EXHIBIT 10.1
SHARE EXCHANGE AND REORGANIZATION AGREEMENT, dated as of August 24,
2005 (the "AGREEMENT"), between OWLSTONE NANOTECH, INC., a Delaware corporation
with offices located at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
("DECORP"); , and THE BENEFICIAL STOCKHOLDERS OF UKCORP IDENTIFIED IN SCHEDULE A
HERETO (the "UKCORP SHAREHOLDERS").
INTRODUCTION
DECorp desires to acquire all of the issued and outstanding shares (the
"UKCORP CAPITAL STOCK") of Owlstone Limited, a company incorporated in England
and Wales with company number 4955647 whose registered office is at 5th Floor
Savannah House, 11 Xxxxxxx XX Street, London SW1Y 4QU ("UKCORP"), solely in
exchange for an aggregate of 60,000,000 shares of authorized, but theretofore
unissued, shares of common stock, par value $0.001 per share, of DECorp (the
"DECORP COMMON STOCK"), representing 100% of the fully diluted outstanding
DECorp Common Stock giving effect to such issuance. The UKCorp Shareholders
desire to exchange all of their beneficially owned shares of UKCorp Capital
Stock solely for shares of DECorp Common Stock in the amount set forth herein.
Prior to the date hereof, the respective boards of directors or
analogous governing body of each of DECorp and UKCorp have, and the UKCorp
Shareholders have, approved and adopted this Agreement and it is the intent of
the parties hereto that the transactions contemplated hereby be structured so as
to qualify as a tax-free exchange under Subchapter C of the Internal Revenue
Code of 1986, as amended (the "CODE"), and the provisions of this Agreement will
be interpreted in a manner consistent with this intent.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.01 THE AGREEMENT. The parties hereto hereby agree that, upon
the execution and delivery hereof (the "CLOSING"), DECorp shall acquire all of
the issued and outstanding shares of UKCorp Capital Stock solely in exchange for
an aggregate of 60,000,000 shares of authorized, but theretofore unissued,
shares of DECorp Common Stock. The parties hereto agree that at the Closing:
UKCorp will become a wholly-owned subsidiary of DECorp subject to the conditions
and provisions of Section 1.03 hereof.
SECTION 1.02 EXCHANGE OF SHARES.
(a) At the Closing, DECorp will cause to be issued and held for
delivery to the UKCorp Shareholders or their designees, stock certificates
representing an aggregate of 60,000,000 shares of DECorp Common Stock,
representing 100% of the fully diluted outstanding DECorp Common Stock giving
effect to such issuance, in exchange for all of the issued and outstanding
shares of UKCorp Capital Stock, which shares will be delivered to DECorp at the
Closing.
(b) The shares of DECorp Common Stock to be issued pursuant to
paragraph (a) of this Section 1.02 will be authorized, but theretofore unissued
shares of DECorp Common Stock, and will be issued to the UKCorp Shareholders or
as directed thereby as set forth in Schedule 1.02(b) hereof.
(c) All shares of DECorp Common Stock to be issued hereunder shall
be deemed "RESTRICTED securities" as defined in paragraph (a) of Rule 144 under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and the UKCorp
Shareholders will represent in writing that they are acquiring said shares for
investment purposes only and without the intent to make a further distribution
of such shares. All shares of DECorp Common Stock to be issued under the terms
of this Agreement shall be issued pursuant to an exemption from the registration
requirements of the Securities Act, under Section 4(2) of the Securities Act and
the rules and regulations promulgated thereunder. Certificates representing the
shares of DECorp Common Stock to be issued hereunder 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 1.03 CLOSING. The Closing will take place at a date and time
(the "CLOSING DATE") and place to be mutually agreed upon by the parties hereto,
and will be subject to the provisions of Article IV of this Agreement. At the
Closing:
(a) The UKCorp Shareholders will deliver to DECorp stock
certificates or other evidences representing all of the issued and outstanding
shares of UKCorp Capital Stock, duly endorsed, so as to make DECorp the holder
thereof, free and clear of all liens, claims and other encumbrances; and
(b) DECorp will deliver to, or at the direction of, the UKCorp
Shareholders, in accordance with Schedule 1.02(b) hereof, stock certificates
representing an aggregate of 60,000,000 shares of DECorp Common Stock, which
certificates will bear a standard restrictive legend in the form customarily
used with restricted securities and as set forth in Section 1.02(c) above and
which shares shall represent 100% of the outstanding DECorp Common Stock giving
effect to the issuance thereof.
