SHARE EXCHANGE AGREEMENT by and among ORGANETIX, INC. a Delaware Corporation and KIDFITNESS, INC. a New York Corporation and THOSE PERSONS LISTED AS EXCHANGING STOCKHOLDERS Dated August 13, 2007
Exhibit
99.1
by
and
among
ORGANETIX,
INC.
a
Delaware Corporation
and
KIDFITNESS,
INC.
a
New
York Corporation
and
THOSE
PERSONS LISTED AS EXCHANGING STOCKHOLDERS
Dated
August 13, 2007
1
THIS
SHARE EXCHANGE AGREEMENT (the
“Agreement”), made and entered into this 13th
day of
August 2007 by and among Organetix, Inc., a Delaware corporation ("OGTX”),
Kidfitness Inc., a New York Corporation (“Kid Fitness”), and those stockholders
of Kid Fitness listed on Schedule A hereto (“Exchanging
Stockholders”).
Premises
A. This
Agreement provides for the acquisition of Kid Fitness by OGTX whereby Kid
Fitness shall become a wholly owned subsidiary of OGTX and in connection
therewith, the issuance of restricted shares of common stock of OGTX equal
to
64% of the outstanding shares of common stock in exchange for 100% of the
outstanding common stock of Kid Fitness and before the raising of a minimum
of
$7,000,000 and a maximum of $12,000,000 through the sale of equity at a price
to
be determined.
B. The
boards of directors of Kid Fitness 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.
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 Kid Fitness and the Exchanging
Stockholders, OGTX represents and warrants as follows:
Secton
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 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. The OGTX public filings with the Securities and
Exchange Commission contain current, complete and correct copies of the articles
of incorporation, bylaws and amendments thereto of OGTX as in effect on the
date
hereof.
Secton
1.2 Authorization
and Enforceability. OGTX
has
full power and authority to enter into and perform this Agreement and the other
transaction documents contemplated herein, including, without limitation, the
Employment Agreements and Promissory Notes (the “Operative Agreements”) in
accordance with their terms, and the execution, delivery and performance of
this
Agreement and the Operative Agreements by OGTX have been duly authorized by
the
shareholders and Board of Directors of OGTX, no other corporate action on the
part of OGTX or its shareholders being necessary. This Agreement and, at the
time of execution, each of the Operative Agreements shall have been duly and
validly executed and delivered by OGTX and constitutes, and upon the execution
and delivery by OGTX of the Operative Agreements to which it is a party, each
such Operative Agreement will constitute, the legal, valid and binding
obligation of OGTX, enforceable against OGTX in accordance with its terms,
(i) except as such enforcement may be limited by bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors’ rights generally and
(ii) the availability of the remedy of specific performance or injunctive
or other forms of equitable relief may be subject to equitable defenses and
would be subject to the discretion of the Court before which any proceeding
therefore may be brought.
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1.3 No
Violation of Laws or Agreements. None
of
the execution and delivery by OGTX of this Agreement or the Operative
Agreements, the consummation of the transactions contemplated hereby or the
compliance with or fulfillment of the terms, conditions and provisions hereof
or
thereof by OGTX will (a) contravene any provision of the certificate of
incorporation or bylaws of OGTX, (b) conflict with, result in a breach of or
constitute a default or an event of default (or an event that might, with the
passage of time or the giving of notice or both, constitute a default) under
any
of the terms of or result in the termination or loss of any right (or give
others the right to cause such a termination or loss) under, any license,
indenture, mortgage or any other contract, agreement or instrument to which
OGTX
is a party or by which OGTX may be bound or affected, (c) violate any law or
violate any judgment or order of any Governmental Authority to which OGTX is
subject, (d) result in the creation or imposition of any liens or other
encumbrances upon any of assets of OGTX or give to others any interests or
rights therein or (e) result in the maturation or acceleration of any liability
of OGTX (or give others the right to cause such a maturation or acceleration).
Secton
1.4 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 hereof, OGTX has
71,199,112 common shares issued and outstanding. OGTX is presently a public
reporting 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.
OGTX has no other securities, warrants or options authorized or
issued.
All
issued and outstanding shares are validly authorized, legally issued, fully
paid
and nonassessable and are not issued in violation of the preemptive or other
rights of any person.
Secton
1.5 Subsidiaries
and Predecessor Corporations.
OGTX
does not have any subsidiaries and does not own, beneficially or of record,
any
shares of any other corporation.
Secton
1.6 Options,
Warrants, Etc.
There
are no outstanding (i) options, warrants, agreements or other rights for the
acquisition of any of the unissued shares of the Company’s capital stock, (ii)
securities or other obligations of OGTX which are convertible into or
exchangeable for such shares or (iii) options, sale agreements, shareholders
agreements, pledges, proxies, voting trusts, powers of attorney, restrictions
on
transfers or other agreements or instruments which relate to the ownership,
voting or transfer of any of OGTX’s shares.
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1.7 Claims,
Litigation and Proceedings.
There
are
no actions, suits, proceedings, audits, reviews, claims or investigations of
any
nature or kind whatsoever 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. OGTX is not in default with respect to any judgment,
order, writ, injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality.
Secton
1.8 Undisclosed
Liabilities. OGTX
does
not have any debts, obligations or liabilities, absolute, fixed, contingent
or
otherwise, of any nature whatsoever, whether due or to become due (including
unasserted claims), whether incurred directly or by any predecessor thereto,
and
whether arising out of any act, omission, transaction, circumstance, sale of
goods or services, state of facts or other condition that occurred or existed
on
or before the Balance Sheet included in its Form 10QSB report for the quarterly
period ended March 31, 2007 (the
“OGTX Balance Sheet”), whether or not then known, due or payable, except:
(a) those reflected or reserved against on the OGTX Balance Sheet in the
amounts shown thereon, (b) those of the same nature as those set forth on the
OGTX Balance Sheet that have arisen in the ordinary course of business of OGTX
after the date of the OGTX Balance Sheet through the date hereof, and none
of
which, individually or in the aggregate, has or will have a material adverse
effect on the business of OGTX, and none of which is a liability for breach
of
contract or warranty or has arisen out of tort, infringement, violation of
law
or a lawsuit or threat hereof.
