AGREEMENT
DATED AS OF FEBRUARY 24, 2005
AMONG
BIOPHAN TECHNOLOGIES, INC.,
aMRIs GMBH,
XX. XXXXXXX XXXXXX
TOMOVATION GMBH
PROF. XX. XXXXXXX XXXXXX
DIPL.-ING. XXXXXX XXXXXXXXX
DIPL._BETRIEBSW. XXXXXXX XXXXXX
Xx. Xxxxxxx Xxxxxx acting as shareholder TomoVation GmbH, as "Geschaftsfuhrer"
of the aMRIs GmbH and TomoVation GmbH,
Prof. Xx. Xxxxxxx Xxxxxx acting as shareholder of the aMRIs GmbH., as
shareholder of the aMRIs Patente GmbH, as shareholder MR COMP GmbH,
TomoVation GmbH acting as shareholder of the aMRIs GmbH, as shareholder for
aMRIs Patente GmbH, as shareholder MR COMP GmbH, as trustor,
Dipl.- Ing. Xxxxxx Xxxxxxxxx acting as shareholder of MR COMP GmbH, as
"Geschaftsfuhrer" of the MR COMP GmbH, as trustee for TomoVation GmbH,
Dipl. - Betriebswirt Xxxxxxx Xxxxxx acting as shareholder of MR COMP GmbH.
AGREEMENT
AGREEMENT (the "Agreement") dated as of the 24th day of February,
2005 by and among Biophan Technologies, Inc., a Nevada corporation (the
"Buyer"), aMRIs GmbH, a company organized under the laws of Germany (the
"Company"), Tomovation GmbH, a company organized under the laws of Germany
("Tomovation"), Prof. Xx. Xxxxxxx Xxxxxx ("Xxxxxx" and collectively with
Tomovation, the "Sellers"), Xx. Xxxxxxx Xxxxxx ("Xxxxxx"), Dipl.-Ing. Xxxxxx
Xxxxxxxxx ("Xxxxxxxxx") and Dipl.-Beriebswirt Xxxxxxx Xxxxxx ("Xxxxxx").
WHEREAS, the Sellers are holders of all of the issued and
outstanding shares of the Company (registered at the Local Court of Dortmund
under no HR B 18740), constituting 100% of the issued share capital of the
Company in the aggregate nominal amount of Twenty-Five Thousand Euros
((euro)25,000), whereby Xxxxxx owns a nominal amount of (euro) 18,450 and
Tomovation owns a nominal amount of (euro) 6,550, each of which is paid in by
50%; and
WHEREAS, the issued, fully paid in and outstanding shares of the MR
COMP ("MRC") (registered at the Local Court of Gelsenkirchen under no HR B 7676)
constituting 100% of the issued share capital of the MR COMP in the aggregate
nominal amount of Twenty-Five Thousand Euros ((euro) 25,000), whereby Xxxxxx
owns a nominal amount of (euro) 7,300, Xxxxxx owns (euro) 2,500 and Xxxxxxxxx
holds (euro) 7,900 in trust for Tomovation and (euro) 7,300 for himself, in
total (euro) 15,200; and
WHEREAS, the Buyer desires to purchase from the Sellers, and the
Sellers desire to sell to the Buyer, shares of the Company representing 51% of
the outstanding shares of the Company (the "Company Shares"), which amounts
(euro) 12,750 all upon the terms and conditions hereinafter set forth; and
WHEREAS, as a condition to the Buyer's purchase of the Company
Shares, Sellers are required to transfer to the Company all of their interest in
MRC in the nominal amount of (euro) 14,600; and
WHEREAS, to induce the Sellers, Xxxxxx and the Company to engage in
the transactions contemplated by this Agreement the Buyer desires to commit to
provide certain funding for the Company after the consummation of the Buyer's
purchase of the Company Shares; and
WHEREAS, the Buyer has paid to the Sellers the amount of Forty
Thousand United States Dollars ($40,000 USD) as a deposit against the purchase
price for the Company Shares (the "Deposit");
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual covenants, agreements, representations, and warranties herein contained,
and other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
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1. Purchase and Sale; Consideration.
1.1. Purchase, Sale and Assignment of the Company Shares. Upon the
terms and provisions of this Agreement, the Buyer agrees to purchase and accept
from the Sellers, and the Sellers agrees to sell, assign, transfer, and deliver
to the Buyer, at the Closing provided for in Section 2 hereof, the Company
Shares, free and clear of all liens, claims, charges, restrictions, equities,
restrictions, rights, options, adverse interests, litigation, or encumbrances of
any kind (collectively, "Liens") together with all rights now and hereafter
attaching or accruing thereto, including the right to dividends attributable to
the Company Shares for all distributions effected after the Closing. Xxxxxx
agrees to sell, assign, transfer, and deliver to the Buyer Company Shares in the
nominal amount of (euro) 8,750, representing thirty-five percent (35%) of the
issued and outstanding shares of the Company, and Tomovation agrees to sell,
assign, transfer, and deliver to the Buyer Company Shares in the nominal amount
of (euro) 4,000, representing sixteen percent (16%) of the issued and
outstanding shares of the Company. As Xxxxxx and Tomovation paid in 50% of the
subscribed capital only, they are still liable against the Company to pay in the
difference in the amount of (euro) 12,500.
1.2. Purchase Price. The aggregate purchase price for the Company
Shares will be Two Hundred Forty Thousand United States Dollars (US $240,000)
(the "Purchase Price"). The Purchase Price will be paid by the Buyer to the
Sellers US $164,706 to Xxxxxx and US $75,294 to Tomovation as follows:
(a) At the Closing, the Deposit shall be applied as a credit
to the Purchase Price, US $27,451 to Xxxxxx and US $12,549 to Tomovation.
(Notwithstanding and for the avoidance of doubt, the Deposit shall be
non-refundable unless a court of competent jurisdiction issues a
non-appealable judgment holding that the Closing under this Agreement did
not occur solely because Sellers or Freibe breached their obligations
under this Agreement, and even if refundable under the foregoing
circumstances, it shall in such event only be refundable to the extent not
applied by Sellers or Freibe or the Company as contemplated by the last
sentence of Section 11.6.)
(b) The balance of the Purchase Price in the amount of Two
Hundred Thousand United States Dollars (US $200,000) shall be paid by the
delivery of a Note and Pledge Agreement substantially in the form attached
hereto as Exhibit A (the "Note and Pledge Agreement") obligating the Buyer
to pay the Sellers such amount, which obligation is secured by a pledge by
the Buyer to the Sellers of Company Shares in the nominal amount of (euro)
750 for Xx. Xxxxxx and (euro) 400 for Tomovation.
1.3. MRC Shares. To induce the Buyer to purchase the Company Shares
as contemplated by this Agreement, (i) each Seller hereby agrees to sell,
assign, transfer, and deliver to the Company, prior to the Closing and for no
consideration other than Ten Euros ((euro)10), all of the stock of MRC held by
such Seller, whereby Xxxxxx sells and transfers shares in the nominal amount of
(euro) 7,300 and Tomovation sells and transfers shares in the nominal amount of
(euro) 7,300(collectively, the "MRC Shares"), in each case free and clear of all
Liens together with all rights now and hereafter attaching or accruing thereto,
including the right to dividends attributable to the MRC Shares for all
distributions effected after the Closing, and (ii) the Company hereby agrees to
accept such sale, assignment, transfer and delivery. The shares in the nominal
amount of (euro) 7,300 to be sold and transferred by Tomovation to the Company
are held in trust by Xxxxxxxxx. Xxxxxxxxx, Xxxxxx and Xxxxxx collectively
consent to the transfer of these shares directly from Xxxxxxxxx to the Company.
For all purposes of this Agreement and for any tax reporting purposes, the
aggregate value of the MRC Shares is agreed by all parties to be US $100,000.00.
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1.4 Capital Contributions.
(a) To induce the Sellers to sell and transfer the Company
Shares to the Buyer and to sell and transfer the MRC Shares to the
Company, the Buyer hereby covenants and agrees to, unconditionally except
as otherwise provided in paragraph (e) below, make additional capital
contributions into the capital reserves (the "Capital Contributions") to
the Company without receiving additional equity in the Company upon the
terms and subject to the limitations in this Section 1.4.
(b) The aggregate amount of the Capital Contributions shall be
Two Million United States Dollars (US $2,000,000). Unless otherwise agreed
by the Buyer and the Sellers but subject to the provisions of this
paragraph (b), the Capital Contributions shall be contributed during the
four years following the Closing at a rate of Five Hundred Thousand United
States Dollars (US $500,000) per year based on the Buyer's fiscal year.
The Capital Contributions for the Buyer's fiscal year ending February 28,
2006 shall be paid in four installments of Xxx Xxxxxxx Xxxxxx-Xxxx
Xxxxxxxx Xxxxxx Xxxxxx Dollars payable at the later of the Closing or
March 1, 2005, on June 1, 2005, on September 1, 2005 and on December 1,
2005. For subsequent fiscal years, the Company shall set forth in its
business plan a budget of its requirements with respect to the Capital
Contributions (the "Budget") and the Capital Contributions shall be made
in accordance with such Budget; provided, however, that if the Company
shall fail to approve a business plan containing such requirements, the
Capital Contributions for such year shall be paid on a quarterly basis.