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SECTION 1.04 APPROVAL BY BOARD OF DIRECTORS. In anticipation of this
Agreement, DECorp has taken all necessary and requisite corporate and other
action, including without limitation, actions of the Board of Directors in order
to approve this Agreement and all transactions contemplated hereby and in
connection herewith.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 REPRESENTATIONS AND WARRANTIES OF DECORP. DECorp hereby
represents and warrants to, and agrees with the UKCorp Shareholders as follows:
(a) ORGANIZATION AND QUALIFICATION. DECorp has no subsidiaries or
affiliated corporation or owns any interest in any other enterprise (whether or
not such enterprise is a corporation). DECorp is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
with all requisite power and authority, and all necessary consents,
authorizations, approvals, orders, licenses, certificates, and permits of and
from, and declarations and filings with, all federal, state, local, and other
governmental authorities and all courts and other tribunals, to own, lease,
license, and use its properties and assets and to carry on the businesses in
which it is now engaged and the businesses in which it contemplates engaging.
DECorp is duly qualified to transact the businesses in which it is engaged and
is in good standing as a foreign corporation in every jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the conduct of
its businesses makes such qualification necessary.
(b) CAPITALIZATION. The authorized capital stock of DECorp
consists of 100,000,000 shares of DECorp Common Stock, of which no shares are
outstanding, and 10,000,000 shares of "blank check" preferred stock, par value
$0.001 per share, no shares of which are outstanding. 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 DECorp or any
security or other instrument convertible into, exercisable for, or exchangeable
for capital stock of DECorp. There is outstanding no security or other
instrument convertible into, or exchangeable or exercisable for, capital stock
of DECorp.
(c) OPERATIONS. DECorp was incorporated under the laws of the
State of Delaware on February 18, 2005, has conducted no operations to date, and
has no assets or liabilities.
(d) AUTHORITY. DECorp has all requisite power and authority to
execute, deliver, and perform this Agreement. All necessary corporate
proceedings of DECorp have been duly taken to authorize the execution, delivery,
and performance of this Agreement thereby. This Agreement has been duly
authorized, executed, and delivered by DECorp, constitutes the legal, valid, and
binding obligation of DECorp, and is enforceable as to DECorp in accordance with
its 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 DECorp for the
execution, delivery, or performance of this Agreement by DECorp. No consent of
any party to any material contract, agreement, instrument, lease, license,
arrangement, or understanding to which DECorp is
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a party, or to which it or any of its businesses, properties, or assets are
subject, is required for the execution, delivery, or performance of this
Agreement; and the execution, delivery, and performance of this 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 before this Agreement was executed under,
or create any obligation on the part of DECorp to which it was not subject
immediately before this 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 other charter document) or by-laws of DECorp, or (if the
provisions of this Agreement are satisfied) violate, result in a breach of, or
conflict with any law, rule, regulation, order, judgment, or decree binding on
DECorp or to which any of its businesses, properties, or assets are subject,
which violation or breach would have a material adverse effect on DECorp.
Neither DECorp, nor any of its officers, directors, employees, or agents has
employed any broker or finder or incurred any liability for any fee, commission,
or other compensation payable by any person on account of alleged employment as
a broker or finder, or alleged performance of services as a broker or finder, in
connection with or as a result of this Agreement or the transactions
contemplated hereby and in connection herewith.
