Contract
SECURITIES
PURCHASE AGREEMENT, dated
as
of August 16, 2007 (the “Agreement”),
among
ONCOVISTA,
INC., a
Delaware corporation with offices located at 00000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxx
Xxxxxxx, Xxxxx 00000 (“OncoVista”);
TORBJÖRN
B. LUNDQVIST, an
individual residing at 0000
Xxxxxxx Xxx, Xxxxxxxxx, XX 00000 (the
“Seller”);
and
AVIATION
UPGRADE TECHNOLOGIES, INC., a
Nevada
corporation with offices located at 0000 Xxxxxxx
Xxx,
Xxxxxxxxx, XX 00000 (the “Company”).
INTRODUCTION
The
Seller owns beneficially and of record an aggregate of 9,572,300 shares of
common stock, par value $0.001 per share (the “Common
Stock”),
of
the Company, which includes all shares of Common Stock owned beneficially or
of
record thereby, or issuable upon the exercise, conversion, or exchange of
securities or obligations held by, or owed to, the Seller, which Shares
represent 83.544% of the outstanding Common Stock at the date hereof. OncoVista
desires to acquire from the Seller, and the Seller desires to sell to OncoVista,
9,562,728 of his shares (the “Shares”),
representing 83.461% of the outstanding Common Stock at the date hereof, in
accordance with, and subject to, the terms hereof.
NOW,
THEREFORE,
in
consideration of the premises and mutual representations, warranties and
covenants herein contained, the parties hereby agree as follows:
ARTICLE
I
CERTAIN
DEFINITIONS
“Additional
Stock Purchase Agreements”
shall
mean the stock purchase agreements referenced in Schedule B hereto.
“AUT”
shall
mean Automotive Upgrade Technologies, Inc., a Nevada corporation and a
wholly-owned subsidiary of the Company.
“AUT
Products Liability Insurance Policies”
shall
have the definition assigned thereto in Section 2.02(a)(i)(E).
“Business
Day”
shall
mean any day which is not a Saturday or Sunday and is not a day on which banking
institutions are generally authorized or obligated to close in the City of
New
York, New York.
“Closing”
shall
mean the closing of the purchase by OncoVista from the Seller of the
Shares.
“Closing
Date”
shall
have the definition assigned thereto in Section 2.03(a) hereof.
“Code”
shall
have the definition assigned thereto in Section 3.01(d).
“Common
Stock”
shall
have the definition assigned thereto in to introduction hereto.
“Company”
shall
have the definition assigned thereto in the introductory paragraph
hereto.
“DGCL”
shall
mean the Delaware General Corporation Law.
“Dispose
Of”
shall
mean to pledge, hypothecate, give away, sell, grant an option (other than
pursuant hereto) with respect to, or otherwise transfer.
“Environmental
Laws” shall
have the definition assigned thereto in Section 3.01(q).
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as
amended.
“Escrow
Account”
shall
mean the escrow account established at First Republic Bank pursuant to the
Escrow Agreement.
“Escrow
Agreement”
shall
means the Escrow Agreement, dated as of the date hereof, among the parties
hereto and Reitler Xxxxx & Xxxxxxxxxx LLC, counsel to OncoVista, as escrow
agent.
“Exchange
Act”
shall
have the definition assigned thereto in Section 3.01(a)(i).
“Existing
Directors”
shall
have the definition assigned thereto in Section 4.04.
“Investment
Company Act”
shall
have the definition assigned thereto in Section 3.01(n).
“Last
Company Financial Statement Date”
shall
mean March 31, 2007.
“Last
Company Financial Statements”
shall
mean the balance sheet, statement of income, and statement of cash flows, and
the notes thereto, of the Company as of the Last Company Financial Statement
Date.
“MAC”
shall
mean MAC Financial Corp., which has served as special financial adviser in
connection with the transactions contemplated hereby and in connection
herewith.
“New
Directors”
shall
have the definition assigned thereto in Section 4.04.
“OncoVista”
shall
have the definition assigned thereto in the introductory paragraph
hereto.
“Purchase
Price”
shall
have the definition assigned thereto in Section 2.01 hereof.
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“Reorganization”
shall
mean the proposed contribution to the Company by the stockholders of OncoVista
of all outstanding shares of capital stock of OncoVista in exchange for shares
of Common Stock, which transactions are referenced in the unanimous consent
of
directors of the Company, dated as of August 15, 2007 or any other transaction
as a result of which OncoVista becomes a wholly-owned subsidiary of the Company
or merges with the Company.
“SEC”
shall
mean the United States Securities and Exchange Commission.
“SEC
Comments”
shall
have the definition assigned thereto in Section 2.02(a)(i)(C).
“SEC
Documents”
shall
have the definition assigned thereto in Section 3.01(a)(i).
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Seller”
shall
have the definition assigned thereto in the introductory paragraph
hereto.
“Shares”
shall
have the definition assigned thereto in the introduction hereto.
“Taxes”
shall
have the definitions assigned thereto in Section 3.01(j).
“Ventana”
shall
mean Ventana Capital Corp., which has served as special financial adviser in
connection with the transactions contemplated hereby and in connection
herewith.
ARTICLE
II
ACQUISITION
AND EXCHANGE OF SHARES
Section
2.01 The
Agreement.
At
the
Closing, OncoVista shall acquire from the Seller, and the Seller shall sell
to
OncoVista, the Shares in exchange for an aggregate purchase price of US$667,000
in cash, less the amount of any liabilities of the Company (the “Purchase
Price”).
Section
2.02 Closing;
Exchanges.
(a)
The
Closing shall take place on the
date
hereof
(the
“Closing
Date”)
at the
offices of Reitler Xxxxx & Xxxxxxxxxx LLC, 000 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
(i)
No
later
than ten (10) calendar days from the Closing Date, Seller shall:
(A)
deliver
or cause to be delivered to OncoVista
stock
certificates evidencing the Shares, registered in the name of OncoVista or
its
designee;
(B)
provide
Escrow Agent with written instructions to deliver to Ventana the aggregate
amount of US$42,000 by certified or official bank check or by electronic wire
transfer in accordance with instructions theretofore provided by Ventana to
the
Seller, as required by Section 4.06 hereof
and to
deliver to the selling stockholders named in the Additional
Stock
Purchase Agreements all amounts payable thereto pursuant to such agreement
by
the purchasers named therein;
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(C)
cause
the
Company to file amendments to its 10KSB for the year ended December 31, 2006,
and for the 10QSB for the quarter ended March 31, 2007, in response to the
SEC
comment letters attached as Schedule 3.01(a)(i)
(the
“SEC
Comments”);
(D)
cause
the
Company to
file
its corporate tax returns for the years ended 2005 and 2006
and pay
any taxes and penalties related thereto or arising therefrom;
(E)
deliver
to OncoVista evidence that the Company has been added to the products liability
insurance policies of AUT (the “AUT
Products Liability Insurance Policies”)
as an
additional insured; and
(F)
deliver
to OncoVista evidence that the Seller has complied with Section 4.09
hereof.