Secton
1.9 Contracts;
Compliance. Schedule
1.9,
to be
delivered within 14 days following the date hereof, sets forth a true, accurate
and complete list of each OGTX Contract to which OGTX is a party. OGTX shall
with such Schedule deliver to Kid Fitness true, accurate and complete copies
of
each of the OGTX Contracts. All OGTX Contracts have been duly authorized and
delivered by OGTX, are in full force and effect and constitute the valid and
binding obligations of each party thereto and are enforceable in accordance
with
their respective terms against each party thereto. As to the OGTX Contracts,
there are no existing breaches or defaults by OGTX and, to OGTX’s knowledge, by
any other party thereunder, and no event, act or omission has or, as a result
of
the consummation of the transactions contemplated hereby or by any Operative
Agreement, will occur which (with or without notice, lapse of time or the
happening or occurrence of any other event) would result in a material default
thereunder, give cause for termination thereof or permit the acceleration of
any
obligation thereunder. As used herein, “OGTX Contract” means any agreement of
any kind or nature whatsoever by which OGTX is bound, whether written or oral,
and all amendments thereto, including, without limitation, any loan or credit
agreement, note, bond, mortgage, letter of credit, indenture, understanding,
lease, sublease, purchase order, arrangement, sales order or other agreement,
distribution agreement, employment agreement, commitment, instrument, government
approval, permit , concession, franchise, license or capital lease.
Secton
1.10 No
Conflict With Other Instruments.
The
execution of this Agreement, the Operative Agreements and the consummation
of
the transactions contemplated by this Agreement and the Operative Agreements
will not result in the breach of any term or provision of, or constitute an
event of default under, any indenture, mortgage, deed of trust or other
contract, agreement or instrument to which OGTX is a party or to which any
of
its properties or operations are subject.
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1.11 Governmental
Authorizations.
OGTX
has
all licenses, franchises, permits or other governmental authorizations
(collectively, “Permits”) legally required to enable OGTX to conduct its
business as conducted on the date hereof. Such Permits are in full force and
effect. OGTX has not received any notice from any governmental entity that
it
intends to cancel, revoke, terminate, suspend, or not renew any such Permit.
OGTX is in compliance with all Permits. 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, the Operative Documents
and the consummation of OGTX of the transactions contemplated hereby and
thereby. OGTX is current with all of its reporting obligations of the Securities
Exchange Act of 1934, as amended.
Secton
1.12 Books
& Records.
The
books
and records, financial and others, of OGTX are complete and correct and have
been prepared and maintained in accordance with Generally Accepted Accounting
Principles (“GAAP”) applied on a consistent basis throughout the periods
involved.
Secton
1.13 Information.
None of
the representations or warranties of OGTX contained herein, none of the
information contained in the Schedules referred to herein and none of the other
information or documents furnished or to be furnished to Kid Fitness or any
of
their representatives by OGTX or its representatives pursuant to the terms
of
this Agreement, is false or misleading in any material respect or omits to
state
a fact herein or therein necessary to make the statements herein or therein
not
misleading.
Secton
1.14 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 (collectively, “Liens”) all
of its assets, including, without limitation, procedures, techniques, marketing
plans, business plans, methods of management or other information and assets
utilized in connection with OGTX's business. No third party has any right to,
and OGTX has not received any notice of infringement of or conflict with
asserted rights of others with respect to any asset, product, technology, data,
trade secrets, know-how, proprietary techniques, trademarks, service marks,
trade names or copyrights of OGTX.
Secton
1.15 Tax
Matters. OGTX
has
timely filed when due all Tax Returns (defined below) that it was required
to
file. All Taxes (defined below) of OGTX (whether or not shown on any Tax Return)
which have become due, or will become due, at any time on or prior to and
including the date hereof have been or will on the date hereof be, duly paid
or
adequately reserved for (in accordance with generally accepted principles
consistent with past practice). All Tax Returns are true, complete and correct
and were made on a proper basis. OGTX has not executed or filed with the
Internal Revenue Service or any other taxing authority, or is currently the
beneficiary of, any agreement or other document abating, extending or having
the
effect of abating or extending the period for assessment or collection of,
or
waiving any statute of limitations in respect of, any Taxes. There are no Tax
audits or investigations pending or, to the knowledge of the OGTX, threatened
with respect to the OGTX. There is no Tax deficiency proposed or, to the
knowledge of OGTX, threatened against OGTX and there has not been any question
or issue raised by any taxing authority in connection with OGTX’s Tax Returns.
No person currently holds, with respect to Tax Returns filed, powers of attorney
from OGTX.
5
No
claim
has been made by an authority in a jurisdiction where OGTX does not file Tax
Returns that it is or may be subject to taxation by that jurisdiction. There
are
no Liens on any of the assets of OGTX that arose in connection with any failure
(or alleged failure) to pay any Tax.
“Tax”
means any federal, state, local, or foreign income, unincorporated business,
gross receipts, license, payroll, employment, excise, severance, occupation,
premium, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, water, sewer, assessment for
improvements, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum or estimated tax, including any interest,
penalty, or addition thereto, whether disputed or not and “Tax Return” means any
return, declaration, report, claim for refund, or information return or
statement relating to Taxes, including any schedule or attachment thereto,
and
including any amendment thereof.
Secton
1.16 Compliance
with Applicable Laws; Permits. OGTX
is
not and has not in the past been in violation or breach of, and the business
and
operations of OGTX comply in all respects with, all governing federal, state,
local or foreign laws, regulations and ordinances (collectively
“Laws”).