Unless otherwise agreed by the Buyer, the Buyer shall not be obligated to
make Capital Contributions in any fiscal year greater than an amount equal
to (i) Five Hundred Thousand United States Dollars (US $500,000), minus
(ii) the amount, if any, by which the cash of the Company as of the end of
the most recently ended fiscal year of the Company exceeded Fifty Thousand
United States Dollars (US $50,000) (such excess, the "Excess Funding"). If
Capital Contributions aggregating Two Million United States Dollars (US
$2,000,000) have not been made by the end of the fourth fiscal year
following the Closing, Capital Contributions shall continue to be made in
subsequent fiscal years in accordance with this paragraph (b) until
aggregate Capital Contributions in such amount have been made, except as
otherwise provided in paragraph (e) below.
(c) Except with the prior written consent of the Buyer, the
Capital Contributions shall be used exclusively to pay the costs and/or
expenses for salaries of the Company's Chief Executive Officer, Chief
Technology Officer, two engineers, two scientists, one and one-half office
staff, consultants, office leasing and other office expenses, travel
expenses, materials, a magnetic resonance imaging unit, research program
fees, including, without limitation, animal trials, and, based upon the
achievement of certain research and development milestones, certain other
designated expenses as agreed to by Buyer and the Sellers or included in
the applicable Budget. The provisions of this paragraph (c) shall in no
manner alter the obligation of Buyer to make the Capital Contributions.
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(d) The obligations of Buyer to make the Capital Contributions
will be secured by a pledge by the Buyer to the Sellers of Company Shares
in the nominal amount of (euro) 7,600 for Xxxxxx and (euro) 3,800 for
Tomovation pursuant to a stock pledge agreement substantially in the form
attached hereto as Exhibit B (the "Capital Pledge Agreement"). Pursuant to
the terms of the Capital Pledge Agreement, as Capital Contributions are
made by the Buyer the number of Company Shares subject to the Capital
Pledge Agreement shall be reduced by three (3) shares for each US $26,300
of Capital Contributions actually made by the Buyer. Of the shares
released, two-thirds shall be released from the Company Shares pledged to
Xxxxxx and one-third shall be released from the Company Shares pledged to
Tomovation.
(e) The Buyer may, at any time, suspend its obligation to make
any further Capital Contributions by giving written notice to the Company
and the Sellers that it is suspending such obligation. The Sellers, acting
together, may suspend the Buyer's obligation to make any further Capital
Contributions if Buyer has not made any Capital Contribution within sixty
(60) days after the date on which such Capital Contribution is due. If the
Buyer's obligation to make future Capital Contributions is suspended,
whether by Buyer or Sellers and regardless of the reason therefore,. then
(i) the Buyer's obligation to make any additional Capital Contributions
under this Section 1.4 shall be automatically extinguished without any
further action by the Buyer, the Sellers or the Company, (ii) the Buyer
shall not be entitled to any refund of any Capital Contributions made
prior to such suspension, (iii) the Sellers shall be entitled to recover
any Company Shares then subject to the Capital Pledge Agreement after
taking into account all Company Shares released from the Capital Pledge
Agreement based on Capital Contributions that have theretofore been made,
(iv) the Buyer shall assign to the Company the License Agreement of even
date herewith between the Buyer and aMRIs Patent GmbH, subject to any
sublicenses theretofore granted under such License Agreement by the Buyer,
and (vi) the Buyer shall pay each of Tomovation and Xxxxxx a one-time
payment of Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (US $100,000) within
14 days of such suspension. The Buyer's failure to make any Capital
Contribution or any suspension of the Buyer's obligation to make future
Capital Contributions shall not constitute a default under this Agreement
or the Capital Pledge Agreement for any reason, and the sole recourse of
any party to this Agreement for any such failure by the Buyer to make any
Capital Contributions or upon any such suspension shall be the rights
granted under clauses (iii), (iv) and (v) of this paragraph (e). Without
limiting the generality of the foregoing, under no circumstances will the
Company have the right to collect any unmade Capital Contributions from
the Buyer. Buyer shall be responsible and pay Sellers on demand for all
costs and expenses incurred by Sellers in enforcing their rights under
this paragraph (e) following suspension of Buyer's Capital Contribution
obligation under this paragraph (e). Sellers shall be entitled to specific
performance of the provisions of this paragraph (e) following such
suspension. Buyer shall pay interest on any amounts due Sellers under this
paragraph (e) not paid when due at the rate equal to the rate announced by
Citibank, N.A. from time to time to be its prime rate plus two percent
(2%) per annum from the due date thereof until paid.
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(f) The Sellers may not suspend the Buyer's obligation to make
any further Capital Contributions because the Buyer has not made any
Capital Contribution with respect to which it is exercising its rights
under Section 10.3 hereof.
(g) Sellers and the Buyer acknowledge and agree that Buyer
will be entitled to treat all Capital Contributions as additional purchase
price for the Company Shares.
2. Closing and Transfer Agreement.
2.1. Closing. The closing of the purchase and sale of the Company
Shares (the "Closing") shall take place February 24, 2005. The date and time at
which the Closing actually occurs are referred to herein as the "Closing Date."
2.2. Transfer Agreement. At the Closing (i) the shareholders of MRC
(Xxxxxxxxx, Xxxxxx) and the Company and (ii) the Sellers and the Buyer shall
enter into one notarized transfer agreement in a customary form under German law
pursuant to which the MR Shares are transferred to the Company and the Company
Shares are transferred to the Buyer (the "Transfer Agreement") and to which this
Agreement and its attachments are attached.
2.3. Articles of Association. At the Closing, the parties hereto
shall take any and all actions necessary to cause the Articles of Association in
the Form of Exhibit C hereto to become effective with respect to the Company.
3. Documents To Be Delivered at the Closing.
3.1. Documents To Be Delivered by the Buyer. At the Closing, the
Buyer shall deliver to the Sellers the following (the "Buyer Deliverables"):
(a) the Note and Pledge Agreement duly executed by the Buyer;
(b) the Capital Pledge Agreement duly executed by the Buyer;
(c) the License Agreement and the documents, instruments and
other consideration to be delivered by Buyer at Closing in connection
therewith;
(d) approval by Buyer as a shareholder of the Company of the
Xxxxxx Employment Agreement and the Xxxxxx Employment Agreement (each as
defined in Section 3.2);
(e) copies of action of the Board of Directors of Buyer
electing Xxxxxx and Xxxxxx to the Board of Directors of Buyer as of the
Closing and to nominate Xxxxxx and Xxxxxx for reelection as directors
annually during the terms of their respective Employment Agreements; and
(f) such other instruments, documents or certificates as are
reasonably requested by the Sellers in order to certify the Buyer's
compliance with the conditions set forth in Sections 8.1 and 8.2 hereof.
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3.2. Documents To Be Delivered by the Sellers, Tomovation or Xxxxxx.
At the Closing, Sellers, Tomovation or Xxxxxx, as the case may be, shall deliver
to the Buyer the following (the "Seller Deliverables"):
(a) an employment agreement duly executed by the Company and
Xxxxxx substantially in the form attached hereto as Exhibit D (the "Xxxxxx
Employment Agreement");
(b) an employment agreement duly executed by the Company and
Xxxxxx substantially in the form attached hereto as Exhibit E (the "Xxxxxx
Employment Agreement");
(c) the Note and Pledge Agreement duly executed by the
Sellers;
(d) the Capital Pledge Agreement duly executed by the Sellers;
(e) evidence of the transfer to the Company of all of Sellers'
interest in MRC;
(f) a release duly executed by each Seller and Xxxxxx in favor
of the Company and MRC releasing the Company and MRC from any and all
obligations owed to such Seller or Xxxxxx other than those obligations
under the Xxxxxx Employment Agreement, the Xxxxxx Employment Agreement or
the Shareholders Agreement;
(g) the License Agreement and the documents, instruments and
other consideration to be delivered by Sellers or Freibe at Closing in
connection therewith; and
(h) such other instruments, documents or certificates
reasonably requested by the Buyer in order to certify the Sellers'
compliance with the conditions set forth in Sections 9.1 and 9.2 hereof.
4. Representations and Warranties by the Sellers and Xxxxxx. The
Sellers and Fribe have delivered to the Buyer a disclosure schedule (the
"Sellers Disclosure Schedule") which is divided into schedules which are
numbered to correspond to sections of this Agreement. Notwithstanding anything
to the contrary contained in this Agreement, any matter which is disclosed in
any particular schedule of the Sellers Disclosure Schedule, or Exhibits thereto,
relating to this Article 4 shall be deemed to be disclosed in respect of all
sections of this Article 4 to which such disclosure is apparent on its face and
to qualify those representations and warranties of the Sellers and Xxxxxx
contained in this Agreement to which its relevance is apparent on its face. For
purposes of this Section 4, knowledge of either of the Companies shall mean the
actual knowledge solely of Xxxxxx or Sellers, and the actual knowledge of
Sellers shall mean the actual knowledge solely of Xxxxxx and Xxxxxx. Subject to
the qualifications, exclusions, limitations and disclosures set forth in the
Sellers Disclosure Schedule in regard to this Article 4, each of the Sellers and
Xxxxxx represent and warrant jointly and severally to the Buyer that, as of the
date of this Agreement and as of the Closing Date:
4.1. Organization. Tomovation and each of the Company and MRC
(collectively, the "Companies") are corporations with limited liability
(Gesellschaft mit beschrankter Haftung) duly incorporated and validly existing
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under the laws of the Federal Republic of Germany, and each has all requisite
corporate right, power and authority to own or lease and to operate its
properties and to carry on its business as now being conducted. The Sellers have
delivered to the Buyer a complete and correct copy of the Articles of
Incorporation, and all amendments thereto, of each of the Companies. Each of the
Companies is qualified or licensed to do business as a foreign corporation in
each jurisdiction where the failure to be so qualified would have a material
adverse effect on such Company or its business.