(ii)
At
or
before the Closing Date, OncoVista shall:
(A)
deliver
to the Escrow Account the Purchase Price by certified or official bank check
or
by electronic wire transfer in accordance with instructions theretofore provided
by the Seller to OncoVista;
(B)
deliver
to MAC the aggregate amount of US$83,000 by certified or official bank check
or
by electronic wire transfer in accordance with instructions theretofore provided
by MAC to OncoVista, as required by Section 4.05 hereof; and
(C)
agree
to spin
off AUT
to
Seller in exchange for Seller’s agreement to: (i) forgive any related party debt
owed by the Company to Seller; (ii)
terminate the Licensing Agreement between the Company and Seller without any
further consideration from the Company to Seller,
and
(iii) indemnify the Company against any products liability relating to the
business and products of AUT or the business of the Company prior to the
transactions contemplated hereby;
(iii)
At
or
before the Closing Date, the Company will deliver to OncoVista an Officer’s
Certificate in the form of Exhibit
2.02(a)(iii)
hereto,
dated the Closing Date, certifying, among other things, that all
representations, warranties, covenants, and conditions set forth herein by
the
Seller and the Company are true and correct as of, or have been fully performed
and complied with by, the Closing Date;
(iv)
At
or
before the Closing Date, the Seller will deliver to OncoVista and the Company
a
certificate in the form of Exhibit
2.02(a)(iv)
hereto,
dated the Closing Date, certifying that all representations, warranties,
covenants, and conditions set forth herein by the Seller and the Company are
true and correct as of, or have been fully performed and complied with by,
the
Closing Date;
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(v)
At
or
before the Closing Date, OncoVista, or a duly appointed agent thereof, will
deliver to the Seller one or more Certificates in the form of Exhibit
2.02(a)(v)
hereto,
dated the Closing Date, certifying that all representations, warranties,
covenants and conditions set forth herein by OncoVista are true and correct
as
of, or have been fully performed and complied with by, the Closing Date;
and
(vi)
At
or
before the Closing Date, the Seller and OncoVista shall execute a cross-receipt
in the form of Exhibit
2.02(a)(vi)
hereto.
(b)
The
Shares shall be authorized, issued, and outstanding shares of Common Stock.
All
Shares shall be deemed “restricted
securities”
as
defined in paragraph (a) of Rule 144 under the Securities Act. The acquisition
by OncoVista of the Shares shall be subject to an exemption from the
registration requirements of the Securities Act, under Section 4(1) of the
Securities Act and the rules and regulations promulgated thereunder.
Certificates representing the Shares shall bear a restrictive legend in
substantially the following form:
`
The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be offered for sale, sold,
or
otherwise disposed of, except in compliance with the registration provisions
of
such Act or pursuant to an exemption from such registration provisions, the
availability of which is to be established to the satisfaction of the
Company.
Section
2.03 Approval.
In
anticipation of this Agreement, the Board of Directors of the Company and of
OncoVista has taken all necessary and requisite corporate and other action
in
order to approve this Agreement and all transactions contemplated hereby and
in
connection herewith and the Reorganization and the terms thereof.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01 Representations
and Warranties of the Seller and the Company.
The
Seller and the Company, jointly and severally, represent and warrant to, and
agree with, OncoVista as follows:
(a)
(i)
The
Common Stock has been registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”)
and
the Company is subject to the periodic reporting requirements of Section 13
of
the Exchange Act. The Company has made available to OncoVista true, complete,
and correct copies of all forms, reports, schedules, statements, and other
documents required to be filed by it under the Exchange Act, as such documents
have been amended since the time of the filing thereof (collectively, including
all forms, reports, schedules, statements, exhibits, and other documents filed
by the Company therewith, the “SEC
Documents”).
Other
than as disclosed on Schedule 3.01(a)(i), the SEC
Documents, including,
without limitation, any financial statements and schedules included therein,
at
the time filed or, if subsequently amended, as so amended, (i) did not
contain
any untrue statement of a material fact required to be stated therein or
necessary in order to make the statements therein not misleading and (ii)
complied in all respects with the applicable requirements of the Exchange
Act
and the applicable rules and regulations thereunder. To the Company’s knowledge,
each director and executive officer thereof has filed with the SEC on a
timely
basis all statements required by Section 16(a) of the Exchange Act and
the rules
and regulations thereunder.
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(ii)
The
Company maintains disclosure controls and procedures required by Rule 13a-15
or
15d-15 under the Exchange Act; such controls and procedures are effective to
ensure that:
(A)
all
material information concerning the Company is made known on a timely basis
to
the individuals responsible for the preparation of the Company’s filings with
the SEC and other public disclosure documents;
(B)
transactions
are executed in accordance with management’s general or specific
authorizations;
(C)
transactions
are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and to maintain asset
accountability;
(D)
access
to
assets is permitted only in accordance with management’s general or specific
authorization; and
(E)
the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
The
Company has made available to OncoVista copies of, all written descriptions
of,
and all policies, manuals and other documents promulgating, such disclosure
controls and procedures. The books, records and accounts of the Company
accurately and fairly reflect, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of operations of, the Company
all to the extent required by generally accepted accounting principles.
(iii)
The
Chief
Executive Officer and the Chief Financial Officer of the Company have signed,
and the Company has furnished to the SEC, all certifications required by
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002; such certifications
contain no qualifications or exceptions to the matters certified therein and
have not been modified or withdrawn; and neither the Company nor any of its
officers has received notice from any governmental entity questioning or
challenging the accuracy, completeness, form or manner of filing or submission
of such certifications.
(iv)
The
Company has heretofore has provided to OncoVista complete and correct copies
of
all certifications filed with the SEC pursuant to Sections 302 and 906 of
Xxxxxxxx-Xxxxx Act of 2002
and hereby reaffirms, represents and warrants to OncoVista the matters
and
statements made in such certificates.
-6-
(b)
At
the
date hereof and at the Closing Date:
(i)
the
Common Stock is eligible to trade and be quoted on, and is quoted on, the
over-the-counter Bulletin Board market maintained by The Nasdaq Stock Market
(the “OTCBB”)
and
has received no notice or other communication indicating that such eligibility
is subject to challenge or review by the any applicable regulatory agency,
electronic market administrator, or exchange;
(ii)
the
Company has and shall have performed or satisfied all of its undertakings to,
and of its obligations and requirements with, the SEC; and
(iii)
the
Company has not, and shall not have taken any action that would preclude, or
otherwise jeopardize, the inclusion of the Common Stock for quotation on the
OTCBB.