Secton
1.17 Insurance. Schedule
1.17
to be
delivered within 14 days of the date hereof sets forth all of the current
insurance policies (including the names and addresses of the insurers, names
of
the persons to whom such policies have been issued, the expiration dates
thereof, the annual premiums and payment terms thereof, whether it is a “claims
made” or an “occurrence” policy and a brief description of the interests insured
thereby) that insure the business of OGTX. All potential claims and/or potential
losses have been reported to the appropriate insurance carrier.
Secton
1.18 Finder’s
Fees. Neither
OGTX nor any of its officers, directors or employees has employed any broker,
finder or investment banker or incurred any liability for any brokerage fees,
commissions or finder’s fees in connection with the transactions contemplated
herein.
Xxxxxx
0.00 XXX
Reports and Financial Statements. OGTX
shall have delivered to Kid Fitness prior to the Closing a true and complete
copy of each form, report, schedule, registration statement, definitive proxy
statement and other document (together with all amendments thereof and
supplements thereto) filled by OGTX with the Securities and Exchange Commission
(the "SEC") since January 1, 2004 (as
such
documents have been amended or supplemented, the "OGTX SEC Reports"), which
are
all the documents OGTX was required to file with the SEC since such date. As
of
their respective dates, the OGTX SEC Reports (a) complied as to form in all
material respects with the requirements of the Securities Act of 1933, as
amended or the Securities Exchange Act of 1934, as amended, as the case may
be,
and the respective rules and regulations promulgated thereunder, and (b) did
not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements included in the OGTX SEC Reports (the
"
OGTX Financial Statements") complied as to form in all material respects with
the published rules and regulations of the SEC with respect thereto, were
prepared in accordance with GAAP applied on a consistent basis during the
periods involved (except as indicated therein or in notes thereto or as
permitted by Form 10-QSB of the SEC) and fairly present the financial position
of OGTX as at the respective dates thereof and the results of operations and
cash flows for the respective periods then ended.
6
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES
OF
KID FITNESS
As
an
inducement to, and to obtain the reliance of OGTX, Kid Fitness represents and
warrants as follows:
Secton
2.1 Organization.
Kid
Fitness is a corporation duly organized, validly existing and in good standing
under the laws of New York 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 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. Schedule
2.1
to be
delivered within 14 days of the date hereof shall contain complete and correct
copies of the articles of incorporation, bylaws and amendments thereto of Kid
Fitness as in effect on the date hereof.
Secton
2.2 Authorization
and Enforceability.
Kid
Fitness has full power and authority to enter into and perform this Agreement
and the Operative Agreements in accordance with their terms, and the execution,
delivery and performance of this Agreement and the Operative Agreements by
Kid
Fitness have been duly authorized by the shareholders and Board of Directors
of
Kid Fitness, no other corporate action on the part of Kid Fitness or its
shareholders being necessary. This Agreement and, at the time of execution,
each
of the Operative Agreements shall have been duly and validly executed and
delivered by Kid Fitness and constitutes, and upon the execution and delivery
by
Kid Fitness of the Operative Agreements to which it is a party, such Operative
Agreement will constitute, the legal, valid and binding obligation of Kid
Fitness, enforceable against Kid Fitness in accordance with its terms,
(i) except as such enforcement may be limited by bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors’ rights generally and
(ii) the availability of the remedy of specific performance or injunctive
or other forms of equitable relief may be subject to equitable defenses and
would be subject to the discretion of the Court before which any proceeding
therefore may be brought.
Secton
2.3 No
Violation of Laws or Agreements.
None
of
the execution and delivery by Kid Fitness of this Agreement or the Operative
Agreements, the consummation of the transactions contemplated hereby or the
compliance with or fulfillment of the terms, conditions and provisions hereof
or
thereof by Kid Fitness will (a) contravene any provision of the certificate
of
incorporation or bylaws of Kid Fitness, (b) conflict with, result in a breach
of
or constitute a default or an event of default (or an event that might, with
the
passage of time or the giving of notice or both, constitute a default) under
any
of the terms of or result in the termination or loss of any right (or give
others the right to cause such a termination or loss) under, any license,
indenture, mortgage or any other contract, agreement or instrument to which
Kid
Fitness is a party or by which Kid Fitness may be bound or affected, (c) violate
any law or violate any judgment or order of any governmental authority to which
Kid Fitness is subject, (d) result in the creation or imposition of any liens
or
other encumbrances upon any of assets of Kid Fitness or give to others any
interests or rights therein or (e) result in the maturation or acceleration
of
any liability of Kid Fitness (or give others the right to cause such a
maturation or acceleration).
0
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2.4 Capitalization.
The
authorized capitalization of Kid Fitness consists of 200 shares of common stock
without par value. As of the date of this Agreement, there are 100 shares of
common stock issued and outstanding.
Secton
2.5 Subsidiaries.
Kid
Fitness does not have any subsidiaries and does not own, beneficially or of
record, any shares of any other corporation.
Secton
2.6 Options,
Warrants, Etc.
There
are no outstanding (i) options, warrants, agreements or other rights for the
acquisition of any of the unissued shares of the Company’s capital stock, (ii)
securities or other obligations of Kid Fitness which are convertible into or
exchangeable for such shares or (iii) options, sale agreements, shareholders
agreements, pledges ,proxies, voting trusts, powers of attorney, restrictions
on
transfers or other agreements or instruments which relate to the ownership,
voting or transfer of any of Kid Fitness’ shares.
Secton
2.7 Claims,
Litigation and Proceedings.
Except
as
set forth on Schedule
2.7,
there
are
no actions, suits, proceedings, audits, reviews, claims or investigations of
any
nature or kind whatsoever pending or threatened by or against Kid Fitness,
affecting Kid Fitness 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. Kid Fitness is not in default with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality.
