SHARE EXCHANGE AGREEMENT by and among ORGANETIX, INC. a Delaware Corporation and ADAO TELECOM, INC. a Florida Corporation and THOSE PERSONS LISTED EXCHANGING STOCKHOLDERS Dated January 24, 2007
Exhibit
99.1
by
and
among
ORGANETIX,
INC.
a
Delaware Corporation
and
ADAO
TELECOM, INC.
a
Florida
Corporation
and
THOSE
PERSONS LISTED EXCHANGING STOCKHOLDERS
Dated
January 24, 2007
THIS
SHARE EXCHANGE AGREEMENT,
made and
entered into this 24th day of January 2007 by and among Organetix, Inc., a
Delaware corporation (together with its subsidiaries, "OGTX”), ADAO Telecom,
Inc., a Florida Corporation (“ADAO”) and those stockholders of ADAO listed on
Schedule A hereto (“Exchanging Stockholders”).
Premises
A. This
Agreement provides for the acquisition of ADAO by OGTX whereby ADAO shall become
a wholly owned subsidiary of OGTX and in connection therewith, the issuance
of
73,500,000 ($.0001 par value per share) restricted shares of common stock of
OGTX equal to 53.5% of the outstanding shares of common stock after the exchange
of OGTX to the shareholders of ADAO and the raising of a maximum of $395,000
through the sale of equity at $0.03 per share prior to Closing. As further
consideration, subsequent to Closing and the increase of OGTX’s authorized
number of shares of Common Stock from 150,000,000 to 300,000,000, Adao will
receive an additional 17,000,000 shares of common stock of OGTX.
B. The
boards of directors of ADAO and OGTX have determined, subject to the terms
and
conditions set forth in this Agreement, that the transaction contemplated hereby
is desirable and in the best interests of their stockholders, respectively.
This
Agreement is being entered into for the purpose of setting forth the terms
and
conditions of the proposed acquisition.
Agreement
NOW,
THEREFORE, on the stated premises and for and in consideration of the mutual
covenants and agreements hereinafter set forth and the mutual benefits to the
parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
OGTX
As
an
inducement to and to obtain the reliance of ADAO and the Exchanging
Stockholders, OGTX represents and warrants as follows:
Section
1.1 Organization.
OGTX
is a
corporation duly organized, validly existing, and in good standing under the
laws of Delaware and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances
and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign corporation in the
jurisdictions in which the character and location of the assets owned by it
or
the nature of the business transacted by it requires qualification. As found
in
the OGTX public filings with the Securities and Exchange Commission are complete
and correct copies of the articles of incorporation, bylaws and amendments
thereto of OGTX as in effect on the date hereof. The execution and delivery
of
this Agreement does not and the consummation of the transactions contemplated
by
this Agreement in accordance with the terms hereof will not violate any
provision of OGTX’s articles of incorporation or bylaws, as amended. OGTX has
full power, authority and legal right and has taken all action required by
law,
its articles of incorporation, its bylaws or otherwise to authorize the
execution and delivery of this Agreement.
Section
1.2 Capitalization. The
authorized capitalization of OGTX consists of 150,000,000 common shares, $.0001
par value per share, and no preferred shares. As of the date of closing, OGTX
shall have approximately 149,548,667 common shares issued and outstanding.
OGTX
is presently a public company listed on the OTC Bulletin Board under the symbol
“OGTX.OB”, is up to date with all filings, and is fully compliant and in good
standing.
All
issued and outstanding shares are legally issued, fully paid and nonassessable
and are not issued in violation of the preemptive or other rights of any person.
OGTX has no other securities, warrants or options authorized or
issued.
Section
1.3 Subsidiaries
and Predecessor Corporations. OGTX
does
not have any subsidiaries and does not own, beneficially or of record, any
shares of any other corporation.
Section
1.4 Options
and Warrants. Other
than those found in Schedule
1.4,
there
are no existing options, warrants, calls or commitments of any character to
which OGTX is a party and by which it is bound.