4.2. Authority. The Sellers, the Company and Xxxxxxxxx each has the
power and authority to execute and deliver this Agreement and the other
documents contemplated by this Agreement (the "Transaction Documents") and to
carry out its obligations hereunder and thereunder. No consent to the Sellers
pursuant to Section 1365 German Civil Code is required. The execution, delivery,
and performance of this Agreement and each such Transaction Document and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Company, Tomovation and their respective shareholders, and no
other proceeding, authorization or approval on the part of the Companies or the
Sellers or Xxxxxxxxx is necessary to authorize the execution and delivery of
this Agreement or any such Transaction Document or the performance by the
Sellers or the Company or Schaeferss of any of the transactions contemplated
hereby or thereby in accordance with their respective terms. This Agreement has
been duly executed and delivered by or on behalf of the Sellers, the Company,
Xxxxxxxxx and Xxxxxx and is a legal, valid, and binding obligation of the
Sellers, the Company, Xxxxxxxxx and Xxxxxx (collectively, the "Seller Parties")
enforceable against the Seller Parties in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, fraudulent conveyance and other
similar laws of general application affecting the rights of creditors and
applicable laws, regulations and principles of equity which may restrict the
enforcement of certain equitable remedies generally. When the Transaction
Documents are executed and delivered by all required parties thereto at the
Closing, such Transaction Documents will be a legal, valid, and binding
obligation of the Seller Parties enforceable against the Seller Parties in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance and other similar laws of general
application affecting the rights of creditors and applicable laws, regulations
and principles of equity which may restrict the enforcement of certain equitable
remedies.
4.3. Approvals. No consent, approval, order, or authorization of, or
registration, declaration, or filing with, any governmental authority is
required in connection with the execution and delivery of this Agreement and the
Transaction Documents by the Seller Parties, or the consummation of the
transactions contemplated hereby or thereby. Except as set forth in Schedule 4.3
hereto, no consent of any third party is necessary to permit the consummation of
the transactions contemplated hereby or thereby, or to continue all leases,
licenses and other contracts and instruments and other rights of the Companies,
and no third party is entitled to terminate, accelerate or otherwise modify any
rights or obligations of the Companies as a result the transactions contemplated
hereby or thereby.
4.4. Non-Contravention. The execution and delivery of this Agreement
and the Transaction Documents and the consummation of the transactions
contemplated hereby and thereby will not (a) violate any provision of the
Articles of Incorporation of either of the Companies or Tomovation; (b) violate
any provision of, or result in the breach or the acceleration of, or entitle any
party to accelerate (whether after the giving of notice or lapse of time or
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both), any obligation under, any mortgage, lien, lease, agreement, license,
instrument, order, arbitration award, judgment, or decree to which either of the
Companies or any Seller Party is a party or by which the property of either of
the Companies or any Seller Party is bound; (c) result in the creation or
imposition of any Lien upon any property of either of the Companies or any
Seller Party; or (d) violate or conflict with any other restriction or any law,
ordinance, or rule to which any of the Companies or any Seller Party or any
property of either of the Companies or any of the Seller Parties is subject.
4.5. Capital Stock.
(a) The Company's authorized share capital consists of shares
in the aggregate nominal amount of Twenty Five Thousand Euros
((euro)25,000) which are the only issued shares of the Company. Xxxxxx
owns a nominal amount of (euro) 18,450 and Tomovation owns a nominal
amount of (euro) 6,550 of the shares. The Company Shares to be sold
represent in total 51% of which Xxxxxx will transfer (euro) 8,750 and
Tomovation (euro) 4,000 of the issued shares of the Company. MRC's
authorized share capital consists of shares in the aggregate nominal
amount of Twenty Five Thousand Euros ((euro)25,000) which are the only
issued shares of MRC. Xxxxxxxx owns a nominal amount of (euro) 15,200
(whereof a nominal amount of (euro) 7,300 is held in trust for
Tomovation), Xxxxxx owns a nominal amount of (euro) 7,300 and Xxxxxx owns
a nominal amount of (euro) 2,500. The MRC Shares to be sold represent
58.4% equal to a nominal amount of (euro) 14,600 of the issued shares of
MRC.
(b) All subscriptions to the shares of stock of the Company
and MRC (collectively, "Outstanding Shares") have been paid in full,
except that one-half of the share capital of the Company in the amount of
Twelve Thousand Five Hundred Euros ((euro)12,500) has not been paid in. To
the Company the Sellers declare that the nominal capital is paid in by 50%
and not repaid according to para. 30 GmbHG. To MRC Xxxxxxxxx, Xxxxxx and
Xxxxxx declare that the nominal share capital is fully paid in. To the
Companies the Seller Parties declare that no disguised capital
contribution in kind has been made.
(c) There are no outstanding subscriptions, options,
conversion rights, warrants, or other agreements or commitments of any
nature whatsoever (either firm or conditional) obligating any Seller Party
or MRC to issue, deliver, sell, or cause to be issued, delivered, or sold,
any Outstanding Shares or any additional shares or other equity interests
in the Company or MRC, as the case may be, or obligating any Seller Party
or MRC to grant, extend, or enter into any such agreement or commitment.
(d) Except for the Trust Agreement between Xxxxxxxx and
Tomovation regarding the MRC shares, there are no rights of first refusal,
pre-emptive rights, or other similar agreements obligating any Seller
Party or MRC to offer the Company Shares, the MRC Shares or any other
shares of the Company's or MRC's share capital to any person, and none of
the Company Shares or MRC Shares were issued in violation of any
pre-emptive or similar rights. There are no dividends due to be paid and
in arrears with respect to any of the share capital of the Company or MRC.
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4.6. Ownership; Transfer of the Company Shares and MRC Shares. The
Company Shares and MRC Shares are duly authorized, validly issued, fully paid,
and non-assessable except for any obligations with respect to the non paid
Capital. The Sellers own the Company Shares and MRC Shares free and clear of all
Liens. The Sellers have the right, power, and authority to sell the Company
Shares as provided herein and to transfer the MRC Shares as provided herein, and
upon such sale and transfer, the Buyer will receive good and valid title to the
Company Shares and the Company will receive good and valid title to the MRC
Shares, in each case subject to no Liens.
4.7. Subsidiaries. The Company does not own and has never owned any
capital stock or other equity interest in any entity.
4.8. Contracts.
(a) Schedule 4.8 contains a complete and correct list of all
written or oral agreements, contracts, and commitments of every type to
which either Company is a party or by which either of the Companies or any
of their assets is bound (the "Contracts") other than oral Contracts for
employment.
(b) The Buyer has been given access to complete and correct
copies of all Contracts, together with all amendments and side letters
thereto. The Contracts are in full force and effect, and all parties to
the Contracts have performed all obligations required to be performed by
them under the Contracts through the date hereof, and the Company is not,
and, to the actual knowledge of Xxxxxx and Sellers, no other party is, in
default thereunder. To the actual knowledge of Xxxxxx and Sellers, the
parties to the Contracts other than the Company have performed all
obligations required to be performed by them under the Contracts through
the date hereof, and such other parties are in default thereunder where
the nature of such default would reasonably be expected to have a material
adverse effect on the Company or its business.
(c) No agreement, contract, or commitment to which any Company
is a party or by which it or any of its assets is bound purports to limit
its freedom to compete in any line of business or with any person or
entity. Except as set forth in Schedule 4.8, neither Company has granted
any outstanding power of attorney to any person or entity.
4.9. Company Operations. The Company was formed on November 4, 2004
and since that date has had no operations other than entering into and
performing its obligations under the Contracts and preparing for the
consummation of the transactions contemplated by this Agreement and the
Transaction Documents. MRC was formed on February 19, 2004 and since that date
has had no operations other than those described on Schedule 4.9.
4.10. Tax Returns, Taxes. The Companies have filed with the
appropriate governmental agencies all tax returns and reports, including but not
limited to reports of income taxes, withholding and employment taxes, sales and
use taxes, property, payroll, ad valorem, value added and other taxes,
assessments, fees, levies, social security payments or governmental charges
(collectively, "Taxes"), required to be filed in connection with or affecting
the Companies or the operation of the Companies and their businesses and have
paid the Taxes shown on their returns or otherwise assessed, levied and due and
payable by either of the Companies, including related penalties and/or interest,
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to the extent that such Taxes, penalties and/or interest have become due. To the
actual knowledge of either Company, either Seller or Xxxxxx, there is no basis
for a claim by the appropriate governmental agency which would result in the
assertion of any deficiency for any tax or interest, improper filing or
penalties. Except to the extent specifically set forth on Schedule 4.10, no
taxing authority or agency is now asserting or, to the actual knowledge of
either Company, either Seller or Xxxxxx, is threatening to assert, against
either of the Companies any deficiency or claim for additional Taxes or interest
thereon or improper filing penalties. Neither of the Companies has been granted
any waiver of any statute of limitation with respect to, or been granted any
extension of a period for the assessment of, any Tax.