(c)
Other
than as disclosed on Schedule 3.01(a)(i), the Company has no subsidiaries or
affiliated corporation or owns any interest in any other enterprise (whether
or
not such enterprise is a corporation). The
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State
of
Nevada with
full
power and authority (corporate and other) to own, lease and operate its
respective
properties
and conduct its respective
business
as described in the SEC Documents;
except
as otherwise disclosed on Schedule 3.01(c), the
Company is duly qualified to do business as a foreign corporation and is in
good
standing in each jurisdiction in which the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified or be in good standing would not have
a
material adverse effect on its business,
prospects, condition
(financial or otherwise), and results of operations of the Company; no
proceeding has been instituted in any such jurisdiction, revoking, limiting
or
curtailing, or seeking to revoke, limit or curtail, such power and authority
or
qualification; the Company is in possession of,
and
operating in compliance with,
all
authorizations, licenses, certificates, consents, orders and permits from state,
federal,
foreign
and
other regulatory authorities that are material to the conduct of its business,
all of which are valid and in full force and effect; the Company is not
in
violation of its charter or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any
material bond, debenture, note or other evidence of indebtedness, or in any
material lease, contract, indenture, mortgage, deed of trust, loan agreement,
joint venture or other agreement or instrument to which it is a party or by
which it or its properties or assets may be bound,
which
violation or default would have a material adverse effect on the business,
prospects, financial condition or results of operations of the
Company;
and the
Company is not
in
violation of any law, order, rule, regulation, writ, injunction, judgment or
decree of any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over the Company or over its properties or
assets,
which
violation would have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company taken as a
whole.
The SEC
Documents accurately
describe any corporation, association or other entity owned or controlled,
directly or indirectly, by the Company.
-7-
(d)
(i)
Each
of
the Seller and the Company has all requisite power and authority to execute,
deliver, and perform this Agreement and the Escrow Agreement. All necessary
proceedings of the Company have been duly taken to authorize the execution,
delivery, and performance of this Agreement and the Escrow Agreement thereby.
Each of this Agreement and the Escrow Agreement has been duly authorized,
executed, and delivered by the Seller and the Company, constitutes the legal,
valid, and binding obligation of each of the Seller and the Company, and is
enforceable as to the Seller and the Company in accordance with its respective
terms. Except as otherwise set forth in this Agreement, no consent,
authorization, approval, order, license, certificate, or permit of or from,
or
declaration or filing with, any federal, state, local, or other governmental
authority or any court or other tribunal is required by the any Seller or the
Company for the execution, delivery, or performance of this Agreement or the
Escrow Agreement thereby. No
consent, approval, authorization or order of,
or
qualification with,
any
court, government or governmental agency or body, domestic or foreign, having
jurisdiction over the Seller
or
the Company
or over its respective
properties
or assets is required for the execution and delivery of this Agreement
or
the
Escrow Agreement and
the
consummation by the
Seller and the
Company of the transactions herein and
therein contemplated,
except such as may be required under the Securities
Act
or
under state or other securities or blue
sky
laws,
all of which requirements have been,
or in
accordance therewith will be,
satisfied in all material respects.
No
consent of any party to any material contract, agreement, instrument, lease,
license, arrangement, or understanding to which the Seller or the Company is
a
party, or to which its or any of its respective businesses, properties, or
assets are subject, is required for the execution, delivery, or performance
of
this Agreement or the Escrow Agreement; and the execution, delivery, and
performance of this Agreement and the Escrow Agreement will not violate, result
in a breach of, conflict with, or (with or without the giving of notice or
the
passage of time or both) entitle any party to terminate or call a default under,
entitle any party to receive rights or privileges that such party was not
entitled to receive immediately before this Agreement was executed under, or
create any obligation on the part of the Seller or the Company to which it
was
not subject immediately before this Agreement or the Escrow Agreement was
executed under, any term of any such material contract, agreement, instrument,
lease, license, arrangement, or understanding, or violate or result in a breach
of any term of the certificate of incorporation or by-laws of the Company or
(if
the provisions of this Agreement are satisfied) violate, result in a breach
of,
or conflict with any law, rule, regulation, order, judgment, decree, injunction,
or writ of
any
court, government or governmental agency or body, domestic or foreign, having
jurisdiction over the Seller
or
the Company
or over its respective
properties
or assets.
(ii)
The
Seller is an individual who has reached the age majority in his state of
residence.
(e)
There
is
not any pending or, to the best of Seller’s
and the Company's
knowledge, threatened, action, suit, claim or proceeding against the
Seller
or
the Company,
or any of the Company’s
officers
or any of the respective properties, assets or rights
of the
Seller or of the Company,
before
any court, government or governmental agency or body, domestic or foreign,
-8-
having
jurisdiction over the Seller
or
the Company
or over the Company’s
officers
or the
properties
of
the
Seller or the Company, or
otherwise that (i) is reasonably likely to result in any material adverse
change
in the respective
business, prospects, financial condition
or results of operations of the
Seller or the
Company or might materially and adversely affect their properties, assets
or
rights taken
as
a whole, (ii)
might prevent consummation of the transactions contemplated by this Agreement,
or
(iii)
alleging
violation of any Federal or state securities laws.
(f)
The
authorized capital stock of the Company consists of 100,000,000 shares of Common
Stock, of which 11,457,750 shares of Common Stock are outstanding, and 5,000,000
shares of “blank check” preferred stock, par value $0.001 per share, no shares
of which are outstanding. Each of such outstanding shares of Common Stock is
duly and validly authorized, validly issued, fully paid, and nonassessable,
has
not been issued and is not owned or held in violation of any preemptive or
similar right of stockholders. Except as disclosed in the SEC Documents, (i)
there is no commitment, plan, or arrangement to issue, and no outstanding
option, warrant, or other right calling for the issuance of, any share of
capital stock of, or any security or other instrument convertible into,
exercisable for, or exchangeable for capital stock of, the Company, and (ii)
except as described in the SEC Documents, there is outstanding no security
or
other instrument convertible into or exchangeable for capital stock of the
Company. When
delivered by the Seller against payment therefor in accordance with the terms
of
this Agreement, the
Shares will
be
duly and validly issued and fully paid and nonassessable, and will be sold
free
and clear of any pledge, lien, security interest, encumbrance, claim or
equitable interest
of any
kind;
and no
preemptive or
similar right,
co-sale right, registration right, right of first refusal or other similar
right
of stockholders exists with respect to any of the Shares or the issuance and
sale thereof other than those that have been expressly waived prior to the
date
hereof and those that will automatically expire upon the execution hereof.