Secton
2.8 Undisclosed
Liabilities.
Kid
Fitness does not have any debts, obligations or liabilities, absolute, fixed,
contingent or otherwise, of any nature whatsoever, whether due or to become
due
(including unasserted claims), whether incurred directly or by any predecessor
thereto, and whether arising out of any act, omission, transaction,
circumstance, sale of goods or services, state of facts or other condition
that
occurred or existed on or before the Kid Fitness Balance Sheet dated December
31, 2006 (the
“Kid
Fitness Balance Sheet”), whether or not then known, due or payable, except:
(a) those reflected or reserved against on the Kid Fitness Balance Sheet in
the amounts shown thereon, (b) those of the same nature as those set forth on
the Kid Fitness Balance Sheet that have arisen in the ordinary course of
business of Kid Fitness after the date of the Kid Fitness Balance Sheet through
the date hereof, and none of which, individually or in the aggregate, has or
will have a material adverse effect on the business of Kid Fitness, and none
of
which is a liability for breach of contract or warranty or has arisen out of
tort, infringement, violation of law or a lawsuit or threat hereof.
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2.9 Contracts;
Compliance.
Schedule
2.9,
to be
delivered within 14 days following the date hereof, sets forth a true, accurate
and complete list of each Kid Fitness Contract to which Kid Fitness is a party.
Kid Fitness shall with such Schedule deliver to OGTX true, accurate and complete
copies of each of the Kid Fitness Contracts. All Kid Fitness Contracts have
been
duly authorized and delivered by Kid Fitness, are in full force and effect
and
constitute the valid and binding obligations of each party thereto and are
enforceable in accordance with their respective terms against each party
thereto. As to the Kid Fitness Contracts, there are no existing breaches or
defaults by Kid Fitness and to Kid Fitness’ knowledge, by any other party
thereunder, and no event, act or omission has or, as a result of the
consummation of the transactions contemplated hereby or any Operative Agreement,
will occur which (with or without notice, lapse of time or the happening or
occurrence of any other event) would result in a material default thereunder,
give cause for termination thereof or permit the acceleration of any obligation
thereunder. As used herein, “Kid Fitness Contract” means any agreement of any
kind or nature whatsoever by which Kid Fitness is bound, whether written or
oral, and all amendments thereto, including, without limitation, any loan or
credit agreement, note, bond, mortgage, letter of credit, indenture,
understanding, lease, sublease, purchase order, arrangement, sales order or
other agreement, distribution agreement, employment agreement, commitment,
instrument, government approval, permit, concession, franchise, license or
capital lease.
Secton
2.10 No
Conflict With Other Instruments.
The
execution of this Agreement, the Operative Agreements and the consummation
of
the transactions contemplated by this Agreement and the Operative Agreements
will not result in the breach of any term or provision of, or constitute an
event of default under, any indenture, mortgage, deed of trust or other
contract, agreement or instrument to which Kid Fitness is a party or to which
any of its properties or operations are subject.
Secton
2.11 Governmental
Authorizations.
Kid
Fitness has all Permits legally required to enable Kid Fitness to conduct its
business as conducted on the date hereof. Such Permits are in full force and
effect. Kid Fitness has not received any notice from any governmental entity
that it intends to cancel, revoke, terminate, suspend, or not renew any such
Permit. Kid Fitness is in compliance with all Permits. 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 Kid Fitness of this Agreement, the Operative Documents and
the
consummation of Kid Fitness of the transactions contemplated hereby and thereby.
Secton
2.12 Books
& Records.
The
books
and records, financial and others, of Kid Fitness are complete and correct
and
have been prepared and maintained in accordance with Generally Accepted
Accounting Principles applied on a consistent basis throughout the periods
involved.
Secton
2.13 Information.
None of
the representations or warranties of Kid Fitness contained herein, none of
the
information contained in the Schedules referred to herein and none of the other
information or documents furnished or to be furnished to OGTX or any of their
representatives by Kid Fitness or its representatives pursuant to the terms
of
this Agreement, is false or misleading in any material respect or omits to
state
a fact herein or therein necessary to make the statements herein or therein
not
misleading.
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2.14 Title
and Related Matters.
Kid
Fitness owns free and clear of any Liens all of its assets, including, without
limitation, procedures, techniques, marketing plans, business plans, methods
of
management or other information and assets utilized in connection with Kid
Fitness’ business. No third party has any right to, and Kid Fitness has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any asset, product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names or
copyrights of Kid Fitness.
Secton
2.15 Tax
Matters.
Kid
Fitness has timely filed when due all Tax Returns that it was required to file.
All Taxes of Kid Fitness (whether or not shown on any Tax Return) which have
become due, or will become due, at any time on or prior to and including the
date hereof have been or will on the date hereof be, duly paid or adequately
reserved for (in accordance with generally accepted principles consistent with
past practice). All Tax Returns are true, complete and correct and were made
on
a proper basis. Kid Fitness has not executed or filed with the Internal Revenue
Service or any other taxing authority, or is currently the beneficiary of,
any
agreement or other document abating, extending or having the effect of abating
or extending the period for assessment or collection of, or waiving any statute
of limitations in respect of, any Taxes. There are no Tax audits or
investigations pending or, to the knowledge of Kid Fitness, threatened with
respect to Kid Fitness. There is no Tax deficiency proposed or, to the knowledge
of Kid Fitness, threatened against Kid Fitness and there has not been any
question or issue raised by any taxing authority in connection with Kid
Fitness’s Tax Returns. No person currently holds, with respect to Tax Returns
filed, powers of attorney from Kid Fitness.
No
claim
has been made by an authority in a jurisdiction where Kid Fitness does not
file
Tax Returns that it is or may be subject to taxation by that jurisdiction.