(e) STATUS OF SHARES OF DECORP COMMON STOCK TO BE ISSUED. Assuming
without investigation that the shares of UKCorp Capital Stock outstanding on the
Closing Date are validly authorized, validly issued, fully paid, and
nonassessable, the shares of DECorp Common Stock to be issued pursuant to
Section 1.02(a) hereof, are validly authorized and, when the such shares of
DECorp Common Stock have been duly delivered pursuant to the terms of this
Agreement, such shares of DECorp Common Stock will be validly issued, fully
paid, and nonassessable and will not have been issued, owned or held in
violation of any preemptive or similar right of stockholder and will represent
100% of the fully diluted DECorp Common Stock as at the date hereof.
(f) REORGANIZATION.
(i) DECorp has not taken and has not agreed to take any
action (other than actions contemplated by this Agreement) that could reasonably
be expected to prevent the transactions contemplated by this Agreement from
constituting a "reorganization" under section 368(b) of the Code or as an
acquisition of in excess of 80% of the stock of a corporation in exchange for
property under Section 351 of the Code. DECorp is not aware of any agreement,
plan or other circumstance that could reasonably be expected to prevent the
transactions contemplated by this Agreement from so qualifying.
(ii) DECorp has no plan or intention to reacquire, and, to
DECorp's knowledge, no person related to DECorp within the meaning of Treasury
Regulations Section 1.368-1 has a plan or intention to acquire, any of the
DECorp Common Stock pursuant to Section 1.02(a) hereof.
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SECTION 2.02 REPRESENTATIONS AND WARRANTIES OF THE UKCORP SHAREHOLDERS.
The UKCorp Shareholders hereby represent and warrant to, and agree with, DECorp
as follows:
(a) AUTHORITY. The UKCorp Shareholders have each approved
this Agreement and duly authorized the execution and delivery hereof. The UKCorp
Shareholders have full power and authority under the laws of the jurisdictions
of residence thereof to execute, deliver, and perform this Agreement and the
transactions contemplated hereby and in connection herewith. The UKCorp
Shareholders have reached the age of majority under applicable law.
(b) OWNERSHIP OF SHARES. The UKCorp Shareholders own
beneficially all of the shares of UKCorp Capital Stock. The UKCorp Shareholders
have full power and authority to transfer such shares of UKCorp Capital Stock to
DECorp under, pursuant to, and in accordance with, this Agreement, and such
shares are free and clear of any liens, charges, mortgages, pledges or
encumbrances and such shares are not subject to any claims as to the ownership
thereof, or any rights, powers or interest therein, by any third party and are
not subject to any preemptive or similar rights of stockholders.
(c) INVESTMENT REPRESENTATIONS AND COVENANTS.
(i) The UKCorp Shareholders represent that they
are acquiring the shares of DECorp Common Stock to be issued pursuant to Section
1.02(a) hereof for their own accounts and for investment only and not with a
view to distribution or resale thereof within the meaning of such phrase as
defined under the Securities Act. The UKCorp Shareholders shall not dispose of
any part or all of such shares of DECorp Common Stock in violation of the
provisions of the Securities Act and the rules and regulations promulgated under
the Securities Act by the SEC and all applicable provisions of state securities
laws and regulations.
(ii) The certificate or certificates representing
the shares of DECorp Common Stock shall bear a legend in substantially the form
set forth in Section 1.02(c) hereof.
(iii) The UKCorp Shareholders acknowledge being
informed that the shares of DECorp Common Stock to be issued pursuant to Section
1.02(a) hereof shall be unregistered, shall be "RESTRICTED SECURITIES" as
defined in paragraph (a) of Rule 144 under the Securities Act, and must be held
indefinitely unless (a) they are subsequently registered under the Securities
Act, or (b) an exemption from such registration is available. The UKCorp
Shareholders further acknowledge that DECorp does not have an obligation to
currently register such securities for the account of UKCorp Shareholders.
(iv) The UKCorp Shareholders acknowledge that
they have been afforded access to all material information which they have
requested relevant to their decision to acquire the shares of DECorp Common
Stock and to ask questions of DECorp's management and that, except as set forth
herein, neither DECorp nor anyone acting on behalf of DECorp has made any
representations or warranties to the UKCorp Shareholders which have induced,
persuaded, or stimulated the UKCorp Shareholders to acquire such shares of
DECorp Common Stock.