Section
1.5 Claims,
Litigation and Proceedings. To
the
best of OGTX’s knowledge and belief, there are no actions, suits, proceedings or
investigations pending or threatened by or against OGTX, affecting OGTX or
its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign or before any arbitrator of any kind
that would have a material adverse affect on the business, operations, financial
condition or income of OGTX. OGTX does not have any knowledge of any default
on
its part with respect to any judgment, order, writ, injunction, decree, award,
rule or regulation of any court, arbitrator or governmental agency or
instrumentality or of any circumstances which, after reasonable investigation,
would result in the discovery of such a default.
Section
1.6 Material
Contract Defaults. To
the
best of OGTX's knowledge and belief, OGTX is not in default in any material
respect under the terms of any outstanding contract, agreement, lease or other
commitment which is material to the business, operations, properties, assets
or
condition of OGTX, and there is no event of default in any material respect
under any such contract, agreement, lease or other commitment in respect of
which OGTX has not taken adequate steps to prevent such a default from
occurring.
Section
1.7 No
Conflict With Other Instruments. The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust or other material contract, agreement or instrument
to
which OGTX is a party or to which any of its properties or operations are
subject.
Section
1.8 Governmental
Authorizations. To
the
best of OGTX’s knowledge and belief, OGTX has all licenses, franchises, permits
or other governmental authorizations legally required to enable OGTX to conduct
its business in all material respects as conducted on the date hereof. Except
for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent or order of, or
registration, declaration or filing with, any court or other governmental body
is required in connection with the execution and delivery by OGTX of this
Agreement and the consummation of OGTX of the transactions contemplated hereby.
OGTX is current with all of its reporting obligations of the Securities Exchange
Act of 1934, as amended.
Section
1.9 Tax
Matters; Books & Records
(a) The
books
and records, financial and others, of OGTX are in all material respects complete
and correct and have been maintained in accordance with good business accounting
practices; and
(b) OGTX
has
no liabilities with respect to the payment of any country, federal, state,
county, local or other taxes (including any deficiencies, interest or
penalties).
Section
1.10 Information. The
information concerning OGTX as set forth in this Agreement is complete and
accurate in all material respects and does not contain any untrue statement
of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not
misleading.
Section
1.11 Title
and Related Matters. OGTX
owns
free and clear of any liens, claims, encumbrances, royalty interests or other
restrictions or limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with OGTX's business. No third party has
any
right to, and OGTX had not received any notice of infringement of or conflict
with asserted rights of others with respect to any product, technology, data,
trade secrets, know-how, proprietary techniques, trademarks, service marks,
trade names or copyrights which, singly or in the aggregate, if the subject
of
an unfavorable decision, ruling or finding, would have a materially adverse
affect on the business, operations, financial conditions or income of OGTX
or
any material portion of its properties, assets or rights.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES
OF
ADAO
As
an
inducement to, and to obtain the reliance of OGTX, ADAO represents and warrants
as follows:
Section
2.1 Organization.
ADAO is
a corporation duly organized, validly existing and in good standing under the
laws of Florida and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances
and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign entity in the country or
states in which the character and location of the assets owned by it or the
nature of the business transacted by it requires qualification. Annexed hereto
as Schedule
2.1
are
complete and correct copies of the articles of incorporation, bylaws and
amendments thereto of ADAO as in effect on the date hereof. Such corporate
formation documents are complete and correct as in effect on the date hereof.
The execution and delivery of this Agreement does not and the consummation
of
the transactions contemplated by this Agreement in accordance with the terms
hereof will not, violate any provision thereof. ADAO has full power, authority
and legal right and has taken all action required by law, its charter or
otherwise to authorize the execution and delivery of this
Agreement.
Section
2.2 Capitalization. The
authorized capitalization of ADAO consists of ____10,000_____ shares of common
stock, $.__.01_____ par value and no preferred shares. All issued and
outstanding ADAO shares have been legally issued and are
nonassessable.
Section
2.3 Subsidiaries. ADAO
does
not have any subsidiaries and does not own, beneficially or of record, any
shares of any other corporation.