There
are no Liens on any of the assets of Kid Fitness that arose in connection with
any failure (or alleged failure) to pay any Tax.
Secton
2.16 Compliance
with Applicable Laws; Permits.
Kid
Fitness is not and has not in the past been in violation or breach of, and
the
business and operations of Kid Fitness comply in all respects with, all
Laws.
Secton
2.17 Insurance.
Schedule
2.17
to be
delivered within 14 days of the date hereof sets forth all of the current
insurance policies (including the names and addresses of the insurers, names
of
the persons to whom such policies have been issued, the expiration dates
thereof, the annual premiums and payment terms thereof, whether it is a “claims
made” or an “occurrence” policy and a brief description of the interests insured
thereby) that insure the business of Kid Fitness. All potential claims and/or
potential losses have been reported to the appropriate insurance
carrier.
Secton
2.18 Finder’s
Fees.
Neither
Kid Fitness nor any of its officers, directors or employees has employed any
broker, finder or investment banker or incurred any liability for any brokerage
fees, commissions or finder’s fees in connection with the transactions
contemplated herein.
10
ARTICLE
III
EXCHANGE
PROCEDURE AND OTHER CONSIDERATION
Section
3.1 Share
Exchange/Delivery of Kid Fitness Securities. Upon
due
and complete execution by the Exchanging Stockholders of certain Subscription
Agreements (“Subscription Agreements”) to be agreed between the Exchanging
Stockholders and OGTX, the Kid Fitness Exchanging Stockholders will deliver
100%
of the issued and outstanding shares of Kid Fitness Common Stock at the time
of
the Closing (which shall equal an aggregate of 100 shares) to OGTX and will
relinquish all rights, title and interest to and in the Kid Fitness Common
Stock
held by them and receive 126,576,200 shares of OGTX common stock for each share
of Kid Fitness Common Stock delivered with
any
resulting fractional figure being rounded up to a whole share
accordingly.
Section
3.2 Transfer
of Kid Fitness Common Shares. In
exchange for all of the Kid Fitness Common Shares tendered pursuant to Section
3.1, OGTX shall issue [126,576,200] restricted shares of common stock of OGTX
equal to 64% of the outstanding shares of common stock after the exchange of
OGTX to the Kid Fitness Exchanging Shareholders (“KF Shares”) and immediately
prior to the completion of the raising of a minimum of $7,000,000 and a maximum
of $12,000,000 through the sale of OGTX common stock at a price to be determined
(“Financing”). All the KF 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 a
subscription agreement to be delivered at the Closing. The OGTX shares issued
to
the Exchanging Shareholders shall be duly authorized, fully paid and
nonassessable and free and clear of all claims, liens or encumbrances.
Section
3.3 Events
Prior to Closing. Unless
indicated otherwise, as soon as practicable after the execution hereof but
in no
event later than the Closing each of the following conditions must be
satisfied:
(a) OGTX
shall amend its articles of incorporation increasing the authorized number
of
shares of common stock from 150,000,000 to 500,000,000 and file all necessary
documents, including filing an information statement with the United States
Securities and Exchange Commission (“SEC”), and with the appropriate
governmental and regulatory agencies.
(b) Within
90
days of execution of this Agreement, Kid Fitness shall provide audited financial
statements for the 2 years ending on June 30, 2007. Such Financial Statements
shall be prepared in accordance with generally accepted accounting principles
and satisfy the requirements of the Securities Exchange Act of 1934 with respect
to preparation and presentation. All expenses associated with such audited
financial statements shall be borne by OGTX. Prior to the Closing, Kid Fitness
shall provide any other information regarding Kid Fitness that shall be required
to be included in the Form 8-K that is to be filed pursuant to Section 7.1
of
this Agreement.
11
(d) Within
15
days of execution, Kid Fitness shall deliver all necessary due diligence
materials for review by OGTX which would allow OGTX to undertake a comprehensive
due diligence effort. Such materials shall include, but shall not be limited
to:
(i) organizational documents, (ii) material contracts, (iii) banking records
and
(iv) any materials necessary for the operation of Kid Fitness’s business
(collectively, “Kid Fitness Due Diligence Materials”).
(e) Within
15
days of execution, OGTX shall deliver all necessary due diligence materials
for
review by Kid Fitness which would allow Kid Fitness to undertake a comprehensive
due diligence effort, including, without limitation, the OGTX Contracts.
(f) Within
45
days of execution of this Agreement, OGTX shall provide a Private Placement
Memorandum for Kid Fitness’s review and approval, the intent of which shall be
to raise the funds related to the Financing (“PPM”).
(f) Management
of Kid Fitness 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
3.4 Closing. The
closing ("Closing") of the transactions contemplated by this Agreement shall
be
no later than November 13, 2007 which is 90 days from the date of execution,
unless such term is extended by written agreement of the parties
hereto.
ARTICLE
IV
SPECIAL
COVENANTS
Section
4.1 Access
to Properties and Records. It
is
acknowledged by each of OGTX and Kid Fitness, that, prior to the Closing, its
officers and authorized representatives will be afforded full access to the
other’s properties, books and records of Kid Fitness and OGTX as the case may
be, so that each may have full opportunity to make such reasonable investigation
as it desired to make of the affairs of the other and each shall furnish the
other with such additional financial and operating data and other information
as
to the business and properties of Kid Fitness 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.
12
Section
4.3 Special
Covenants and Representations Regarding the OGTX 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 Kid Fitness 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 Kid Fitness
Shareholders acquire such securities.