4.11. Title to and Condition of the Assets of the Company.
(a) Each of the Companies has good title to all assets owned
by it, free and clear of all Liens (other than (i) any Intellectual
Property, as defined in Section 4.15(a) that does not constitute Company
IP Rights, as defined in Section 4.15(a), and (ii) leases which have been
listed on Schedule 4.11). To the actual knowledge of the Companies, the
Sellers or Xxxxxx, neither of the Companies nor any property or asset
owned or leased by it is in violation of any applicable ordinance,
regulation, or building, zoning, environmental or other law in respect
thereof, the violation of which will have a material adverse effect on the
financial condition, the conduct of the business or the ownership or use
of any of the properties or assets of such party.
(b) Neither of the Companies own any real estate. Neither of
the Companies leases any real estate other than real estate covered by
leases which have been listed on Schedule 4.11. Neither of the Companies
has received any written notice from any governmental agency, board,
bureau, body, department, or authority of any German or foreign
jurisdiction, which materially restricts the use of any of the leased real
estate. Each lease pursuant to which either of the Companies leases any
real or personal property is in full force and effect and is valid and
enforceable in accordance with its terms. To the actual knowledge of the
Companies, the Sellers or Xxxxxx, there is no event or circumstance that
with notice or lapse of time or both would constitute a default by any
party to a lease agreement.
4.12. Litigation.
(a) There are no actions, suits, proceedings, investigations,
or inquiries pending or, to either Company's, either Seller's or Xxxxxx'x
actual knowledge, threatened against or affecting the business,
operations, financial condition, or [prospects] of either of the Companies
in any court or before any German or other governmental department,
commission, board, bureau or agency.
(b) Neither of the Companies is in default in respect of any
judgment, order, writ, injunction, or decree of any court or any German or
other governmental department, commission, board, bureau or agency.
(c) There are no actions, suits, proceedings, investigations,
or inquiries pending or, to either Company's, either Seller's or Xxxxxx'x
actual knowledge, threatened against either of the Companies or any Seller
-11-
Party in any court or before any German or other governmental department,
commission, board, bureau or agency that reasonably could be expected to
have an adverse effect on any Seller Party's right or ability to execute
and deliver this Agreement or the Transaction Documents to which such
Seller Party is a party or to consummate the transactions contemplated
hereby or thereby.
4.13. Employee Matters.
(a) Neither of the Companies is in material violation of any
law dealing with employment matters where the failure to be in compliance
would have a material adverse effect on it or its business. Neither of the
Companies is liable for any unpaid wages, vacation pay, bonuses,
commissions or social insurance contributions, or for any material tax,
penalty, assessment, or forfeiture for failure to comply with any
employer/employee matter. Neither of the Companies has a works council.
There are no strikes, lockouts, work stoppages, slowdowns, jurisdictional
disputes, grievances, arbitrations, or organizing activities occurring or
threatened with respect to either of the Companies. Neither of the
Companies is a party to any collective bargaining agreement.
(b) Neither of the Companies maintains or makes any
contributions to, and has not been obligated by law or agreement to
establish, maintain, sponsor, or make any contributions to (i) any
employee pension or welfare benefit plan; (ii) any formal or informal
severance plan or arrangement; or (iii) any other deferred compensation,
bonus, stock option, stock purchase, revenue sharing, retirement
insurance, or other employee benefit plan, agreement, fund, or
arrangement, whether or not set forth in writing, providing benefits of
economic value to any employee, former employee, or present or former
beneficiary, dependent, or assignee other than regular salary, wages, or
commissions paid substantially concurrently with the performance of the
services for which paid.
4.14. Insurance. The Companies maintain insurance against risks for
the respective businesses in which they are engaged. All of the Companies'
insurance policies covering such risks are in full force and effect, all
premiums due thereon have been paid, and the Companies have complied in all
material respects with the provisions of such policies.
4.15. Intellectual Property.
(a) As used herein, the term "Intellectual Property" means,
collectively, all worldwide industrial and intellectual property rights,
including, without limitation, patents and patent applications and patent
rights related thereto, including without limitation continuations,
continuations-in-part, divisions, reissues, re-examinations, renewals, and
extensions related thereto; trademarks, trade dress rights, trade names,
service marks; Internet domain names, Internet and World Wide Web URLs or
addresses; copyrights and other works of authorship; mask work rights;
domestic and foreign registrations and applications for registration for
any of the foregoing; franchises; licenses; inventions; trade secrets and
know-how; customer lists, supplier lists, proprietary processes and
formulae; software source code and object code, algorithms, net lists,
architectures, structures, screen displays, layouts, manuals, programmers'
notes, and development tools; designs, blueprints, specifications,
technical drawings (or similar information in electronic format); and all
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documentation, records, and media constituting, describing or relating to
any of the foregoing. The Companies own, or have the valid right or
license to use, possess, sell or license, all Intellectual Property
necessary or required for the Companies to conduct their present
respective businesses as currently conducted (such necessary or required
Intellectual Property, excluding any Intellectual Property licensed
pursuant to the License Agreement between the Company and aMRIs Patent
GmbH dated November 17, 2004, being hereinafter collectively referred to
as the "Company IP Rights").
(b) Neither the execution, delivery and performance of this
Agreement and the Transaction Documents, nor the consummation of any of
the transactions contemplated hereby and/or thereby: (i) constitute a
breach of or default under any instrument, contract, license or other
agreement governing any Company IP Right to which either of the Companies
is a party (collectively, the "Company IP Rights Agreements"); (ii) cause
the forfeiture or termination of, or give rise to a right of forfeiture or
termination of, any Company IP Right; or (iii) adversely affect the right
of either of the Companies to use, possess, sell or license any Company IP
Right or portion thereof. There are no royalties, honoraria, fees or other
payments that are payable by either of the Companies to any third person
by reason of the ownership, use, possession, license, sale, marketing,
advertising or disposition of any Company IP Rights by either of the
Companies.
(c) None of the Company IP Rights violates any license or
agreement between either of the Companies and any third party or, to the
knowledge of Sellers or Xxxxxx, infringes or misappropriates any
Intellectual Property of any other party. No claim, suit or litigation is
pending or, to the actual knowledge of the Sellers and Xxxxxx, threatened,
against either of the Companies, Xxxxxx, either Seller, or any Company IP
Right that contests the validity, ownership or right of either of the
Companies to use, possess, sell, market, advertise, license or dispose of
any Company IP Right or asserts that either of the Companies has infringed
or is infringing any Intellectual Property of any third party, nor, to the
knowledge of the Sellers and Xxxxxx is there any valid basis for any such
claim, suit or litigation. Neither of the Companies has received any
notice asserting that any Company IP Right or the proposed use, sale,
license or disposition thereof by either of the Companies conflicts or
will conflict with or infringe the rights of any other party.
(d) To the actual knowledge of the Sellers and Xxxxxx, no
employee, consultant or independent contractor of either of the Companies:
(i) is in violation of any term or covenant of any employment contract,
patent disclosure agreement, invention assignment agreement,
non-disclosure agreement, noncompetition agreement or any other contract
or agreement with any other party or using trade secrets or proprietary
information of others, in each case by virtue of such employee's,
consultant's, or independent contractor's being employed by, or performing
services for, either of the Companies; (ii) has developed any technology,
software or other copyrightable, patentable, or otherwise proprietary work
for either of the Companies that is subject to any agreement under which
such employee, consultant or independent contractor has assigned or
otherwise granted to any party other than either of the Companies any
rights in or to such technology, software or other copyrightable,
patentable or otherwise proprietary work or in any Intellectual Property
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related thereto; or (iii) is or will be owed any amount, pursuant to law
or otherwise other than for wages, for the development or assignment of
any Company IP Right. To the actual knowledge of the Sellers and Xxxxxx,
the employment of any employee of either of the Companies or the use by
either of the Companies of the services of any consultant or independent
contractor does not subject either of the Companies to any liability to
any third party other than such employee, consultant or independent
contractor.
(e) The Companies have taken reasonable steps to protect,
preserve and maintain the secrecy and confidentiality of their respective
Company IP Rights and all their ownership interests and proprietary rights
therein. All officers, employees and consultants of the Companies having
access to proprietary information of either of the Companies, their
consultants or business partners, have executed and delivered to Company
and/or MRC, as the case may be, an agreement regarding the protection of
such proprietary information; and copies of the form of all such
agreements have been delivered to the Buyer. The Companies have secured
valid assignments or have obtained licenses (either through agreements or
by operation of law) from all consultants, contractors and employees who
were involved in, or who contributed to, the creation or development of
any Company IP Rights, of the rights to such contributions that may be
owned by such persons or that the Companies do not already own by
operation of law. To the actual knowledge of the Sellers and Xxxxxx, no
current or former employee, officer, director, consultant or independent
contractor of either of the Companies has any right, license, claim or
interest whatsoever in or with respect to any Company IP Rights, other
than moral rights or other rights that cannot legally be assigned
(collectively, "Restricted IP Rights"), and, with respect to such
Restricted IP Rights, the Companies have obtained such licenses, releases
and waivers with respect to such Restricted IP Rights as are necessary to
enable Company and/or MRC, as the case may be, to utilize such Restricted
IP Rights as they are currently used in the business of either of the
Companies without infringement or violation of such Restricted IP Rights.