No
further approval or authorization of any stockholder, the Board of Directors
of
the Company or others is required for the issuance and sale or transfer of
the
Shares,
except
as may be required under the Securities Act, the rules
and
regulations
promulgated
thereunder or
under
state or other securities or blue
sky
laws.
The description of the Company's stock option, stock bonus and other stock
plans
or arrangements, and the options or other rights granted and exercised
thereunder, set forth in the SEC Documents accurately and fairly presents the
information required to be shown with respect to such plans, arrangements,
options and rights under the Securities Act,
the
Exchange Act,
and the
rules
and
regulations
promulgated thereunder.
Schedule
3.01(f)
hereto
sets forth the options and warrants and convertible and exchangeable securities
of the Company outstanding at the date hereof, the exercise, conversion, or
exchange prices thereof, and expiration, termination, or maturity dates
thereof.
(g) Xxxx
X.X.
Xxx, CPA examined
the financial statements of the Company, together with the related schedules
and
notes, for
the
period from January 1, 2006 through December 31, 2006, and
Xxxxxxx X. Xxxxxx, CPA examined
the financial statements of the Company, together with the related schedules
and
notes, for
the
period from January 1, 2005 through December 31, 2005 (collectively,
the “Auditors”),
filed
with the SEC as a part of the SEC Documents, are independent accountants within
the meaning of the Securities Act,
the
Exchange Act,
and the
rules
and
regulations
promulgated thereunder;
and
except as disclosed in Schedule 3.01(a)(i),
the
audited financial statements of the Company, together with the related schedules
and notes, and the unaudited financial information, forming part of the SEC
Documents, fairly present and
will
fairly
-9-
present
the
financial position and the results of operations of the Company at the
respective dates and for the respective periods to which they apply; and all
audited financial statements of the Company, together with the related schedules
and notes, and the unaudited financial information, filed with the SEC as part
of the SEC Documents, complied
and will comply as to form in all material respects with applicable accounting
requirements and with the rules and regulations of the SEC with respect hereto
when filed, have
been
and
will
be prepared
in accordance with generally accepted accounting principles consistently applied
throughout the periods involved except as may be otherwise stated
therein
(except
as may be indicated in the notes thereto or as permitted by the rules and
regulations of the SEC) and fairly present and will fairly present, subject
in
the case of the unaudited financial statements, to customary year end audit
adjustments, the financial position of the Company as at the dates thereof
and
the results of its operations and cash flows. The
procedures pursuant to which the aforementioned financial statements have been
audited are compliant with generally accepted auditing standards. The
selected and summary financial and statistical data included in the SEC
Documents present and
will
present fairly
the information shown therein and have been compiled on a basis consistent
with
the audited financial statements presented therein. No other financial
statements or schedules are required to be included in the SEC
Documents.
The
financial statements referred to in this Section 3.01(g) contain all
certifications and statements required under the SEC’s Order, dated June 27,
2002, pursuant to Section 21(a)(1) of the Exchange Act (File No. 4-460), Rule
13a-14 or 15d-14 under the Exchange Act, or 18 U.S.C. Section 1350 (Sections
302
and 906 of the Xxxxxxxx-Xxxxx Act of 2002) with respect to the report relating
thereto. Since the Last Company Financial Statement Date:
(i)
There
has
at no time been a material adverse change in the financial condition, results
of
operations, businesses, properties, assets, liabilities, or future prospects
of
the Company;
(ii)
The
Company has not authorized, declared, paid, or effected any dividend or
liquidating or other distribution in respect of its capital stock or any direct
or indirect redemption, purchase, or other acquisition of any stock of the
Company.
(iii)
Except
as
set forth in the SEC Documents, the operations and businesses of the Company
have been conducted in all respects only in the ordinary course.
There
is
no fact known to the Company which materially adversely affects or in the future
(as far as the Company can reasonably foresee) may materially adversely affect
the financial condition, results of operations, businesses, properties, assets,
liabilities, or future prospects of the Company; provided, however, that the
Company expresses no opinion as to political or economic matters of general
applicability. The Company has made known, or caused to be made known, to the
accountants or auditors who have prepared, reviewed, or audited the
aforementioned consolidated financial statements all material facts and
circumstances which could affect the preparation, presentation, accuracy, or
completeness thereof.
(h)
Subsequent
to the respective dates as of which information is given in the SEC Documents,
there has not been (i) any material adverse change in the business,
prospects, financial condition
or results of operations of the Company, (ii) any transaction
committed to or
consummated
that is
material to the Company, (iii) any obligation, direct or contingent, that
is
material to the Company incurred
by the Company, except such
obligations
as
have
been incurred
in the ordinary course of business, (iv) any change in the capital stock
or
outstanding indebtedness of the Company or
Subsidiary that
is
material to the Company, (v) any dividend or distribution of any kind declared,
paid,
or made
on the capital stock of the Company, or (vi) any loss or damage (whether
or not
insured) to the property of the Company which has a material adverse effect
on
the business,
prospects, condition
(financial or otherwise), or results of operations thereof.
-10-
(i)
At
the
Closing, the Company shall have no
properties or assets
and the
Company shall be free
and
clear of any pledge, lien, security interest, encumbrance, claim or equitable
interest.
At the
Closing, the Company shall be party to no agreements except for this Agreement
and the Additional Stock Purchase Agreements, each of which shall be
legal,
valid
and
binding agreements,
enforceable against the Company in accordance with their respective
terms.
Set
forth
as Schedule 3.01(i) hereto is a true and correct list of the selling
stockholders named in the Additional Stock Purchase Agreements, as well as
the
shares of Common Stock to be sold thereby pursuant to such Additional Stock
Purchase Agreements. Each Additional Stock Purchase Agreement is a legal, valid
and binding agreement, enforceable against the selling stockholder named therein
in accordance with its respective terms.