Section
4.4 Third
Party Consents. Kid
Fitness 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) Kid
Fitness hereby agrees to indemnify OGTX and each of the officers, agents and
directors of OGTX (the “OGTX Indemnified Party”) 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) (collectively,
“Loss”), to which it or they may become subject to arising out of or based on
any inaccuracy appearing in or misrepresentation made by Kid Fitness 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 Kid Fitness and each of the officers, agents,
directors and Exchanging Shareholders of Kid Fitness (the “Kid Fitness
Indemnified Party”) against any Loss to which it or they may become subject
arising out of or based on any inaccuracy appearing in or misrepresentation
made
by OGTX 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.
(c) If
any
OGTX Indemnified Party or Kid Fitness Indemnified Party (an “Indemnified Party”)
believes that it has suffered or incurred any Loss for which it is entitled
to
indemnification under this Section 4.5, such Indemnified Party shall so notify,
in writing, the party or parties from whom indemnification is being claimed
(the
“Indemnifying Parties”) with reasonable promptness and reasonable particularity
in light of the circumstances then existing and shall state that the
Indemnifying Party is required to indemnify the Indemnified Party for Losses
and, if possible, shall specify or estimate, as the case may be, the amount
of
Losses and the relevant details thereof to the extent available. If any action
at law or suit in equity is instituted by or against a third party with respect
to which any Indemnified Party intends to claim any Losses, such Indemnified
Party shall promptly notify, in writing, the Indemnifying Parties of such action
or suit. The failure of an Indemnified Party to give any notice required by
this
Section 4.5 shall not affect any of such party’s rights under this Section 4.5
except and to the extent that such failure is actually prejudicial to the rights
or obligations of the Indemnified Party.
13
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 Kid Fitness in this Agreement shall
be
true and correct as of the date hereof and shall be true and correct as of
the
date of the Closing as if made at and as of the date of the Closing (except
to
the extent that such representations and warranties refer specifically to an
earlier date, in which case, such representations and warranties shall have
been
true and correct as of such earlier date), and OGTX shall have received a
certificate dated the date of the Closing signed on behalf of the President
or
Chief Executive Officer to such effect. and Kid Fitness shall have performed
or
complied with all covenants and conditions required by this Agreement to be
performed or complied with by Kid Fitness prior to or at the
Closing.
Section
5.2 Shareholder
Approval. All
of
the Shareholders of Kid Fitness shall have approved this Agreement and the
transactions contemplated herein and shall have entered into a Subscription
Agreement in form and substance satisfactory to the parties hereto.
Section
5.3 Non-Contravention
of Laws. There
shall not be in effect at the Closing any order or law restraining, enjoining
or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
Section
5.4 No
Litigation.
No
action, suit, or proceeding shall be pending or threatened before any court
or
governmental entity seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or to which would cause any of
the
transactions contemplated by this Agreement to be rescinded following
consummation.
Section
5.5 No
Material Adverse Change. Prior
to
the Closing, there shall not have occurred any material adverse change in the
condition (financial or otherwise), business, operations or prospects 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 condition
(financial or otherwise), business, operations or prospects of Kid
Fitness.
Section
5.6 Audited
Financial Statements. Kid
Fitness shall have delivered the financial statements enumerated in Section
3.3(c).
14
Section
5.7 Due
Diligence. The
Kid
Fitness Due Diligence Materials shall have been delivered to OGTX.
Section
5.8 Other
Items. OGTX
shall have received such further documents, certificates or instruments relating
to the transactions contemplated hereby as OGTX may reasonably request,
including those items enumerated in Sections 3.3(d) and (f).
Section
5.9 Schedules. At
the
Closing, Kid Fitness shall deliver Schedules, deliverable pursuant to Article
II, in form and substance satisfactory to OGTX.
Section
5.10 Opinion. Kid
Fitness shall have delivered to OGTX an opinion of Meyer, Suozzi, English &
Xxxxx, P.C., counsel to Kid Fitness, dated the date of the Closing, in form
and
substance satisfactory to OGTX.
Section
5.11 Financing. At
the
Closing, OGTX shall have completed the Financing upon terms and conditions
satisfactory to Kid Fitness and the Exchanging Shareholders and, except as
set
forth in Section 6.12 below, the proceeds of such Financing shall be transferred
to Kid Fitness’ at the Closing for use in the operation of the business of Kid
Fitness following the Closing.
Section
5.12 Employment
Agreements.
At the
Closing, Neville and Xxxxxxxx shall execute and deliver the Neville Employment
Agreement and the Xxxxxxxx Employment Agreement in form and substance
satisfactory to OGTX. In addition, OGTX and Xxxx Xxxx shall execute and deliver
the Xxxx Employment Agreement in form and substance satisfactory to
OGTX.
Section
5.13 Subscription
Agreements.
At the
Closing, Neville and Xxxxxxxx shall execute and deliver Subscription Agreements
in form and substance satisfactory to OGTX.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF KID FITNESS
The
obligations of Kid Fitness 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 shall be true
and
correct as of the date hereof and shall be true and correct as of the date
of
the Closing as if made at and as of the date of the Closing (except to the
extent that such representations an warranties refer specifically to an earlier
date, in which case, such representations and warranties shall have been true
and correct as of such earlier date), and Kid Fitness shall have received a
certificate dated the date of the Closing signed on behalf of the President
or
Chief Executive Officer to such effect.
15
Section
6.2 Non-Contravention
of Laws. There
shall not be in effect at the Closing any order or law restraining, enjoining
or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
Section
6.3 No
Litigation.
No
action, suit, or proceeding shall be pending or threatened before any court
or
governmental entity seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or to which would cause any of
the
transactions contemplated by this Agreement to be rescinded following
consummation.
Section
6.4 No
Material Adverse Change. Prior
to
the Closing, there shall not have occurred any material adverse change in the
condition (financial or otherwise), business, operations or prospects 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 condition
(financial or otherwise), business, operations or prospects of
OGTX.
Section
6.5 Shareholder
Approval. The
majority of outstanding shares of OGTX immediately prior to the transaction
contemplated by this Agreement shall have voted in favor of this Agreement,
all
transactions related thereto and the Financing.