Section
2.4 Tax
Matters; Books & Records
(a) The
books
and records, financial and others, of ADAO are in all material respects complete
and correct and have been maintained in accordance with good business accounting
practices; and [Financial Statements to be annexed].
|
(b)
|
ADAO
has no liabilities with respect to the payment of taxes of any kind
(including any deficiencies, interest or
penalties).
|
|
(c)
|
All
material assets of ADAO are listed herein and attached as Schedule
2.4(c).
|
|
(d)
|
All
books and records are in auditable condition and may be audited without
incurring undue time or expense.
|
Section
2.5 Information. The
information concerning ADAO as set forth in this Agreement is complete and
accurate in all material respects and does not contain any untrue statement
of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not
misleading.
Section
2.6 Title
and Related Matters. ADAO
has
good and marketable title to and, except as stated herein, is the sole and
exclusive owner of all of its properties, licenses, inventory, interests in
properties and assets, real and personal (collectively, the "Assets"), free
and
clear of all liens, pledges, charges or encumbrances. ADAO owns free and clear
of any liens, claims, encumbrances, royalty interests or other restrictions
or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized
in
connection with ADAO's business. No third party has any right to, and ADAO
had
not received any notice of infringement of or conflict with asserted rights
of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of ADAO or any material portion
of
its properties, assets or rights.
Section
2.7 Litigation
and Proceedings. There
are
no actions, suits or proceedings pending or, to the best of ADAO's knowledge
and
belief, threatened by or against or affecting ADAO, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign
or before any arbitrator of any kind that would have a material adverse effect
on the business, operations, financial condition, income or business prospects
of ADAO. ADAO does not have any knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or instrumentality.
Section
2.8 Contracts. At
Closing:
(a) ADAO
will
not be a party to any contract, agreement, commitment or instrument or subject
to any charter or other corporate restriction or any judgment, order, writ,
injunction, decree or award which materially and adversely affects, or in the
future may (as far as ADAO can now foresee) materially and adversely affect,
the
business, operations, properties, assets or conditions of ADAO; and
(b) Other
than the agreements found in Schedule
2.8(b)
ADAO is
not a party to any material oral or written: (i) contract for the employment
of
any officer or employee; (ii) profit sharing, bonus, deferred compensation,
stock option, severance pay, pension, benefit or retirement plan, agreement
or
arrangement; (iii) agreement, contract or indenture relating to the borrowing
of
money; (iv) guaranty of any obligation for the borrowing of money or otherwise,
excluding endorsements made for collection and other guaranties of obligations,
which, in the aggregate exceeds $1,000; (v) consulting or other similar contract
with an unexpired term of more than one year or providing for payments in excess
of $10,000 in the aggregate; (vi) collective bargaining agreement; (vii)
contract, agreement, or other commitment involving payments by it for more
than
$10,000 in the aggregate.
Section
2.9 No
Conflict With Other Instruments. The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust or other material contract, agreement or instrument
to
which ADAO is a party or to which any of its properties or operations are
subject.
Section
2.10 Material
Contract Defaults. To
the
best of ADAO's knowledge and belief, ADAO is not in default in any material
respect under the terms of any outstanding contract, agreement, lease or other
commitment which is material to the business, operations, properties, assets
or
condition of ADAO, and there is no event of default in any material respect
under any such contract, agreement, lease or other commitment in respect of
which ADAO has not taken adequate steps to prevent such a default from
occurring.
Section
2.11 Governmental
Authorizations. To
the
best of ADAO's knowledge, ADAO has all licenses, franchises, permits and other
governmental authorizations that are legally required to enable it to conduct
its business operations in all material respects as conducted on the date
hereof.
Section
2.12 Compliance
With Laws and Regulations. To
the
best of ADAO's knowledge and belief, ADAO has complied with all applicable
statutes and regulations, except to the extent that noncompliance would not
materially and adversely affect the business; operations, properties, assets
or
condition of ADAO or would not result in ADAO's incurring any material
liability.
Section
2.13 Material
Transactions or Affiliations. ADAO
has
provided OGTX with copies of all material contracts to which ADAO is a party
and
which are to be performed in whole or in part after the date hereof. ADAO has no
commitment, whether written or oral, to lend any funds to, borrow any money
from
or enter into any other material transactions with, any of its directors or
person owning of record, or known by ADAO to own beneficially, ten percent
(10%)
or more the issued and outstanding Common Stock of ADAO and which is to be
performed in whole or in part after the date hereof. ADAO has no commitment,
whether written or oral, to lend and funds to, borrow and money from or enter
into any other material transactions with, any such affiliated
person.