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(v) Either alone, or together with their
investment advisor(s), the UKCorp Shareholders have 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 of DECorp Common Stock, and
the UKCorp Shareholders are and will be able to bear the economic risk of the
investment in such shares of DECorp Common Stock.
(d) ORGANIZATION AND QUALIFICATION. UKCorp owns no
subsidiary or affiliate corporation or owns any interest in any other enterprise
(whether or not such enterprise is a corporation). UKCorp is a corporation duly
organized, validly existing, and in good standing under the laws of the United
Kingdom, with all requisite power and authority, and all necessary consents,
authorizations, approvals, orders, licenses, certificates, and permits of and
from, and declarations and filings with, all federal, state, local, and other
governmental authorities and all courts and other tribunals, to own, lease,
license, and use its properties and assets and to carry on the businesses in
which it is now engaged and the businesses in which it contemplates engaging.
UKCorp is duly qualified to transact the businesses in which it is engaged.
UKCorp is in good standing as a foreign corporation in every jurisdiction in
which its ownership, leasing, licensing, or use of property or assets or the
conduct of its businesses makes such qualification necessary.
(e) CAPITALIZATION. The authorized capital stock of
UKCorp consists of 10,000 ordinary shares, 5,000 of which shares are issued and
outstanding. Each of the outstanding shares of UKCorp Capital Stock is validly
authorized, validly issued, fully paid, and nonassessable, has not been issued
and is not owned or held in violation of any preemptive right of stockholders
and by the owners set forth in Schedule 1.02(b) hereof, in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
stockholders' agreements, and voting trusts. 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 UKCorp Capital Stock or any security or other
instrument convertible into, exercisable for, or exchangeable for UKCorp Capital
Stock. There is outstanding no security or other instrument convertible into or
exercisable or exchangeable for UKCorp Capital Stock.
(f) AUTHORITY. UKCorp has all requisite power and
authority to execute, deliver, and perform this Agreement. All necessary
corporate proceedings of UKCorp have been duly taken to authorize the execution,
delivery, and performance of this Agreement by UKCorp. This Agreement has been
duly authorized, executed, and delivered by UKCorp, constitutes the legal,
valid, and binding obligation of UKCorp, and is enforceable as to UKCorp in
accordance with its 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 UKCorp for
the execution, delivery, or performance of this Agreement by UKCorp. No consent
of any party to any material contract, agreement, instrument, lease, license,
arrangement, or understanding to which UKCorp 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 execution,
delivery, and performance of this 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
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on the part of UKCorp or DECorp to which it was not subject immediately before
this 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 UKCorp (or the comparable charter documents, if any, under applicable law),
or (if the provisions of this Agreement are satisfied) violate, result in a
breach of, or conflict with any law, rule, regulation, order, judgment, or
decree binding on UKCorp or to which any of its businesses, properties, or
assets are subject. Neither UKCorp nor any of its officers, directors,
employees, or agents has employed any broker or finder or incurred any liability
for any fee, commission, or other compensation payable by any person on account
of alleged employment as a broker or finder, or alleged performance of services
as a broker or finder, in connection with or as a result of this Agreement or
the other transactions contemplated hereby and in connection herewith.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 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 3.02 BROKERS AND FINDERS. Each of the parties hereto
represents, as to itself, that no agent, broker, investment banker or firm or
person is or will be entitled to any broker's or finder's fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement, except as may be otherwise set forth herein or
by separate document.
SECTION 3.03 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 proper executive
officers and/or directors of DECorp or UKCorp, as the case may be, or the
relevant UKCorp Shareholders or UKCorp Shareholders will take all such necessary
action.
SECTION 3.04 EXTENSION OF TIME; WAIVERS. At any time prior to the
Closing Date:
(a) DECorp may waive any inaccuracies in the representations and
warranties of any UKCorp Shareholders, or contained herein or in any document
delivered pursuant hereto by any UKCorp Shareholders, and (iii) waive compliance
with any of the agreements or conditions contained herein to be performed by any
UKCorp Shareholders. Any agreement on the part of DECorp to any such extension
or waiver will be valid only if set forth in an instrument, in writing, signed
on behalf of DECorp.