The Restricted IP Rights are described in Schedule 4.15(e).
(f) Schedule 4.15(f) contains a complete list of (i) all
worldwide registrations with respect to any patents, copyrights, mask
works, trademarks, service marks, Internet domain names or Internet or
World Wide Web URLs constituting Company IP Rights; and (ii) all
applications, registrations, filings and other formal actions made or
taken pursuant to federal, state and foreign laws by either of the
Companies to secure, perfect or protect its or his interest in any Company
IP Rights, including, without limitation, all patent applications,
copyright applications, and applications for registration of trademarks
and service marks. All filings and payments required to maintain such
registered or issued patents, trademarks, service marks, Internet domain
names, Internet or World Wide Web URLs in effect have been made on a
timely basis. All issued patents constituting Company IP Rights are valid
and not infringed.
(g) Except as set forth on Schedule 4.15(g), neither of the
Companies has entered into or committed to enter into any license,
sublicense or other agreement pursuant to which any person or entity is
authorized to use any Company IP Rights. Except for the Company IP Rights
under licenses of software that is generally available to the public on
standard license terms at a per copy license fee of less than $500 per
copy or that is generally available at retail stores, to the actual
knowledge of the Sellers and Xxxxxx the Companies own their respective
Company IP Rights free and clear of all Liens.
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(h) To the actual knowledge of the Sellers and Xxxxxx, there
is no unauthorized use, disclosure, infringement or misappropriation of
any Company IP Rights or any Intellectual Property of either of the
Companies by any third party, including any employee or former employee of
either of the Companies. Neither of the Companies has agreed, pursuant to
any written agreement, to indemnify any person for any infringement of any
Intellectual Property of any third party by any product or service that
has been sold, licensed, leased, supplied, marketed, distributed, or
provided by either of the Companies.
4.16. Compliance with Laws, etc. The Companies have complied in all
material respect with and are in material compliance with all German and foreign
statutes, laws, ordinances, regulations, rules, permits, judgments, orders, or
decrees applicable to them or any of their properties, assets, operations, and
business, and there does not exist any basis for any material claim of default
under or violation of any such statute, law, ordinance, regulation, rule,
permit, judgment, order, or decree, where the failure to be in compliance or
where the claim of default would have a material adverse effect on either of the
Companies or its business.
4.17. No Liabilities. Except for the Contracts and accounts payable
incurred in the ordinary course of business neither of the Companies has
incurred any material liability or obligation (absolute, accrued, contingent, or
otherwise) of any nature.
4.18. Environmental Matters. The Companies are now and have been at
all times in full compliance with any and all applicable laws and regulations
pertaining to the regulation and protection of the environment and the health
and safety of the public other than such instances of non-compliance which would
not reasonably be anticipated to have a material adverse effect on either of the
Companies or their respective business.
4.19. Governmental Authorizations and Regulations. All licenses,
franchises, permits, and other governmental authorizations held by either of the
Companies or necessary are material to the conduct of its business are valid,
and neither of the Companies has received any notice that any governmental
authority intends to cancel, terminate, or not renew any such license,
franchise, permit, or other governmental authorization.
4.20. Accounting Practices. The Companies make and keep accurate
books and records reflecting their total asset value and maintains internal
accounting controls that provide reasonable assurance that (a) transactions are
executed with management's authorization and (b) transactions are recorded as
necessary to permit preparation of the Companies' financial statements and to
maintain accountability for the assets of the Companies.
4.21. No Commission Payment. Neither of the Companies nor the
Sellers, or any directors, officers, employees, agents, consultants or any other
persons or entities acting on their behalf, have made, offered or provided any
gift, entertainment, payment, loan or other consideration for the purpose of
influencing the procurement of any favorable action by any government authority,
regulator or office, or any official or employee thereof, in any way relating to
the business of either of the Companies.
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4.22. No Brokers. All negotiations relating to this Agreement and
the Transaction Documents, and the transactions contemplated hereby and thereby,
have been carried on by the Companies and the Seller Parties without the
intervention of any person or firm in such manner as to give rise to any valid
claim against the Buyer or the Companies for a brokerage commission, finder's
fee or similar compensation.
4.23. Disclosure. No representation or warranty made by the Sellers
and Xxxxxx in this Agreement or in the certificates, documents or other
instruments delivered pursuant to this Agreement contains any untrue statement
of a material fact, or omits to state a material fact necessary to make the
statements or facts contained herein or therein, in light of the circumstances
under which they were made, not misleading, except as the accuracy or
completeness thereof may be affected by this Agreement, the Transaction
Documents and the transactions contemplated hereby and thereby.
5. Representations and Warranties of the Buyer to the Seller. The
Buyer represents and warrants to the Sellers that, as of the Closing Date:
5.1. Organization. The Buyer is a corporation duly organized and
validly existing under the laws of the State of Delaware, and has all requisite
corporate power and authority to own or lease and to operate its properties and
to carry on its business as now being conducted.
5.2. Authority for Agreements. The Buyer has the power and authority
to execute this Agreement and the Transaction Documents and to carry out its
obligations hereunder and thereunder. The execution, delivery, and performance
of this Agreement and the Transaction Documents by the Buyer and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate action or the part of the Buyer, and no
other proceeding, authorization or approval on the part of the Buyer is
necessary to authorize the execution and delivery of this Agreement and the
Transaction Documents by the Buyer or the performance by the Buyer of any of the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered on behalf of the Buyer and is a legal, valid, and binding
obligation of the Buyer enforceable against the Buyer in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance and other similar laws of general application affecting the rights of
creditors and applicable laws, regulations and principles of equity which may
restrict the enforcement of certain equitable remedies generally. When the
Transaction Documents are executed and delivered by all required parties thereto
at the Closing, such Transaction Documents will be a legal, valid, and binding
obligation of the Buyer enforceable against the Buyer in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance and other similar laws of general application affecting
the rights of creditors and applicable laws, regulations and principles of
equity which may restrict the enforcement of certain equitable remedies.
-16-
5.3. Approvals. No consent, approval, order, or authorization of, or
registration, declaration, or filing with, any governmental authority is
required in connection with the execution and delivery of this Agreement and the
Transaction Documents by the Buyer, or the consummation of the transactions
contemplated hereby or thereby. No consent of any third party is necessary to
permit the consummation by the Buyer of the transactions contemplated hereby or
thereby.
5.4. Non-Contravention. The execution and delivery of this Agreement
and the Transaction Documents and the consummation of the transactions
contemplated hereby and thereby will not, (i) violate any provision of the
Articles of Incorporation of the Buyer; (b) violate any material provision of,
or result in the breach or the acceleration of, or entitle any party to
accelerate (whether after the giving of notice or lapse of time or both), any
material obligation under, any mortgage, lien, lease, agreement, license,
instrument, order, arbitration award, judgment, or decree to which the Buyer is
a party or by which it is bound; (c) result in the creation or imposition of any
material Lien upon any property of the Buyer; or (d) violate or conflict with
any other material restriction or any law, ordinance, or rule to which the Buyer
or its property is subject.
5.5. Investment in Company Shares.
(a) The Buyer acknowledges that it has received information it
considers sufficient for deciding whether to enter into this Agreement and
the Transaction Documents to which it is a party. The Buyer further
represents that it has had an opportunity to ask questions and receive
full answers from the Company concerning, among other things, the Company,
its financial condition, its management, its prior activities and any
other information which the Buyer considers relevant or appropriate in
connection with entering into this Agreement and the Transaction Documents
to which it is a party.
(b) The Buyer acknowledges that the Company Shares will be
characterized as "restricted securities" under U.S. federal securities
laws in as much as they are being acquired from the Sellers in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration
under the Securities Act, only in certain limited circumstances. The Buyer
accepts and is able to bear the risks of holding the Company Shares
indefinitely. The Buyer, together with any advisors of the Buyer, is
capable of assessing the risks of an investment in the Company Shares and
is fully aware of the economic risks thereof.
(c) The Buyer is acquiring the Company Shares for investment
for the Buyer's own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and the Buyer has
no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, the Buyer
further represents that the Buyer does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any
of the Company Shares.
5.6 SEC Filings. Since January 1, 2003, Buyer has filed all reports
(collectively, the "SEC Reports") required to be filed by it with the Securities
and Exchange Commission by the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The SEC Reports: (i) were prepared in accordance with the
requirements of the Exchange Act in all material respect s, and (i) as of their
respective dates, did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
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5.7. Buyer's Stock Option Plan. Buyer has made available to Freibe
and Xxxxxx a true and complete copy of Buyer's 2001 Stock Option Plan ("Option
Plan"), including any amendments, the Buyer's standard form of Option Agreement.
The Option Plan has been maintained and operated in compliance in all material
respect with its written terms and applicable laws and regulations. As of the
date of this Agreement, all options issued under the Option Plan have been
issued as non-qualified stock options for tax purposes.
5.8. No Brokers. All negotiations relating to this Agreement and the
Transaction Documents, and the transactions contemplated hereby and thereby,
have been carried on by the Buyer without the intervention of any person or firm
in such manner as to give rise to any valid claim against the Sellers for a
brokerage commission, finder's fee or similar compensation.