Section
2.14 Labor
Relations. ADAO
has
never had a work stoppage resulting from labor problems.
ARTICLE
III
EXCHANGE
PROCEDURE AND OTHER CONSIDERATION
Section
3.1 Share
Exchange/Delivery of ADAO Securities. Upon
due
and complete execution by the Exchanging Stockholders of the Subscription
Agreements (“Subscription Agreements”) in the form attached as Schedule
3.1,
the
ADAO Exchanging Stockholders will deliver their shares of ADAO Common Stock
to
OGTX and will relinquish all rights, title and interest to and in the ADAO
Common Stock held by them and hereto receive 7,350
shares
of OGTX common stock for each share of ADAO Common Stock delivered
with any
resulting fractional figure less than 1 share being rounded down.
Section
3.2 Transfer
of ADAO Common Shares. In
exchange for all of the ADAO Common Shares tendered pursuant to Section 3.1,
OGTX shall issue an aggregate of 73,500,000 shares of Common Stock equal to
53.5% of the total outstanding to the shareholders of ADAO. Such percentage
shall be on a fully-diluted basis which includes the completion of equity raise
in the amount of $395,000, of which $300,000 shall be used for the development
of the Prototype as defined in Section 3.3 and $95,000 shall be used for
expenses related to the transaction contemplated by this Agreement and any
overages related to the development of the Prototype which are mutually agreed
to between the parties hereto. Such shares shall be "restricted" in accordance
with Rule 144 of the Securities Act of 1933, as amended (“Securities Act”). The
transfer of stock referred to in this Section 3.2 shall be subject to the terms
of the Subscription Agreement attached as Schedule
3.2.
See
Schedule 3.4 - Use of Funds
Section
3.3 Consideration
for Development of Prototype.
Within 5
days from receipt of Adao signatures hereof, OGTX shall transfer $300,000 to
ADAO which shall be used specifically to develop the cellular phone in
accordance with the specifications found attached hereto as Schedule
3.3
(“Prototype”). It is agreed that upon completion of this Share Exchange
Agreement, OGTX/the “Company”, shall own all rights, title and interest to the
Prototype, including the Prototype itself, and that any documentation effecting
title to the Prototype and the intellectual property related thereto shall
be
promptly assigned to the company.
Section
3.4 Events
Prior to Closing. Upon
execution hereof or as soon thereafter as practicable, management of ADAO and
OGTX shall execute, acknowledge and deliver (or shall cause to be executed,
acknowledged and delivered) any and all certificates, opinions, financial
statements, schedules, agreements, resolutions rulings or other instruments
required by this Agreement to be so delivered, together with such other items
as
may be reasonably requested by the parties hereto and their respective legal
counsel in order to effectuate or evidence the transactions contemplated hereby,
subject only to the conditions to Closing referenced below.
Section
3.5 Closing. The
closing ("Closing") of the transactions contemplated by this Agreement shall
be
no later than May 30th,
2007
unless otherwise agreed by OGTX and ADAO.
Section
3.6 Officers
of OGTX After Acquisition.
At the
Closing, OGTX will cause the current officers of OGTX to resign and appoint:
|
(a)
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ as Chief Executive Officer of
OGTX;
|
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(b)
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇ as President; and
|
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(c)
|
_______________
as Chief Financial Officer.
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Section
3.7 Board
of Directors of OGTX After Acquisition.
At the
Closing, the current directors of OGTX will resign and cause the following
to be
elected directors:
|
(a)
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, as Chairman;
|
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(b)
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇;
|
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(c)
|
________________;
|
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(d)
|
________________;
and
|
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(e)
|
One
designee of OGTX.