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(b) The UKCorp Shareholders (by action of the UKCorp
Shareholders), may waive any inaccuracies in the representations and warranties
of DECorp contained herein or in any document delivered pursuant hereto by
DECorp. Any agreement on the part of the UKCorp Shareholders and to any such
extension or waiver will be valid only if set forth in an instrument, in
writing, signed on behalf of all UKCorp Shareholders.
SECTION 3.05 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 3.05. Any notice to DECorp shall
be addressed to the attention of the Corporate Secretary. A copy of any and all
notices 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., and to Hewitsons, Xxxxxxxxxx Xxxxx, 00 Xxxxxxxxx Xxxx,
Xxxxxxxxx XX XX0 0XX, Attention: Xxxx Xxxxxxx, 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
3.05 shall be deemed given at the time of receipt thereof.
SECTION 3.06 PARTIES IN INTEREST. 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 3.07 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 3.08 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.
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SECTION 3.09 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 3.10 GOVERNING LAW.
(a) 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.
(b) EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND
OF THE FEDERAL COURTS SITTING IN THE STATE OF NEW YORK IN ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH OF THE PARTIES
AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT MUST BE LITIGATED EXCLUSIVELY IN ANY SUCH STATE OR, TO THE EXTENT
PERMITTED BY LAW, FEDERAL COURT THAT SITS IN THE COUNTY OF NEW YORK, AND
ACCORDINGLY, EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT. EACH PARTY FURTHER IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN
THE MANNER PROVIDED FOR NOTICES IN SECTION 3.05. NOTHING IN THIS AGREEMENT OR
ANY OTHER TRANSACTION DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS
AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH OF THE PARTIES (1) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.10(c).
SECTION 3.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All terms,
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, will
survive the Closing and the delivery of the shares of DECorp Common Stock to be
issued hereunder at the Closing for a period of one year after Closing,
regardless of any investigation made by or on behalf of any of the parties
hereto.
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SECTION 3.12 ASSIGNABILITY. This Agreement will not be assignable by
operation of law or otherwise and any attempted assignment of this Agreement in
violation of this subsection will be void ab initio.
SECTION 3.13 AMENDMENT. This Agreement may be amended with the approval
of the UKCorp Shareholders and the board of directors of DECorp at any time.
This Agreement may not be amended except by an instrument, in writing, signed on
behalf of each of the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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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.
OWLSTONE NANOTECH, INC.
BY /s/ Xxxxxx Xxxxxxx
-------------------------
NAME: Xxxxxx Xxxxxxx
TITLE: Director
ATTEST:
------------------------------
NAME:
TITLE: SECRETARY
[UKCORP SHAREHOLDER SIGNATURES FOLLOW]
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UKCORP SHAREHOLDERS:
ADVANCE NANOTECH LIMITED
BY: /s/ Xxxxxx Xxxxxxx
-------------------------
NAME: Xxxxxx Xxxxxxx
TITLE: Director
/s/ Xxxxxx Xxxxx
-----------------------------
XXXXXX XXXXX
/s/ Xxxx Xxxxx
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XXXX XXXXX
/s/ Xxxxx Xxxx-Xxxxxx
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XXXXX XXXX-XXXXXX
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
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SCHEDULE 1.02(B)
SHAREHOLDER NAME NUMBER OF SHARES IN NUMBER OF SHARES IN DECORP
UKCORP (POST-CLOSING)
------------------------ ------------------- --------------------------
Advance Nanotech Limited 3,000 (60%) 36,000,000 (60%)
Xxxxxx Xxxxx 630 (12.6%) 7,560,000 (12.6%)
Xxxx Xxxxx 585 (11.7%) 7,020,000 (11.7%)
Xxxxx Xxxx-Xxxxxx 585 (11.7%) 7,020,000 (11.7%)
Xxxxxxx Xxxxxx 200 (4%) 2,400,000 (4%)
Total 5,000 (100%) 60,000,000 (100%)
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