6. Covenants of the Sellers. The Seller Parties and Xxxxxx covenant
and agree that:
6.1 Consents and Approvals. The Seller Parties and Xxxxxx will, and
will cause the Companies to, use their best reasonable efforts to obtain prior
to the Closing all consents, authorizations, and approvals under all statutes,
laws, ordinances, regulations, rules, judgments, decrees, and orders of any
court or governmental agency, board, bureau, body, department, or authority or
of any other person required to be obtained by the Companies or the Seller
Parties in connection with the execution, delivery, and performance of this
Agreement, the Transaction Documents, and the consummation of the transactions
contemplated hereby and thereby.
6.2. Public Disclosures; Confidential Material.
(a) Prior to and after the Closing Date, neither of the
Companies nor any of the Seller Parties will issue any press release or
make any other public disclosures concerning this transaction or the
contents of this Agreement without the prior written consent of the Buyer.
(b) The Sellers will, and will instruct all of its employees,
representatives, agents, and affiliates, to treat all Confidential
Material confidentially and not disclose it except in accordance herewith;
provided, that (i) any Confidential Material may be disclosed with the
prior written consent of the Buyer; (ii) Confidential Material may be
disclosed without liability hereunder to the extent required by law or by
the order or decree of any court or other governmental authority;
provided, however, that the party legally compelled to disclose the
-18-
Confidential Material will provide the Buyer with prompt notice of that
fact so that the Buyer may attempt to obtain a protective order or other
appropriate remedy. For purposes of this section, the term "Confidential
Material" will be defined to mean all Intellectual Property owned or used
by the Company and all information, documents and other materials relating
to the business, customers, products, services, prospects, plans or other
matters of the Company; provided, however, that the term "Confidential
Material" will not include information that (x) becomes generally
available to the public other than as a result of a disclosure by the
Seller or any of its employees, representatives, agents, relatives or
affiliates, or (y) was made available to the disclosing Sellers on a
non-confidential basis from a source other than the Buyer, the Company,
any subsidiary or any of their agents, provided, that such source is not
bound by a confidentiality agreement with the Buyer, the Company, any
subsidiary or any of their agents.
6.3. Conduct of Business Pending Closing. Between the date of this
Agreement and the Closing Date, but for a period of no longer than 14 days from
the date of this Agreement, the Company shall, and the Sellers shall cause MRC
to, conduct its operations only in accordance with its ordinary course of
business consistent with past practice. Without limiting the generality of the
foregoing, the Company shall not, and the Sellers shall cause MRC not to, in
each case except as required by this Agreement or consented to by the Buyer
between the date of this Agreement and the Closing Date, but for a period of no
longer than 14 days from the date of this Agreement: (i) amend any of its
governing instruments, issue any capital stock or other equity interest, (ii)
enter into, amend or terminate any agreement, contract, and commitment, (iii)
appoint any director or officer, hire any employee or change the compensation of
any director, officer or employee, (iv) license or otherwise dispose of any
Company IP Rights, (v) sell, distribute or otherwise dispose of any assets, (vi)
incur any indebtedness or other obligation other than accounts payable incurred
in the ordinary course of business, (vii) take any action that would cause any
representation of the Sellers and Xxxxxx to cease to be true, or (viii) commit
to do any of the foregoing.
6.4. Liability for Taxes. The Seller Parties and Xxxxxx shall pay
any sales, transfer and similar taxes arising out of or in connection with the
consummation of the transactions contemplated hereby to the extent imposed on
them under applicable law.
6.5. Further Assurances. The Seller Parties and Xxxxxx agree to do
or cause to be done such further acts and things and deliver or cause to be
delivered to the Buyer such additional assignments, agreements, powers, and
instruments as the Buyer may reasonably require to carry into effect the
purposes of this Agreement and the Transaction Documents or to better assure and
confirm unto the Buyer its rights, powers, and remedies hereunder and
thereunder.
6.6 Broker's Fees. In the event of any valid claim against any of
the parties hereto for a brokerage commission, finder's fee or similar
compensation owed by either of the Companies or any of the Seller Parties, the
Sellers and not the Company, will pay the fees of any finders or brokers at or
prior to Closing.
7. Covenants of the Buyer.
7.1 Consents and Approvals. The Buyer will use its best efforts to
obtain prior to the Closing all consents, authorizations, and approvals under
all statutes, laws, ordinances, regulations, rules, judgments, decrees, and
orders of any court or governmental agency, board, bureau, body, department, or
authority or of any other person required to be obtained by the Buyer in
connection with the execution, delivery, and performance of this Agreement, the
Transaction Documents, and the consummation of the transactions contemplated
hereby and thereby.
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7.2. Public Disclosures; Confidential Material.
(a) Prior to and after the Closing Date, and except for
filings required under the Exchange Act or as otherwise required by law,
Buyer will not issue any press release or make any other public
disclosures concerning this transaction or the contents of this Agreement
without the prior written consent of Freibe.
(b) Except for filings required under the Exchange Act or as
otherwise required by law, the Buyer will, and will instruct all of its
employees, representatives, agents, and affiliates, to treat all
Confidential Material confidentially and not disclose it except in
accordance herewith; provided, that (i) any Confidential Material may be
disclosed with the prior written consent of the Companies; (ii)
Confidential Material may be disclosed without liability hereunder to the
extent required by law or by the order or decree of any court or other
governmental authority; provided, however, that the party legally
compelled to disclose the Confidential Material will provide Xxxxxx with
prompt notice of that fact so that Xxxxxx may attempt to obtain a
protective order or other appropriate remedy. For purposes of this
section, the term "Confidential Material" will be defined to mean all
Intellectual Property owned or used by the Company and all information,
documents and other materials relating to the business, customers,
products, services, prospects, plans or other matters of the Company;
provided, however, that the term "Confidential Material" will not include
information that (x) becomes generally available to the public other than
as a result of a disclosure by Buyer or any of its employees,
representatives, agents, relatives or affiliates, or (y) was made
available to the Buyer on a non-confidential basis from a source other
than Xxxxxx or the Seller or any of their agents, provided, that such
source is not bound by a confidentiality agreement with the Companies.
7.3. Further Assurances. The Buyer agrees to do or cause to be done
such further acts and things and deliver or cause to be delivered to the Company
and the Seller Parties such additional assignments, agreements, powers, and
instruments as the Company and the Sellers may reasonably require to carry into
effect the purposes of this Agreement and the Transaction Documents or to better
assure and confirm unto the Company and the Seller Parties their respective
rights, powers, and remedies hereunder and thereunder.
7.4. Employee Stock Options. As soon as practicable after the
Closing Date and on each of the first three anniversaries of the Closing Date,
the Buyer, pursuant to its Option Plan and an Option Agreement in substantially
the form heretofore provided to Freibe and Xxxxxx with such changes as may be
necessary to conform to this Section 7.4, shall grant non-qualified stock
options to purchase an aggregate of 75,000 shares of Buyer Common Stock to
employees of the Company and in amounts mutually agreed by Xxxxxx, Xxxxxx and
the Buyer (the "Option Shares"). The exercise price for each share of the Option
Shares shall be the fair market value per share as of the applicable date of
grant of the related Option Shares as determined in good faith by the Board of
Directors of the Buyer. With respect to the Option Shares, the applicable
employee shall have vested and nonforfeitable rights to exercise such option to
purchase the Option Shares only to the following extent:
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Xxxxxxxxx Xxxxxxxxxx of
Applicable Date Stock Option Exercisable
--------------- ------------------------
date of grant 25%
1st anniversary of date of grant 50%
2nd anniversary of date of grant 75%
3rd anniversary of date of grant 100%
Notwithstanding the foregoing, in the event of the termination of employment of
the applicable employee any Option Shares which have not vested as of the date
of termination shall be forfeited by the applicable employee. The Option Shares
shall otherwise be subject to the terms and conditions generally applicable to
non-qualified stock options granted by the Buyer to its employees.
8. Conditions Precedent to the Seller Parties' Obligations to Close.
The obligations of the Seller Parties to consummate the transactions
contemplated by this Agreement at the Closing are, at the option of the Seller
Parties, subject to the fulfillment prior to or at the Closing of the following
conditions:
8.1. The Buyer's Performance. There will not be any material error,
misstatement, or omission in the representations and warranties made by the
Buyer in this Agreement; all representations and warranties by the Buyer
contained in this Agreement or in any written statement delivered by the Buyer
to the Company or the Seller Parties pursuant to this Agreement will be true in
all material respects at and as of the Closing (except for representations and
warranties made as of a particular date, in which case such representations and
warranties shall have been true in all material respects at and as of such date)
and the Buyer will have performed and complied in all material respects with all
the terms, provisions and conditions of this Agreement to be performed and
complied with by the Buyer at or before the Closing.
8.2. Consents and Approvals. The Buyer will have obtained all
consents, authorizations, and approvals under all statutes, laws, ordinances,
regulations, rules, judgments, decrees, and orders of any court or governmental
agency, board, bureau, body, department, or authority or of any other person
required to be obtained by the Buyer in connection with the execution, delivery,
and performance of this Agreement, the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby.