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ARTICLE
IV
SPECIAL
COVENANTS
Section
4.1 Access
to Properties and Records. It
is
acknowledged by each of OGTX and ADAO, that its officers and authorized
representatives have been afforded full access to the other’s properties, books
and records of ADAO and OGTX as the case may be, so that each had full
opportunity to make such reasonable investigation as it desired to make of
the
affairs of the other and each has furnished the other with such additional
financial and operating data and other information as to the business and
properties of ADAO and OGTX as the case may be, as the other shall from time
to
time reasonably request.
Section
4.2 Availability
of Regulation D. Each
of
the parties acknowledge that the common stock of OGTX to be issued pursuant
to
this Agreement will be "restricted securities," as that term is defined in
the
Securities Act of 1933, as amended. OGTX is under no obligation to register
such
shares under the Securities Act, or otherwise. The covenants set forth in this
Section 4.2 shall survive the Closing and the consummation of the transactions
herein contemplated.
Section
4.3 Special
Covenants and Representations Regarding the ADAO Common Shares to be Issued
in
the Exchange. The
consummation of this Agreement, including the issuance of the OGTX Common Shares
to the Shareholders of ADAO as contemplated hereby, constitutes the offer and
sale of securities under the Securities Act of 1933, and applicable state
statutes. Such transaction shall be consummated in reliance on exemptions from
the registration and prospectus delivery requirements of such statute which
depends, inter alia, upon the circumstances under which the ADAO Shareholders
acquire such securities.
Section
4.4 Third
Party Consents. ADAO
and
OGTX agree to cooperate with each other in order to obtain any required third
party consents to this Agreement and the transactions herein
contemplated.
Section
4.5 Indemnification.
(a) ADAO
hereby agrees to indemnify OGTX and each of the officers, agents and directors
of OGTX against any loss, liability, claim, damage or expense (including, but
not limited to, any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against and litigation, commenced or
threatened or any claim whatsoever), to which it or they may become subject
to
arising out of or based on any inaccuracy appearing in or misrepresentation
made
in this Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated hereby
and
termination of this Agreement; and
(b) OGTX
hereby agrees to indemnify ADAO and each of the officers, agents, directors
and
current shareholders of ADAO as of the Closing against any loss, liability,
claim, damage or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened or any claim whatsoever), to which
it or
they may become subject arising out of or based on any inaccuracy appearing
in
or misrepresentation made in this Agreement. The indemnification provided for
in
this Section shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF OGTX
The
obligations of OGTX under this Agreement are subject to the satisfaction, at
or
before the Closing, of the following conditions:
Section
5.1 Accuracy
of Representations. The
representations and warranties made by ADAO in this Agreement were true when
made and shall be true at the Closing with the same force and effect as if
such
representations and warranties were made at the Closing (except for changes
therein permitted by this Agreement), and ADAO shall have performed or complied
with all covenants and conditions required by this Agreement to be performed
or
complied with by ADAO prior to or at the Closing.
Section
5.2 Shareholder
Approval. A
minimum
of 95% of the Shareholders of ADAO shall have approved this Agreement and the
transactions contemplated herein.
Section
5.3 No
Material Adverse Change. Prior
to
the Closing, there shall not have occurred any material adverse change in the
financial condition, business or operations of nor shall any event have occurred
which, with the lapse of time or the giving of notice, may cause or create
any
material adverse change in the financial condition, business or operations
or
ADAO.
Section
5.4 Delivery
of Prototype. No
less
than 5 days prior to Closing, the Prototype shall be delivered to OGTX in its
current operating state.
Section
5.5 Sales
Opportunities No
less
than 5 days prior to Closing, Adao will deliver the results of its best efforts
to secure Letters of Intent (LOI’s) and potentially Conditional Advanced
Purchase Orders (CAPO’s) that refer to sales commitments of the new Adao
cellular product.
Section
5.6 Audited
Financial Statements. Prior
to
or contemporaneous with the Closing, ADAO shall have delivered financial
statements audited in accordance with GAAP, reflecting no material liabilities
and in satisfaction of the requirements of the 1934 Exchange Act as the Company
is required to file a current report on Form 8-K with the Securities and
Exchange Commission within 4 days of Closing. Such report must include, among
others, consolidated, audited financial statements for the past two years of
operations and basic information regarding ADAO’s business and its
management.