(j)
Other
than related party liabilities,
all of
which are owed to Seller and affiliates thereof,
the
Company’s liabilities, in the aggregate, are less than the Purchase Price (less
the amount payable hereunder to Ventana). All such liabilities, other than
those
to related parties, shall be paid at Closing from the Escrow. At or before
the
Closing, all related party liabilities shall be forgiven or otherwise
extinguished. Other than as disclosed in Schedule 3.01(j), the Company has
no
liability of any nature, accrued or contingent, including, without limitation,
liabilities for federal, state, local, or foreign taxes and penalties, interest,
and additions to tax (“Taxes”),
and
liabilities to customers or suppliers. Without limiting the generality of the
foregoing, the amounts set up as provisions for Taxes, if any, in the Last
Company Financial Statements are sufficient for all accrued and unpaid Taxes
of
the Company, whether or not due and payable and whether or not disputed, under
tax laws, as in effect on the Last Company Financial Statement Date or now
in
effect, for the period ended on such date and for all fiscal periods prior
thereto. The execution, delivery, and performance of this Agreement by the
Company will not cause any Taxes to be payable (other than those that may
possibly be payable by the Seller as a result of the sale of the Shares) or
cause any lien, charge, or encumbrance to secure any Taxes to be created either
immediately or upon the nonpayment of any Taxes other than on the properties
or
assets of the Sellers. The Internal Revenue Service has audited and settled
or
the statute of limitations has run upon all federal income tax returns of the
Company and each Seller for all taxable years up to and including the taxable
year ended December 31, 2000. The Company has filed all federal, state, local,
and foreign tax returns required to be filed by it; has made available to
OncoVista a true and correct copy of each such return which was filed in the
past six years; has paid (or has established on the last balance sheet included
in the last Company Financial Statement a reserve for) all Taxes, assessments,
and other governmental charges payable or remittable by it or levied upon it
or
its properties, assets, income, or franchises which are due and payable; and
has
delivered to OncoVista a true and correct copy of any report as to adjustments
received by it from any taxing authority during the past six years and a
statement as to any litigation, governmental or other
proceeding (formal or
informal), or investigation pending, threatened, or in prospect with respect
to
any such report or the subject matter of such report. Each Seller has paid
all
taxes payable thereby due on or prior to the date hereof.
-11-
(k)
Except
as
disclosed in Schedule 3.01(k), the
Company does
not
have any
insurance;
the
Company has at
no
time been
refused any insurance coverage sought or applied for.
(l)
(i)
No
labor
disturbance by the employees of the Company exists or, to the best of the
Company’s knowledge, is imminent. The Company is not aware of any existing or
imminent labor disturbance by the employees of any principal suppliers or
customers of
the
Company that
might be expected to result in any material adverse change in the business,
prospects, financial condition,
or results of operations of the Company. No collective bargaining agreement
exists with any of the Company’s
employees and, to the best of each Seller’s
and the Company's
knowledge, no such agreement is imminent.
(ii)
The
Company does not have, or contribute to, and has never maintained or contributed
to, any pension, profit-sharing, option, other incentive plan, or any other
type
of Employee Benefit Plan (as defined in Section 3(3) of ERISA) or Pension Plan
(as defined in ERISA) and the Company does not have any obligation to or
customary arrangement with employees for bonuses, incentive compensation,
vacations, severance pay, sick pay, sick leave, insurance, service award,
relocation, disability, tuition refund, or other benefits, whether oral or
written.
(m)
The
Company
owns or possesses
the
right to use
all
patents, patent rights, inventions, trade secrets, know-how, trademarks, service
marks, trade names,
logos,
and
copyrights described or referred to in the SEC Documents as owned by or used
by
it or that are necessary to conduct its respective
businesses
as described in the SEC Documents; the Company has not
received
any notice of, or has knowledge of, any infringement of or conflict with
asserted rights of the Company by others with respect to any patents, patent
rights, inventions, trade secrets, know-how, trademarks, service marks, trade
names,
logos,
or
copyrights described or referred to in the SEC Documents as owned by or used
by
it; and the Company has not
received
any notice of, or has no
knowledge
of, any infringement of,
or
conflict with,
asserted
rights of others with respect to any patents, patent rights, inventions, trade
secrets, know-how, trademarks, service marks, trade names,
logos,
or
copyrights described or referred to in the SEC Documents as owned by or used
by
it or which, individually or in the aggregate, in the event of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
business,
prospects, financial condition
or results of operations of the Company.
(n)
The
Company has been advised concerning the Investment Company Act of 1940, as
amended (the “Investment
Company Act”),
and
the rules and regulations thereunder, and has in the past conducted, and intends
in the future,
to
conduct its affairs in such a manner as to ensure that it is not and will not
become an “investment
company”
or a
company “controlled”
by an “investment company”
within
the meaning of the Investment Company Act and such rules and regulations.
-12-
(o) (i)
The
Company
has
not, and
no person or entity acting on behalf or at the request of the Company
has,at
any
time during the last five years (i) made any unlawful contribution to any
candidate for foreign office or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any other applicable jurisdiction.
(ii) Neither
Company, nor, to the best knowledge of the Seller nor the Company, any director,
officer, agent, employee, or other person associated with, or acting on behalf
of, the Company, has, directly or indirectly: used any corporate funds for
unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or
campaigns from corporate funds; violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or made any bribe, rebate, payoff, influence
payment, kickback, or other unlawful payment. The Company's internal accounting
controls and procedures are sufficient to cause the Company to comply in all
respects with the Foreign Corrupt Practices Act of 1977, as
amended.
(iii)
Neither
the Seller or the Company, nor any officer, director or affiliate of the
Company, has been, within the five years ending on the Closing Date, a party
to
any bankruptcy petition against such person or against any business of which
such person was affiliated; convicted in a criminal proceeding or subject to
a
pending criminal proceeding (excluding traffic violations and other minor
offenses); subject to any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently or
temporarily enjoining, barring, suspending or otherwise limiting their
involvement in any type of business, securities or banking activities; or found
by a court of competent jurisdiction in a civil action, by the SEC or the
Commodity Futures Trading Commission to have violated a federal or state
securities or commodities law, and the judgment has not been reversed, suspended
or vacated.
(p)
The
Company
has not,
and no person acting on behalf thereof, has
taken
or will take, directly or indirectly, any action designed to,
or that
might reasonably be expected to cause or result in,
stabilization in violation of law,
or
manipulation,
of the
price of the Common Stock to facilitate the sale or resale of the
Shares.
(q)
Except
as
set forth in the SEC Documents, (i) the Company is in compliance in
all
material respects with
all
rules, laws and regulations relating to the use, treatment, storage and disposal
of toxic substances and protection of health or the environment (“Environmental
Laws”)
that
are applicable to its business, (ii) the Company has not
received
notice from any governmental authority or third party of an asserted claim
under
Environmental Laws, which claim is required to be disclosed in the SEC
Documents, (iii) to the best knowledge
of the
Company,
the
Company is not
likely
to
be required to make future material capital expenditures to comply with
Environmental Laws (iv) no property which is owned, leased or occupied by the
Company has been designated as a Superfund site pursuant to the Comprehensive
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
§
9601,
et seq.),
or
otherwise designated as a
contaminated site under
applicable state or local law, and (v) the Company is not
in
violation of any federal or state law or regulation relating to occupational
safety or health.
-13-
(r)
There
are
no outstanding loans, advances or guarantees of indebtedness by the Company
to,
or for
the benefit of,
any of
the officers, directors,or
director-nominees of the Company or any of the members of the families of any
of
them, except as disclosed in the SEC Documents.