Section
6.6 Performance. OGTX
shall have performed or complied with all obligations and covenants required
by
this Agreement to be performed and complied with by OGTX at or prior to the
Closing, including, without limitation, obligations under Sections 3.3(a),
(b),
(e) and (f).
Section
6.7 Opinion. OGTX
shall have delivered to Kid Fitness an opinion of Sanders, Ortoli, Xxxxxx-Xxxx,
Rosenstadt, LLP counsel to OGTX, dated the date of the Closing, in form and
substance satisfactory to Kid Fitness.
Section
6.8 Financing. At
the
Closing, OGTX shall have completed the Financing upon terms and conditions
satisfactory to Kid Fitness and the Exchanging Shareholders and, except as
set
forth in Section 6.12 below, the proceeds of such Financing shall be transferred
to Kid Fitness’ at the Closing for use in the operation of the business of Kid
Fitness following the Closing.
Section
6.9 Due
Diligence. Kid
Fitness shall have completed and shall be fully satisfied in its sole discretion
with the results of its review of, and its other due diligence investigations
with respect to, OGTX.
Section
6.10 Tax
Matters. At
the
Closing, Kid
Fitness shall be satisfied that this exchange of shares qualifies as a tax
free
exchange under the Internal Revenue Code, as amended.
Section
6.11 Delivery
of Promissory Notes. OGTX
shall execute and deliver to each of Xxxxxxx Xxxxxxxx and Xxxx Xxxxxxx a
convertible promissory note in the principal amount of $250,000 in form and
substance satisfactory to Xxxxxxx Xxxxxxxx and Xxxx Xxxxxxx, respectively,
each
of which shall be payable within 12 months from the date of the Closing with
interest at an annual rate of eight percent (8%) (the “Promissory
Notes”).
16
Section
6.12 Payments
at Closing. At
the
Closing, OGTX shall use the proceeds of the Financing to pay the $1,000,000
to
Bank of New York in full satisfaction of a certain loan by Bank of New York
to
Kid Fitness and an amount equal to $750,000 to each of Xxxx Xxxxxxx and Xxxxxxx
Xxxxxxxx.
Section
6.13 Employment
Agreements.
At the
Closing, OGTX shall execute and deliver the Neville Employment Agreement and
the
Xxxxxxxx Employment Agreement in form and substance satisfactory to Neville
and
Xxxxxxxx, respectively. In addition, OGTC and Xxxx Xxxx shall execute and
deliver the Xxxx Employment Agreement in form and substance satisfactory to
Kid
Fitness.
Section
6.14 Subscription
Agreements.
At the
Closing, OGTX shall execute and deliver Subscription Agreements for each
Exchanging Shareholder in form and substance satisfactory to such Exchanging
Shareholder.
Section
6.15 Schedules. At
the
Closing, OGTX shall deliver Schedules, deliverable pursuant to Article I, in
form and substance satisfactory to Kid Fitness.
Section
6.16 Consents. All
of
the required third party consents shall have been obtained.
Section
6.17 Board
of Directors. At
the
Closing, OGTX’s Board of Directors shall have appointed Xxxx Xxxxxxx and Xxxxxxx
Xxxxxxxx as members of the Board of Directors of OGTX, and together, they shall
constitute two-thirds of the total number of directors on the Board of Directors
of OGTX.
Section
6.18 Audited
Financial Statements. Kid
Fitness shall have delivered the financial statements enumerated in Section
3.3(c).
ARTICLE
VII
TERMINATION
Section
7.1 Termination.
This
Agreement may be terminated prior to the Closing as follows:
(a) at
the
election of Kid Fitness or OGTX if the Closing has not occurred by November
13,
2007;
(b) at
the
election of Kid Fitness if OGTX has breached any representation, warranty,
covenant or agreement contained herein, and OGTX has not cured such breach
of
representation, warranty, covenant or agreement within ten (10) days after
OGTX shall have received written notice from Kid Fitness that it intends to
exercise its right to terminate under this Section 7.1(b);
(c) at
the
election of OGTX, if Kid Fitness has breached any representation, warranty,
covenant or agreement contained herein in any material respect, and Kid Fitness
has not cured such representation, warranty, covenant or agreement
within ten (10) days after Kid Fitness or shall have received written
notice from OGTX that it intends to exercise its right to terminate under this
Section 7.1(c);
17
(d) at
the
election of Kid Fitness, on the one hand, or OGTX, on the other hand, if any
action shall have been instituted and be continuing by any governmental
authority with proper authority to restrain, modify or prohibit the carrying
out
of the transactions contemplated by this Agreement, and such action shall not
have been stayed or terminated within ten (10) days after the
commencement of such action becomes known to Kid Fitness or OGTX, as the case
may be;
(e) at
any
time on or prior to the Closing Date, by mutual written consent of Kid
Fitness and OGTX; and
(g)
if the Financing shall be presented to Kid Fitness and Kid Fitness shall
reject the Financing
in its sole discretion.
(f) If
Kid
Fitness or OGTX, as the case may be, elects to terminate this Agreement pursuant
to this Section 7.1, the terminating party shall deliver a notice, in writing,
to the other party hereto declaring its election to so terminate this Agreement
in accordance with the provisions of this Section 7.1, and setting forth therein
the basis for such termination. If this Agreement so terminates, it shall become
null and void and have no further force or effect, except as provided in
Section 7.2 hereof, provided,
however,
that
neither Kid Fitness nor OGTX shall be entitled to terminate this Agreement
if
such party’s breach of this Agreement has prevented the satisfaction of a
condition. Unless
and until this Agreement has been terminated as set forth herein, neither party
shall enter into any negotiations or agreement with respect to the subject
matter hereof.
Section
7.2 Effect
of Termination.