Section
5.7 Other
Items. OGTX
shall have received such further documents, certificates or instruments relating
to the transactions contemplated hereby as OGTX may reasonably
request.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF ADAO
The
obligations of ADAO and the Exchanging Stockholders under this Agreement are
subject to the satisfaction, at or before the Closing (unless otherwise
indicated herein), of the following conditions:
Section
6.1 Accuracy
of Representations. The
representations and warranties made by OGTX in this Agreement were true when
made and shall be true as of the Closing (except for changes therein permitted
by this Agreement) with the same force and effect as if such representations
and
warranties were made at and as of the Closing, and OGTX shall have performed
and
complied with all covenants and conditions required by this Agreement to be
performed or complied with by OGTX prior to or at the Closing.
Section
6.2 No
Material Adverse Change. Prior
to
the Closing, there shall not have occurred any material adverse change in the
financial condition, business or operations or nor shall any event have occurred
which, with the lapse of time or the giving of notice, may cause or create
any
material adverse change in the financial condition, business or operations
of
OGTX.
Section
6.3 Transfer
of Funds for Prototype Development. Within
5
days of Adao signing this Agreement, OGTX shall have transferred $300,000.00
to
ADAO for the development of the Prototype.
ARTICLE
VII
OBLIGATION
OF CERTAIN PARTIES AFTER CLOSING
Section
7.1 Financing Post-Closing.
Assuming
OGTX has taken the necessary steps to increase the authorized number of shares
of common stock accordingly, Lusierna Asset Management Ltd. (“Lusierna”) and its
agents shall make its best efforts to raise between $3,500,000 and $4,500,000
prior to June 15, 2007 (“Financing”). Upon execution of this agreement, the
current ADAO officers agree to promptly enter into an agreement with Lusierna
and its agents if Lusierna so desires, pursuant to which Lusierna shall provide
investor relations services to OGTX for a period of 12 months at a monthly
fee
of $10,000. This monthly fee will be accrued and payment deferred until such
time as the Post-Closing financing referenced above, is completed.
Section
7.2 Public Filings and Name Change.
Within 4
business days of Closing, the post-Exchange OGTX shall prepare and file a
current report on Form 8-K incorporating all of the required disclosure
information therein. Further, as soon as practicable after Closing, the
post-Exchange OGTX shall file with the State of Delaware an amendment to its
articles of incorporation increasing the authorized number of shares of Common
Stock to 300,000,000 and changing the name to “Adao Wireless, Inc.” or other
similar name if that is not available.
ARTICLE
VIII
MISCELLANEOUS
Section
8.1 Brokers
and Finders.
There
are no broker or finder’s fees due to any party from either OGTX or ADAO.
Section
8.2 Law,
Forum and Jurisdiction. This
Agreement shall be construed and interpreted in accordance with the laws of
the
State of Delaware, United States of America. Jurisdiction is New
York.
Section
8.3 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail
or
certified mail, postage prepaid, or by prepaid telegram addressed as
follows:
| If to OGTX: |
Organetix,
Inc.
|
▇▇.
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, CPA
President
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| If to ADAO: | ADAO Telecom, Inc. |
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Chief
Executive Officer
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| With a copy to: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq. |
Rubin,
Bailin, Ortoli, LLP
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or
such
other addresses as shall be furnished in writing by any party in the manner
for
giving notices hereunder, and any such notice or communication shall be deemed
to have given as of the date so delivered, mailed or telegraphed.
Section
8.4 Schedules;
Knowledge. Each
party is presumed to have full knowledge of all information set forth in the
other party's schedules delivered pursuant to this Agreement.
Section
8.5 Third
Party Beneficiaries. This
contract is solely among ADAO, the Exchanging Stockholders and OGTX and except
as specifically provided, no director, officer, stockholder, employee, agent,
independent contractor or any other person or entity shall be deemed to be
a
third party beneficiary of this Agreement.
Section
8.6 Entire
Agreement. This
Agreement represents the entire agreement between the parties relating to the
subject matter hereof. This Agreement alone fully and completely expresses
the
agreement of the parties relating to the subject matter hereof. There are no
other courses of dealing, understanding, agreements, representations or
warranties, written or oral, except a set forth herein. This Agreement may
not
be amended or modified, except by a written agreement signed by all parties
hereto.