(s)
The
Company has not
incurred
any liability, direct or indirect, for finders' or similar fees on behalf of
or
payable by the Company or OncoVista in connection with the Transaction
Agreements or any other transaction involving the Company and
OncoVista,
except
as otherwise disclosed herein.
(t) No
stockholder of the Company has any right to request or require the Company
to
register the sale of any shares owned by such stockholder under the Securities
Act on any registration statement.
(u)
The
Company is in compliance with, and is not in violation of, applicable federal,
state, local or foreign statutes, laws and regulations (including without
limitation, any applicable building, zoning or other law, ordinance or
regulation) affecting its properties or the operation of its business,
including, without limitation, Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated pursuant thereto or thereunder. The Company is not
subject to any order, decree, judgment or other sanction of any court,
administrative agency or other tribunal.
(v)
(i)
The
Shares are owned of record and beneficially held by the Seller free and clear
of
any security interest, pledge, mortgage, lien (including, without limitation,
environmental and tax liens), charge, encumbrance, adverse claim, preferential
arrangement or restriction of any kind, including, without limitation, any
restriction on the use, voting, transfer (except as otherwise provided herein),
receipt of income or other exercise of any attributes of ownership. The Shares
are not subject to any options, warrants, convertible securities or other
rights, agreements, arrangements or commitments of any character relating to
interests therein. There are no voting trusts, member agreements, proxies,
or
other agreements or understandings in effect with respect to the voting or
transfer of any of the Shares. Other than the Shares, the Seller owns
beneficially or of record, no shares of capital stock or other securities of
the
Company, and do not own beneficially or of record, any securities exercisable
for, or convertible into or exchangeable for, securities of the
Company.
(ii) The
Seller acquired the Shares from the Company in private transactions not
involving a public offering and, on the dates of such acquisitions, the Seller
paid the full purchase price therefor. The Shares are “restricted
securities”
as
defined in Rule 144(a) under the Securities Act.
-14-
(iii)
Neither
the Seller nor any affiliate thereof knows of any material adverse information
regarding the current or prospective operations of the Company which has not
been publicly disclosed.
(w)
All
brochures, product information, business cards, etc. and operations are done
through the Company’s subsidiary, AUT.
However, the bank account and billing is done through the Company.
Section
3.02 Representations
and Warranties of OncoVista.
OncoVista hereby represents and warrants to, and agrees with,
Seller:
(a)
OncoVista
has all requisite power and authority to execute, deliver, and perform this
Agreement and the Escrow Agreement. All necessary proceedings of OncoVista
have
been duly taken to authorize the execution, delivery, and performance of this
Agreement and the Escrow Agreement thereby. Each of this Agreement and the
Escrow Agreement has been duly authorized, executed, and delivered by OncoVista,
constitutes the legal, valid, and binding obligation of OncoVista, and is
enforceable as to OncoVista in accordance with its respective terms. Except
as
otherwise set forth in this Agreement, no consent, authorization, approval,
order, license, certificate, or permit of or from, or declaration or filing
with, any federal, state, local, or other governmental authority or any court
or
other tribunal is required by OncoVista for the execution, delivery, or
performance of this Agreement or the Escrow Agreement thereby. No
consent, approval, authorization or order of,
or
qualification with,
any
court, government or governmental agency or body, domestic or foreign, having
jurisdiction over OncoVista or
over
its respective
properties
or assets is required for the execution and delivery of this Agreement
and
the
Escrow Agreement and
the
consummation by OncoVista
of
the
transactions herein contemplated, except such as may be required under the
Securities
Act
or
under state or other securities or blue
sky
laws,
all of which requirements have been,
or in
accordance therewith will be,
satisfied in all material respects.
No
consent of any party to any material contract, agreement, instrument, lease,
license, arrangement, or understanding to which OncoVista is a party, or to
which its or any of its businesses, properties, or assets are subject, is
required for the execution, delivery, or performance of this Agreement and
the
Escrow Agreement; and the execution, delivery, and performance of this Agreement
and the Escrow Agreement will not violate, result in a breach of, conflict
with,
or (with or without the giving of notice or the passage of time or both) entitle
any party to terminate or call a default under, entitle any party to receive
rights or privileges that such party was not entitled to receive immediately
before this Agreement or the Escrow Agreement was executed under, or create
any
obligation on the part of OncoVista to which it was not subject immediately
before this Agreement or the Escrow Agreement was executed under, any term
of
any such material contract, agreement, instrument, lease, license, arrangement,
or understanding, or violate or result in a breach of any term of the operating
agreement of the Company or (if the provisions of this Agreement are satisfied)
violate, result in a breach of, or conflict with any law, rule, regulation,
order, judgment, decree, injunction, or writ of
any
court, government or governmental agency or body, domestic or foreign, having
jurisdiction over OncoVista or over its properties or assets.
(b)
OncoVista
is an “accredited
investor”
as
defined in Rule 501 of Regulation D under the Securities Act. OncoVista is
acquiring the Shares for its own account (and not for the account
-15-
of
others) for investment and not with a view to the distribution or resale thereof
in violation of the Securities Act. OncoVista understands that it may not sell
or otherwise Dispose Of
such
Shares in the absence of either an effective registration statement under the
Securities Act or an exemption from the registration provisions of the
Securities Act. OncoVista acknowledges being informed that the shares of Common
Stock acquired thereby shall be unregistered, shall be “restricted
securities”
as
defined in Rule 144(a) under the Securities Act, and must be held indefinitely
unless (i) they are subsequently registered under the Securities Act, or
(ii) an exemption from such registration is available. OncoVista further
acknowledges that the Company does not have an obligation to currently register
such securities for the account of OncoVista.
(c)
By
virtue
of OncoVista’s position, it has access to the same kind of information which
would be available in a registration statement filed under the Securities Act.
OncoVista acknowledges that it has been afforded access to all material
information which it has requested relevant to its decision to acquire the
Shares to acquired thereby and to ask questions of the Company’s management and
that, except as set forth herein, neither Seller or the Company nor anyone
acting on behalf of the Seller or the Company, has made any representations
or
warranties to OncoVista which have induced, persuaded, or stimulated OncoVista
to acquire such Shares.
(d)
Either
alone, or together with their investment advisor(s), OncoVista has the knowledge
and experience in financial and business matters to be capable of evaluating
the
merits and risks of the prospective investment in the Shares to be acquired
thereby, and OncoVista is and will be able to bear the economic risk of the
investment in such Shares.
