale of the shares of the
Company's Common Stock shall have been issued and no proceedings for such
purpose shall be pending or, to the knowledge of the Purchaser, threatened by
the SEC, or any commissioner of corporations
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or similar officer of any state having jurisdiction over this transaction. At
the time of the Closing, the sale and issuance of the shares of Common Stock
shall be legally permitted by all laws and regulations to which the Purchaser
and the Company are subject.
4.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Shares of Common Stock at the Closing is
subject to the fulfillment to the Company's satisfaction, on or prior to the
Closing, of the following conditions:
4.2.1 Representations and Warranties True. The
representations and warranties made by Purchaser in Section 3 hereof shall be
true and correct at the Closing with the same force and effect as if they had
been made on and as of the Closing.
4.2.2 Performance of Obligations. Purchaser shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by them on or before the Closing, Purchaser shall
have delivered payment to the Company in respect of its purchase of Shares of
Common Stock, and Purchaser shall have duly executed and delivered all documents
and instruments in connection with the transactions contemplated hereby,
including those documents and instruments set forth in Section 1.2, in substance
and form reasonably satisfactory to the Purchaser
4.2.3 Qualifications, Legal and Investment. All
authorizations, approvals, or permits, if any, of any governmental authority or
regulatory body of the United States that are required in connection with the
lawful sale and issuance of the Shares of Common Stock pursuant to this
Agreement shall have been duly obtained and shall be effective on and as of the
Closing. No stop order or other order enjoining the sale of the Shares of Common
Stock shall have been issued and no proceedings for such purpose shall be
pending or, to the knowledge of the Company, threatened by the SEC, or any
commissioner of corporations or similar officer of any state having jurisdiction
over this transaction. At the time of the Closing, the sale and issuance of the
Shares of Common Stock shall be legally permitted by all laws and regulations to
which each Purchaser and the Company are subject.
5. MISCELLANEOUS.
5.1 Choice of Law and Construction. This Agreement shall be
construed in accordance with the laws of the State of California applicable to
contracts made and performed in California.. Whenever possible, each provision
of this Agreement shall be interpreted in such manner as to be effective and
valid under such applicable law, but, if any provisions of this Agreement shall
be held to be prohibited or invalid under such applicable law, such provisions
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement. This Agreement has been executed by Pledgor and delivered in
Tustin, California and shall be governed by and interpreted and construed in
accordance with the laws of the State of California. Pledgor expressly agrees
that if there are any disputes or differences between the parties, including,
but not limited to a default hereunder, then the sole and exclusive jurisdiction
and venue for any action or proceeding arising under or pursuant to this
Agreement shall be brought in the United States District Court for the Central
District of California located in Orange County, California
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and Pledgor hereby consents specifically to the jurisdiction of said court for
all purposes hereof including venue and in personam jurisdiction.
5.2 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors, and administrators of
the parties hereto.
5.3 Entire Agreement. This Agreement and the Exhibits hereto and
thereto, and the other documents delivered pursuant hereto and thereto,
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other party in any manner by any representations, warranties, covenants, or
agreements except as specifically set forth herein or therein. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein.
5.4 Separability. In case any provision of this Agreement shall
be invalid, illegal, or unenforceable, it shall to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
5.5 Amendment and Waiver. Except as otherwise provided herein,
any term of this Agreement may be amended, and the observance of any term of
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of time
or indefinitely), with the written consent of the Company and the Purchaser, or,
to the extent such amendment affects only one Purchaser, by the Company and such
individual Purchaser. Any amendment or waiver effected in accordance with this
Section shall be binding upon each future holder of any security purchased under
this Agreement (including securities into which such securities have been
converted) and the Company.
5.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be effective when delivered
personally, or sent by telex or telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or when
received by the addressee, if sent by Express Mail, Federal Express or other
express delivery service (receipt requested) in each case to the appropriate
address set forth below:
If to the Company: AMDL, Inc.
2492 Walnut Avenue
Tustin, California 92780
Attention: Gary L. Dreher, President
If to Purchaser: Chinese Universal Technologies Co., Ltd.
7F-3B1,61 SEC GUN GY1 Road
403 Taichung, Taiwan
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5.7 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth on the Purchase Signature Page hereto.
PURCHASER
CHINESE UNIVERSAL TECHNOLOGIES CO., LTD.
By:
-------------------------------------
Jeanne Lai, President
COMPANY
AMDL, INC.
By:
-------------------------------------
Gary L. Dreher, President
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SCHEDULE 2.5.1
FORM 10-KSB FOR THE YEAR ENDED DECEMBER 31, 1999
(PREVIOUSLY FILED)
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SCHEDULE 2.5.2
FORM 10-QSB FOR THE QUARTER ENDED SEPTEMBER 30, 2000
(PREVIOUSLY FILED)