9. Conditions Precedent to the Buyer's Obligation to Close. The
obligation of the Buyer to consummate the transactions contemplated by this
Agreement at the Closing is, at the option of the Buyer, subject to the
fulfillment prior to or at the Closing of the following conditions:
-21-
9.1. The Seller Parties' Performance. There will not be any material
error, misstatement, or omission in the representations and warranties made by
the Seller Parties or Xxxxxx in this Agreement; all representations and
warranties by the Seller Parties and Xxxxxx contained in this Agreement or in
any written statement delivered by the Company or the Seller Parties to the
Buyer pursuant to this Agreement will be true in all material respects at and as
of the Closing as though such representations and warranties were made at and as
of said time (except for representations and warranties made as of a particular
date, in which case such representations and warranties shall have been true in
all material respects at and as of such date); and the Company and the Seller
Parties will have performed and complied in all material respects with all the
terms, provisions, and conditions of this Agreement to be performed and complied
with by the Company or the Seller Parties at or before the Closing.
9.2. Consents and Approvals. The Company and the Seller Parties will
have obtained all consents, authorizations, and approvals under all statutes,
laws, ordinances, regulations, rules, judgments, decrees, and orders of any
court or governmental agency, board, bureau, body, department, or authority or
of any other person required to be obtained by any Seller Party in connection
with the execution, delivery and performance of this Agreement, the Transaction
Documents, and the consummation of the transactions contemplated hereby and
thereby.
10. Indemnification.
10.1. Indemnification of the Buyer and the Company. From and after
the Closing Date, and subject to the limitations set forth in Sections 10.3 and
10.4, the Seller Parties and Xxxxxx will jointly and severally indemnify,
defend, and hold harmless the Buyer and the Company and their respective
officers, directors, shareholders, representatives, agents, and affiliates
(collectively, "Buyer Indemnified Parties") from, against, and in respect of all
claims, liabilities, actions, suits, proceedings, assessments, judgments,
losses, damages, costs, and expenses (including interest, penalties, and
reasonable accountants', experts', and attorneys' fees and disbursements,
whether incurred in a third party action or an action to enforce this provision)
(collectively, "Damages"), arising out of, relating to, or resulting from (i)
any inaccuracy or breach of any of the written representations or warranties of
the Seller Parties or Xxxxxx made in or pursuant to this Agreement or the
Transaction Documents; or (ii) the breach of any covenant, obligation, or
agreement of the Seller Parties or Xxxxxx to be performed, fulfilled, or
complied with pursuant to this Agreement.
10.2 Indemnification of the Seller Parties and Xxxxxx. From and
after the Closing Date, and subject to the limitations set forth in Sections
10.3 and 10.5, the Buyer will indemnify, defend, and hold harmless the Seller
Parties and Xxxxxx and their respective officers, directors, shareholders,
representatives, agents, and affiliates (collectively, the "Seller Indemnified
Parties") from, against, and in respect of all Damages arising out of, relating
to, or resulting from (i) any inaccuracy or breach of any of the written
representations or warranties of the Buyer made in or pursuant to this Agreement
or the Transaction Documents; or (ii) the breach of any covenant, obligation, or
agreement of the Buyer to be performed, fulfilled, or complied with pursuant to
this Agreement.
10.3. Legal Nature and Survival of Representations, Warranties,
Covenants and Indemnification. As used in this Agreement, the terms
"representation", "warranty" and the verbs "to represent" and "to warrant" refer
to separate promises of guarantee. The representations and warranties set forth
-22-
in the this agreement will survive the Closing and any investigation at any time
made by or on behalf of the Buyer, the Company or the Sellers, as applicable,
and will expire fifteen months after the Closing Date, except (a) as to the
representations and warranties in Sections 4.1, 4.2, 4.5, 4.6, 4.22, 5.1, 5.2,
5.5 and 5.6, which shall survive perpetually, and (b) as to any matter as to
which a reasonably specific good faith claim has been submitted in writing to
the Buyer, the Sellers or Xxxxxx, as applicable, prior to such date, which shall
survive until such claim is resolved. Unless as otherwise provided for herein,
the covenants set forth herein will survive the Closing; the Liability for Taxes
pursuant to Section 6.4 shall expire six months after the date the respective
assessments have become final. The representations and warranties of the Sellers
and Xxxxxx shall not be affected or deemed waived by reason of any investigation
made by or on behalf of the Buyer (including but not limited to by any of their
respective advisors, consultants or representatives) or (other than in respect
of disclosures contained or set forth in the disclosure schedules) by reason of
the fact that the Buyer or any of such advisors, consultants or representatives
know or should have known that any such representation or warranty is or might
be inaccurate.
10.4. Limitation on Indemnification Obligation of the Sellers and
Xxxxxx. The provisions of Section 10.1 shall be subject to the following
provisions:
(a) In no event shall either of the Sellers or Xxxxxx have any
indemnification obligation under Section 10.1 or otherwise in excess of
such indemnifying parties allocable portion of the aggregate consideration
in connection with the transactions contemplated by this Agreement which,
for purposes of this Section 10.4 shall be determined by multiplying the
aggregate consideration received by each of the Sellers and Xxxxxx under
this Agreement and the Transaction Documents, other than under the
Employment Agreements, over the total consideration received by all of
Seller and Xxxxxx under hereunder and thereunder (such percentage, as to
each of the indemnifying parties is referred to as the "Allocable
Portion") multiplied by the sum of (i) the amount of the Deposit, (ii) the
amounts already paid under the Note and Pledge Agreement, (iii) in the
event that Company Shares have been recovered by the Sellers pursuant to
Section 1.4(e)(iii), the value of the Company Shares so recovered as of
the date the Damages subject to indemnification were incurred; provided,
however, the foregoing limitation shall not apply in the event that the
breach of a representation under clause (i) of Section 10.1 is based on
the conduct of the Sellers or Xxxxxx which is finally determined by a
final judgment of a court of competent jurisdiction to have constituted
fraud by either Seller or Xxxxxx committed with an actual intent to
deceive the Buyer ("Fraud Finding");
(b) In no event shall either of the Sellers or Xxxxxx have any
liability for indemnification or otherwise under Section 10.1 until the
total of all Damages with respect to such indemnification matters exceeds
US $25,000.00 (the "Claim Threshold"), and then only for the total amount
of all Losses in excess of the Claim Threshold; provided that the Claim
Threshold will not apply in the event of a Fraud Finding;
(c) Buyer agrees, for itself and each of the other Buyer
Indemnified Parties (for purposes of this Section 10.4(c), collectively,
the "Buyer") that the sole and exclusive remedy for any breach of this
Agreement by Sellers or Xxxxxx, for any Damages arising herefrom or
related hereto, including without limitation, any misrepresentation,
breach of covenant or warranty, or for any other loss, cost damage or
-23-
expense relating to, arising out of or otherwise connected with any of the
transactions contemplated hereby, shall be the right of indemnification as
and to the extent set forth in this Article 10, and in all events subject
to all of the limitations herein, Buyer waiving all and each other
available remedy, at law or in equity, except that it reserves any right
to specific performance and such other rights and remedies as may be
available to it in the event of: (i) a breach based on a Fraud Finding, or
(ii) a breach of the restrictive covenants under Section 6.2 of this
Agreement, the Xxxxxx Employment Agreement or the Xxxxxx Employment
Agreement, or (iii) any breach of the License Agreement, or (iv) any
breach of any other Transaction Document to the extent of specific
remedies set forth in such Transaction Document;
(d) Buyer on behalf of itself and each of the other Buyer
Indemnified Parties, agrees that with respect to any Damages for which it,
she or he is entitled to indemnification hereunder after Closing, it shall
first seek indemnity or reimbursement, as applicable, under any policy or
policies of insurance which provides coverage against the loss that is the
subject matter of such Damages, if any, before being entitled to any
recovery from the Sellers or Xxxxxx, with Sellers' or Xxxxxx'x indemnity
obligations being limited to that portion of the Damages which is not
covered by such insurance (i.e. any deductibles or excess exposure);
(e) the Sellers' and Xxxxxx'x indemnification undertakings in
this Article 10 are personal to the Buyer and each of the other Buyer
Indemnified Parties as they exist as of the Closing and may not be
enforced by any other person; and
(f) In no instance will either of the Sellers or Xxxxxx ever
be liable to any of the Buyer Indemnified Parties for consequential,
special, or indirect damages arising out of, related to, or in any way
connected to this Agreement, any other Transaction Document, or the
transactions contemplated hereby or thereby.