Section
8.7 Survival;
Termination. The
representations, warranties and covenants of the respective parties shall
survive the Closing and the consummation of the transactions herein contemplated
for a period of 24 months.
Section
8.8 Counterparts. This
Agreements may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section
8.9
Amendment or Waiver. Every
right and remedy provided herein shall be cumulative with every other right
and
remedy, whether conferred herein, at law, or in equity, and may be enforced
concurrently herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same or any other
default then, theretofore, or thereafter occurring or existing. At any time
prior to the Closing, this Agreement may be amended by a writing signed by
all
parties hereto, with respect to any of the terms contained herein, and any
term
or condition of this Agreement may be waived or the time for performance hereof
may be extended by a writing signed by the party or parties for whose benefit
the provision is intended.
Section
8.10 Incorporation
of Recitals. All
of
the recitals hereof are incorporated by this reference and are made a part
hereof as though set forth at length herein.
Section
8.11 Expenses. Each
party herein shall bear all of their respective costs and expenses incurred
in
connection with the negotiation of this Agreement and in the consummation of
the
transactions provided for herein and the preparation thereof.
Section
8.12 Headings;
Context. The
headings of the sections and paragraphs contained in this Agreement are for
convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of this Agreement.
Section
8.13 Benefit. This
Agreement shall be binding upon and shall insure only to the benefit of the
parties hereto, and their permitted assigns hereunder. This Agreement shall
not
be assigned by any party without the prior written consent of the other party.
Section
8.14 Severability. In
the
event that any particular provision or provisions of this Agreement or the
other
agreements contained herein shall for any reason hereafter be determined to
be
unenforceable, or in violation of any law, governmental order or regulation,
such unenforceability or violation shall not affect the remaining provisions
of
such agreements, which shall continue in full force and effect and be binding
upon the respective parties hereto.
Section
8.15 Failure
of Conditions; Termination. In
the
event of any of the conditions specified in this Agreement shall not be
fulfilled on or before the Closing, either of the parties have the right either
to proceed or, upon prompt written notice to the other, to terminate and rescind
this Agreement without liability to any other party. The election to proceed
shall not affect the right of such electing party reasonably to require the
other party to continue to use its efforts to fulfill the unmet
conditions.
Section
8.16 No
Strict Construction. The
language of this Agreement shall be construed as a whole, according to its
fair
meaning and intendment, and not strictly for or against wither party hereto,
regardless of who drafted or was principally responsible for drafting the
Agreement or terms or conditions hereof.
Section
8.17 Execution
Knowing and Voluntary. In
executing this Agreement, the parties severally acknowledge and represent that
each: (a) has fully and carefully read and considered this Agreement; (b) has
been or has had the opportunity to be fully apprized of its attorneys of the
legal effect and meaning of this document and all terms and conditions hereof;
and (c) is executing this Agreement voluntarily, free from any influence,
coercion or duress of any kind.
IN
WITNESS WHEREOF,
the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, and entered into as of the date
first above written.
ORGANETIX,
INC., INC.
By:
/s/
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President
LUSIERNA ASSET MANAGEMENT, solely with respect to Section 7.1
By:
/s/
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President
ADAO TELECOM, INC.
By:
/s/
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Chief
Executive Officer
By:
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President
Schedule
1.4
List
of OGTX Warrants
Schedule
2.1
ADAO
Articles of Incorporation, Bylaws and Amendments (as
applicable)
Schedule
2.4(c)
List
of ADAO Assets
Schedule
2.8(b)
Material
Contracts
Schedule
3.1
Form
of Subscription Agreement
Schedule
3.3
Prototype
Specification Page
Schedule
3.4
Use
of Funds
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Prototype
Development Funds
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$
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300,000
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Prototype
Development
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Engineering
& Design
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$
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165,000
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Software
Development
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$
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25,000
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Plastics
& Case Design (SLA's)
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$
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10,000
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PCB
Design & Configuration
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$
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50,000
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Testing
& NRE's
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TBD
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$
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250,000
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SG&A
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Sales,
General, & Administrative Expense
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$
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50,000
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