(e)
The
information contained in OncoVista’s private placement memorandum dated
July
25,
2007, as amended by Supplement No. 1 thereto, dated July 30,
2007
(the “PPM”)
and
attached hereto as Exhibit 3.02(e), is completely accurate in all material
respects and does not contain or omit any information that would make the
information contained therein misleading in any material respects. Since
July 25,
2007:
(i)
There
has
at no time been a material adverse change in the financial condition, results
of
operations, businesses, properties, assets, liabilities, or future prospects
of
OncoVista;
(ii)
OncoVista
has not authorized, declared, paid, or effected any dividend or liquidating
or
other distribution in respect of its capital stock or any direct or indirect
redemption, purchase, or other acquisition of any stock of OncoVista;
and
(iii)
Except
as
set forth in the PPM, the operations and businesses of OncoVista have been
conducted in all respects only in the ordinary course.
There
is
no fact known to OncoVista which materially adversely affects or in the future
(as far as OncoVista can reasonably foresee) may materially adversely affect
the
financial condition, results of operations, businesses, properties, assets,
liabilities, or future prospects of OncoVista; provided, however, that OncoVista
expresses no opinion as to political or economic matters of general
applicability. OncoVista has made known, or caused to be made known, to the
accountants or auditors who have prepared, reviewed, or audited the
aforementioned consolidated financial statements all material facts and
circumstances which could affect the preparation, presentation, accuracy, or
completeness thereof.
-16-
(f)
Subsequent
to July
25,
2007, except relating to the transactions contemplated hereby, there
has
not been (i) any material adverse change in the business,
prospects, financial condition
or results of operations of OncoVista, (ii) any transaction
committed to or consummated
that is
material to OncoVista,
(iii)
any obligation, direct or contingent, that is material to OncoVista
incurred
by OncoVista,
except
such
obligations
as
have
been incurred
in the ordinary course of business, (iv) any change in the outstanding
indebtedness of OncoVista
that
is
material to OncoVista,
(v) any
dividend or distribution of any kind declared, paid,
or made
on the capital stock of OncoVista, or (vi) any loss or damage (whether or not
insured) to the property of OncoVista
which
has a material adverse effect on the business,
prospects, condition
(financial or otherwise), or results of operations thereof.
ARTICLE
IV
ADDITIONAL
COVENANTS
Section
4.01 Indemnity.
The
Seller agrees
to
indemnify and hold harmless OncoVista and its officers, directors, employees,
counsel, agents, and stockholders, in each case past, present, or as they may
exist at any time after the date of this Agreement, and each person, if any,
who
controls, controlled, or will control any of them within the meaning of Section
15 of the Securities Act or Section 20(a) of the Securities Exchange Act of
1934, as amended, against any and all losses, liabilities, damages, and expenses
whatsoever (which shall include, for all purposes of this Article IV, but not
be
limited to, counsel fees and any and all expenses whatsoever incurred in
investigating, preparing, or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation) as and when incurred arising out of, based upon,
or
in connection with (a) any material breach of any representation, warranty,
covenant, or agreement of the Seller or the Company contained in this
Agreement,
(b) if
the Closing takes place, any act
or
alleged
omission
occurring at or prior to the Closing (including without limitation any which
arise out of, are based upon, or are in connection with any of the transactions
contemplated hereby) which subjects OncoVista to damages related
to the intentional act or intentional omission,
(c) the
SEC Comments, (d) the products of AUT or the Company, if any, and (e) any claim
arising out of the transactions contemplated by the Additional Stock Purchase
Agreements.
The
foregoing agreement to indemnify shall be in addition to any liability Seller,
the Company or AUT
may
otherwise have, including liabilities arising under this Agreement.
Section
4.02 Stockholders;
Other Securities.
The
Seller hereby agrees that immediately prior to the Closing, the Company will
have at least 100 stockholders. Prior to the date of this Agreement, all of
the
Company’s outstanding convertible debt, options, warrants and all other
indebtedness of the Company shall have been converted to shares of Common Stock.
Section
4.03 Assets
and Liabilities.
At
the
Closing, the Company shall have no assets and no liabilities.
Section
4.04 Corporate
Governance.
At
the
Closing, (a) the Board of Directors of the
Company shall consist of one
current director
(the
“Existing
Director”),
who
shall resign immediately thereafter,
and two
directors appointed by OncoVista (the “New
Directors”),
and
(b) all officers of the Company shall resign and the Board of Directors shall
appoint the designees of OncoVista as the sole officers thereof.
-17-
Section
4.05 Payment
to MAC.
At
the
Closing, OncoVista shall pay to, or as directed by MAC, the sum of $83,000.
MAC
shall be entitled to enforce the covenant set forth in this Section 4.05 against
OncoVista only.
Section
4.06 Payment
to Ventana.
At
the
Closing, the Seller shall pay to, or as directed by Ventana, the sum of $42,000.
Ventana shall be entitled to enforce the covenant set forth in this Section
4.06
as against Seller only.
Section
4.07 Insurance. Seller
and AUT shall cause OncoVista to be listed as an “additionally insured” on AUT
Products Liability Insurance Policy.
Section
4.08 SEC
Comments. The
Seller, at the expense of the Company, shall take all such further acts as
shall
be required to resolve the SEC Comments.
Section
4.09 Additional
Stock Purchase Agreements. At
the
Closing, the payments required to be made to the selling stockholders named
in
the Additional Stock Purchase Agreements by the purchasers named therein shall
be made by the Seller on behalf of the purchasers named therein, which payments
shall constitute a portion of, and shall be paid from, the Purchase
Price.
ARTICLE
V
MISCELLANEOUS
Section
5.01 Expenses.
Whether
or not the transactions contemplated in this Agreement are consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby, will be paid by the party incurring such
expense or as otherwise agreed to herein.
Section
5.02 Necessary
Actions.
Subject
to the terms and conditions herein provided, each of the parties hereto agrees
to use all reasonable efforts to take, or cause to be taken, all action and
to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. In the event at any time after
the
Closing, any further action is necessary or desirable to carry out the purposes
of this Agreement, the Seller, the proper executive officers and/or directors
of
the Company, or OncoVista, as the case may be, will take all such necessary
action.
Section
5.03 Notices.
Any
notice or other communication required or permitted to be given hereunder shall
be in writing and shall be mailed by certified mail, return receipt requested
or by the most nearly
comparable method if mailed from or to a location outside of the United
States
or by Federal Express, Express Mail, or similar overnight delivery or courier
service or delivered (in person or by telecopy, telex, or similar
telecommunications equipment) against receipt to the party to which it
is to be
given at the address of such party set forth in the introductory paragraph
to
this Agreement (or to such other address as the party shall have furnished
in
writing in accordance with the provisions of this Section 5.03.) Any notice
shall be addressed to the attention of the Corporate Secretary. A copy
of any
and all notices to OncoVista shall be delivered in accordance with this
section
to Reitler Xxxxx & Xxxxxxxxxx LLC, 000 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx Xxxxx, Esq. A copy of any and
all
notices to Seller shall be delivered in accordance with this section to
Torbjorn
Lundqvist at 0000 XxxxxxxXxx,
Xxxxxxxxx, XX 00000 with a copy to Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxx LLP,
0000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, Attention: Xxxxx X.