10.5. Limitation on Indemnification Obligation of the Buyer. The
provisions of Section 10.2 shall be subject to the following provisions:
(a) In no event shall the Buyer have any indemnification
obligation under Section 10.2 or otherwise in excess of U.S. $240,000;
provided, however, the foregoing limitation shall not apply in the event
that the breach of a representation under clause (i) of Section 10.2 is
based on: (1) the conduct of the Buyer which is finally determined by a
final judgment of a court of competent jurisdiction to have constituted
fraud by the Buyer committed with an actual intent to deceive the Sellers
or Xxxxxx (a "Buyer Fraud Finding"), or (2) with respect to Buyer's
indemnity obligations under Exhibit B to the License Agreement;
(b) the Sellers and Xxxxxx each agrees, for itself and each of
the other Seller Indemnified Parties (for purposes of this Section
10.5(c), collectively, the "Seller") that the sole and exclusive remedy
for any breach of this Agreement by the Buyer, for any Damages arising
herefrom or related hereto, including without limitation, any
misrepresentation, breach of covenant or warranty, or for any other loss,
cost damage or expense relating to, arising out of or otherwise connected
with any of the Transaction Documents or any of the transactions
contemplated hereby, shall be the right of indemnification as and to the
-24-
extent set forth in this Article 10, and in all events subject to all of
the limitations herein, each Seller and Xxxxxx waiving all and each other
available remedy, at law or in equity, except that it reserves any right
to specific performance and such other rights and remedies as may be
available to it in the event of: (i) a breach based on a Buyer Fraud
Finding, or (ii) a breach of the restrictive covenants under Section 6.2
of this Agreement, the Xxxxxx Employment Agreement or the Xxxxxx
Employment Agreement, or (iii) any breach of the License Agreement, or
(iv) any breach of any other Transaction Document to the extent of
specific remedies set forth in such Transaction Document Buyer Fraud
Finding; and
(c) In no instance will the Buyer ever be liable to any of the
Seller Indemnified Parties for consequential, special, or indirect damages
arising out of, related to, or in any way connected to this Agreement, any
other Transaction Document, or the transactions contemplated hereby or
thereby.
10.6. Seller Parties' Waiver of Subrogation, Contribution and
Indemnification Claims. Effective at Closing, the Seller Parties hereby
irrevocably waive and release the Company from (a) any claim to or right of
subrogation or contribution against the Company in respect of any claim for
breach of a representation, warranty or covenant made by the Buyer hereunder
(whether made pursuant to indemnification rights or otherwise); and (b) any
claim to or right of indemnification against the Company arising under the
Articles of Incorporation of the Company, applicable law, or otherwise for
events or circumstances occurring or existing on or prior to the Closing Date.
11. Miscellaneous.
11.1. Complete Agreement; Amendments; Waivers. This Agreement and
the Transaction Documents, together with the exhibits and schedules hereto and
thereto, contains the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
oral or written, with respect thereto. This Agreement may be amended only by a
written instrument signed by the parties hereto. No provision of this Agreement
may be waived without a written instrument signed by the waiving party. The
failure of any party to insist, in any one or more instances, on performance of
any of the terms or conditions of this Agreement will not be construed as a
waiver or relinquishment of any rights granted hereunder or of the future
performance of any such term, covenant, or condition, but the obligations of the
parties with respect thereto will continue in full force and effect.
11.2. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
11.3. Successors and Assigns; No Third Person Beneficiaries. This
Agreement will inure to the benefit of, and be binding upon, the parties hereto
and their respective executors, heirs, and permissible assigns. Neither this
Agreement nor any of the rights or obligations hereunder (or under any document
delivered pursuant hereto) may be assigned by a party hereto without the prior
written consent of the other parties, except that the Buyer may assign this
Agreement to any of its affiliates. There shall be no third-parties
beneficiaries of any right or obligation under this Agreement.
-25-
11.4. Governing Law. This Agreement will be construed and enforced
in accordance with the laws of the State of New York without giving effect to
conflicts of laws principles which would result in the application of the laws
of any other jurisdiction. Notwithstanding the foregoing, transfer of title of
the Company shares and the MRC Shares will be subject to German Law.
11.5. Notices. All notices, claims, requests, demands, and other
communications hereunder will be in writing and will be duly given when
received: (a) personally delivered or sent via telecopy or (b) sent by Federal
Express or other reputable international courier, shipping prepaid as follows:
If to the Buyer, to:
Biophan Technologies, Inc.
150 Xxxxxx Xxxxxx Drive
Suite 000
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
XXX
Attn. Xxxxxxx Xxxxxx
with a copy to:
Xxxxx Peabody LLP
Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxxx, Xxx Xxxx 00000
Attn. Xxxxx Xxxx, Esq.
Rae/StB Xxxxxxx & Partner
Flughafensra(beta)e 00 x
00000 Xxxxxxx
Xxxxxxx
Attn. Xx. Xxxx Xxxxxxx
If to the Sellers, to:
Tomovation GmbH
Xxxxxxx. 00
X-00000 Xxxxxxx-Xxxxxx
XXXXXXX
Attn.Xx. Xxxxxxx Xxxxxx
and
Prof. Xx. Xxxxxxx Xxxxxx
c/o Tomovation GmbH
Xxxxxxx. 00
X-00000 Xxxxxxx-Xxxxxx
XXXXXXX
Attn.Xx. Xxxxxxx Xxxxxx
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and
Xx. Xxxxxxx Xxxxxx
Tomovation GmbH
Xxxxxxx. 00 X-00000
Xxxxxxx-Xxxxxx
XXXXXXX
Attn.Xx. Xxxxxxx Xxxxxx
and
Dipl.-Ing. Xxxxxx Xxxxxxxxx
c/o Tomovation GmbH
Xxxxxxx. 00
X-00000 Xxxxxxx-Xxxxxx
XXXXXXX
Attn.Xx. Xxxxxxx Xxxxxx
and
Dipl.-Betriebswirt Xxxxxxx Xxxxxx
c/o Tomovation GmbH
Xxxxxxx. 00
X-00000 Xxxxxxx-Xxxxxx
XXXXXXX
Attn.Xx. Xxxxxxx Xxxxxx
In each case, with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx Breed Xxxx & Xxxxxxx, PC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or such other address or addresses as the person to whom notice is to be given
may have previously furnished to the others in writing in the manner set forth
above.
11.6. Expenses. Except as otherwise herein provided, each of the
parties shall pay their respective costs and expenses incurred or to be incurred
by such Party in connection with the negotiations respecting any of the
Transaction Documents and the Transactions, including preparation of documents,
obtaining any necessary regulatory approvals and the consummation of the
transactions contemplated hereby. The Buyer hereby agrees to reimburse the
Companies (and Buyer agrees not to dispute any reasonable allocation of such
fees as between the Companies and the Sellers) for (a) legal fees in an
-27-
aggregate amount not to exceed US $20,000.00 and one-half of any amounts in
excess of $20,000 incurred and/or paid at or prior to the Closing Date, and (b)
accounting and auditing fees incurred by the Company in connection with the
preparation of Financial Statements for the period ended February 28, 2005 in an
amount not to exceed US $8,500.00. In the event a Closing occurs, the
obligations of the Buyer under this Section 11.6 shall be satisfied at or prior
to the Closing. In the event that a Closing does not occur, the obligations of
the Buyer under this Section 11.6 shall be deemed satisfied by Buyer's retention
of US $28,500.00 of the Deposit (or such lesser amount in full satisfaction of
such obligations).
11.7. Headings; Form of Words. The headings contained in this
Agreement (including but not limited to the titles of the schedules and exhibits
hereto) have been inserted for the convenience of reference only, and neither
such headings nor the placement of any term hereof under any particular heading
will in any way restrict or modify any of the terms or provisions hereof. Terms
used in the singular will be read in the plural, and vice versa, and terms used
in the masculine gender will be read in the feminine or neuter gender when the
context so requires, and vice versa.
11.8. Use of English Language. The parties to this Agreement
expressly declare that it is their express intention that this Agreement be
drawn up in the English language. The parties acknowledge that they fully
understand and accept any and all provisions of this Agreement, and have been
assisted in the negotiation of this Agreement by a German lawyer with working
abilities in the English language.
11.9. Severability. The provisions of this Agreement will be deemed
severable, and if any part of any provision is held to be illegal, void,
voidable, invalid, nonbinding, or unenforceable in its entirety or partially or
as to any party, for any reason, such provision may be changed, consistent with
the intent of the parties hereto, to the extent reasonably necessary to make the
provision, as so changed, legal, valid, binding, and enforceable. If any
provision of this Agreement is held to be illegal, void, voidable, invalid,
nonbinding, or unenforceable in its entirety or partially or as to any party,
for any reason, and if such provision cannot be changed consistent with the
intent of the parties hereto to make it fully legal, valid, binding, and
enforceable, then such provisions will be stricken from this Agreement, and the
remaining provisions of this Agreement will not in any way be affected or
impaired, but will remain in full force and effect.
-28-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
BUYER:
BIOPHAN TECHNOLOGIES, INC.
By:
--------------------------------------
Xx. Xxxx Xxxxxxx
Pursuant to a power of attorney granted by the Chief
Executive officer of Biophan Technologies, Inc.
THE COMPANY:
aMRIs GMBH
By:
--------------------------------------
Name: Xx. Xxxxxxx Xxxxxx
Title: Geschaftsfuhrer
SELLERS:
TOMOVATION GMBH
By:
--------------------------------------
Name: Xx. Xxxxxxx Xxxxxx
Title: Geschaftsfuhrer
XXXXXX:
--------------------------------------------
PROF. XX. XXXXXXX XXXXXX
XXXXXX:
--------------------------------------------
XX. XXXXXXX XXXXXX
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XXXXXXXXX:
--------------------------------------------
DIPL.-ING. XXXXXX XXXXXXXXX
XXXXXX
--------------------------------------------
DIPL._BETRIEBSWIRT XXXXXXX XXXXXX
MR COMP
By:
---------------------------------
Name: Dipl.-Ing. Xxxxxx Xxxxxxxxx
Title: Geschaftsfuhrer