Xxxxx,
Esq. Any notice or other communication given by certified mail (or by such
comparable method) shall be deemed given at the time of certification thereof
(or comparable act), except for a notice changing a party's address which
will
be deemed given at the time of receipt thereof. Any notice given by other
means
permitted by this Section 5.03 shall be deemed given at the time of receipt
thereof.
-18-
Section
5.03 Parties
in Interest.Except
as
expressly provided in Sections 4.01 and 4.05 hereof, this Agreement will inure
to the benefit of and be binding upon the parties hereto and the respective
successors and assigns. Nothing in this Agreement is intended to confer,
expressly or by implication, upon any other person any rights or remedies under
or by reason of this Agreement.
Section
5.04 Entire
Agreement; Modification.
This
Agreement sets forth the entire understanding of the parties with respect to
the
subject matter hereof (except as provided in Section 5.04), supersedes all
existing agreements among them concerning such subject matter, and may be
modified only by a written instrument duly executed by each party hereto.
Section
5.05 Availability
of Equitable Remedies.
Since a
breach of the provisions of this Agreement could not adequately be compensated
by money damages, any party shall be entitled, in addition to any other right
or
remedy available to it, to an injunction restraining such breach or threatened
breach and to specific performance of any such provision of this Agreement,
and
no bond or other security shall be required in connection therewith, and the
parties hereby consent to the issuance of such an injunction and to the ordering
of specific performance.
Section
5.06 Survival.
Each of
the covenants, agreements, representations, and warranties contained in this
Agreement shall survive the Closing Date until the date 18 months thereafter.
The statements contained in any document executed by either the Seller or the
Company relating hereto or delivered to OncoVista in connection with the
transactions contemplated hereby or thereby, or in any statement, certificate,
or other instrument delivered by, or on behalf of, either the Seller or the
Company pursuant hereto or thereto or delivered to OncoVista in connection
with
the transactions contemplated hereby or thereby shall be deemed representations
and warranties, covenants and agreements, or conditions, as the case may be,
of
the Seller or the Company, respectively, hereunder for all purposes of this
Agreement (including all statements, certificates, or other instruments
delivered pursuant hereto or thereto or delivered in connection with this
Agreement, or any of the other transactions contemplated hereby). The
statements contained in any
document executed by OncoVista relating hereto or delivered to either the
Seller
or the Company in connection with the transactions contemplated hereby
or
thereby, or in any statement, certificate, or other instrument delivered
by, or
on behalf of, OncoVista pursuant hereto or thereto or delivered to either
the
Seller or the Company in connection with the transactions contemplated
hereby or
thereby shall be deemed representations and warranties, covenants and
agreements, or conditions, as the case may be, of OncoVista hereunder for
all
purposes of this Agreement (including all statements, certificates, or
other
instruments delivered pursuant hereto or thereto or delivered in connection
with
this Agreement, or any of the other transactions contemplated
hereby).
-19-
Section
5.07 Binding
Effect.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the Seller, the Company, and OncoVista, and their respective successors and
assigns; provided, however, that no party hereto shall have the right to assign
its rights and obligations hereunder without the prior written consent of the
other parties hereto.
Section
5.08 Counterpart.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original and all together will constitute one document. The delivery
by facsimile of an executed counterpart of this Agreement will be deemed to
be
an original and will have the full force and effect of an original executed
copy.
Section
5.09 Severability.
The
provisions of this Agreement will be deemed severable and the invalidity or
unenforceability of any provision hereof will not affect the validity or
enforceability of any of the other provisions hereof. If any provisions of
this
Agreement, or the application thereof to any person or any circumstance, is
illegal, invalid or unenforceable, (a) a suitable and equitable provision
will be substituted therefor in order to carry out, so far as may be valid
and
enforceable, the intent and purpose of such invalid or unenforceable provision,
and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances will not be affected by such
invalidity or unenforceability, nor will such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
Section
5.10 Headings.
The
Article and Section headings are provided herein for convenience of reference
only and do not constitute a part of this Agreement and will not be deemed
to
limit or otherwise affect any of the provisions hereof.
Section
5.11
Governing
Law.
This
Agreement will be deemed to be made in and in all respects will be interpreted,
construed and governed by and in accordance with the law of the State
of New York, without regard to the conflict of law principles thereof.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
-20-
IN
WITNESS WHEREOF, the
parties hereto have executed and delivered this Agreement in a manner legally
binding upon them as of the date first above written.
| ONCOVISTA, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxxxx Xxxx | |
|
Name: Xxxxxxxxx X. Xxxx, Ph.D. |
||
|
Title:
Chairman of the Board of Directors,
Chief
Executive Officer, and
President
|
||
|
/s/
Torbjorn Lundqvist
Torbjorn B. Lundqvist |
||
|
AVIATION
UPGRADE TECHNOLOGIES, INC.
|
||
| |
|
|
| By: | /s/ Torbjorn Lundqvist | |
|
Name: Torbjorn B. Lundqvist |
||
|
Title:
Chairman of the Board of Directors,
Chief
Executive Officer, and
President
|
||
-21-
List
of Schedules and Exhibits
|
Schedule
3.01(a)(i)
|
SEC
Comment Letters
|
|
Schedule
3.01(c)
|
Disclosure
Re: Parent CA Qualification and Subsidiary Nevada Qualification
|
|
Schedule
3.01(f)
|
Options,
Warrants, and Convertible and Exchangeable Securities
|
|
Schedule
3.01(i)
|
Schedule
of Additional Stock Purchase Agreements and the Selling Stockholders
Named
therein
|
|
Schedule
3.01(j)
|
List
of Current Non-Affiliate Liabilities
|
|
Schedule
3.01(k)
|
Insurance
Policies
|
|
Exhibit
2.02(a)(iii)
|
Company
Officers’ Certificate
|
|
Exhibit
2.02(a)(iv)
|
Seller’s
Certificate
|
|
Exhibit
2.02(a)(v)
|
OncoVista
Officers’ Certificate
|
|
Exhibit
2.02(a)(vi)
|
Cross-Receipt
|
|
Exhibit
3.02(e)
|
OncoVista
Private Placement Memorandum dated July
25, 2007, as amended and Supplemented by Supplement No., dated
July
30,
2007
|
-22-