If this
Agreement is terminated, this Agreement shall become void and of no further
force or effect, except for the provisions of Sections 9.11
(Expenses) and 9.17
(Public
Announcements), this Article
VII
(Termination) and Article
IX
(Miscellaneous) hereof. In the event this Agreement is terminated, none of
the
parties hereto shall have any liability in respect of a termination of this
Agreement, except as provided in this Section 7.2; provided,
however,
that if
this Agreement is terminated by a party because of the breach of this Agreement
by the other party or because one or more of the conditions to the terminating
party’s obligations under this Agreement is not satisfied as a result of the
other party’s failure to fully comply with its obligations under this Agreement,
the terminating party’s rights to pursue all legal remedies will survive such
termination unimpaired, including the right to recover from the breaching party
all of the non-breaching party’s costs and expenses (including attorneys fees
and expenses) relating to the transactions contemplated by this Agreement and
this Agreement.
18
ARTICLE
VIII
OBLIGATION
OF CERTAIN PARTIES AFTER CLOSING
Section
8.1 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 changing the name to “Kid Fitness, Inc.” or other
similar name if that is not available.
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Brokers
and Finders.
There
are no broker or finder’s fees due to any party from either OGTX or Kid Fitness.
Section
9.2 Law,
Forum and Jurisdiction.
This
Agreement shall be construed and interpreted in accordance with the laws of
the
State of New York, United States of America. Jurisdiction is New
York.
19
Section
9.3 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.
|
|
Xxxx
Xxxx
|
|
|
President
|
|
|
x/x
Xxxxxxx, Xxxxxx, Xxxxxx-Xxxx, Xxxxxxxxxx LLP
|
|
|
000
Xxxxxxx Xxxxxx - 00xx Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Tel:
000-000-0000
|
|
|
Fax:
000-000-0000
|
|
|
With
a copy to:
|
Xxxxxxx
Xxxxxxxxxx, Esq.
|
|
Sanders,
Ortoli, Xxxxxx-Xxxx, Xxxxxxxxxx LLP
|
|
|
000
Xxxxxxx Xxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Tel:
000 000 0000
|
|
|
Fax:
000 000 0000
|
|
|
If
to Kid Fitness:
|
Kid
Fitness, Inc.
|
|
Xxxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
|
|
Tel:
000 000 0000
|
|
|
Fax:
000 000 0000
|
|
|
With
a copy to:
|
Xxxxx
X. Xxxxxxx, Esq.
|
|
Xxxxx
Xxxxxx English & Xxxxx, P.C.
|
|
|
000
Xxxxxxx Xxxxxx
|
|
|
Xxxxxx
Xxxx, Xxx Xxxx, 00000
|
|
|
Tel.:
000 000 0000
|
|
|
Fax:
000 000 0000
|
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
9.4 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.
20
Section
9.5 Third
Party Beneficiaries. This
contract is solely among Kid Fitness, 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
9.6 Entire
Agreement. This
Agreement represents the entire agreement between the parties relating to the
subject matter hereof. This Agreement and the Operative Agreements 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 as set forth herein.
This
Agreement may not be amended or modified, except by a written agreement signed
by all parties hereto.
Section
9.7 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, except for Sections 1.1, 1.2, 1.3, 1.14, 1.15, 2.1,
2.2, 2.3, 2.14 and 2.15 which shall survive indefinitely.
Section
9.8 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
9.9
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
9.10 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
9.11 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, except that the
cost of preparing the audit contemplated by Section 3.3(b) and the legal fees
of
Kid Fitness and the Exchanging Shareholders up to $50,000 shall be borne by
OGTX.
Section
9.12 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
9.13 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.
21
Section
9.14 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
9.15 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
9.16 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
9.17 Public
Announcements. Except
as
otherwise required by law, so long as this Agreement is in effect, OGTX and
Kid
Fitness will not, and will not permit any of their respective representatives
to, issue or cause the publication of any press release or make any public
announcement with respect to the transactions contemplated by this agreement
without the consent of the other party, which consent shall not be unreasonably
withheld. OGTX and Kid Fitness will cooperate with each other in the development
and distribution of all press releases and other public announcements with
respect to this Agreement and the transactions contemplated hereby, and will
furnish the other with drafts of any such releases and announcements as far
in
advance as practicable.
22
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.
|
||||
| By: | /s/ Xxxx Xxxx | |||
|
Xxxx
Xxxx
|
||||
| President | ||||
| Kidfitness Inc. | ||||
| By: |
Xxxx
Xxxxxxx
|
|||
|
Xxxx
Xxxxxxx
|
||||
|
President
|
||||
|
Exchanging
Stockholders
|
|||
| /s/ Xxxx Xxxxxxx | |||
|
Xxxx Xxxxxxx |
|||
|
/s/
Xxxxxxx Xxxxxxxx
|
|||
|
Xxxxxxx
Xxxxxxxx
|
|||
|
/s/
Xxxx X. Xxxxxxxx, III
|
|||
|
Xxxx
X. Xxxxxxxx, III
|
|||
Xxxx
X.
Xxxxxxxx, III and
Xxxxxxx
Xxxxxxxx, as Trustees
u/w/o
Xxxx X. Xxxxxxxx, Xx.
| By: | ||||
|
Name:
|
|
|||
|
Title:
|
23
| Terrace Holding LLC | ||||
| By | ||||
|
Name:
|
|
|||
| Title: | ||||
|
/s/
Xxxxxxx X. Xxxx
|
|||
|
Xxxxxxx
X. Xxxx
|
|||
| /s/ Xxxxx Xxxxxxxx | |||
|
Xxxxx
Xxxxxxxx
|
|||
|
/s/
Xxxxxx Xxxxxxx
|
|||
|
Xxxxxx
Xxxxxxx
|
|||
|
/s/
Xxxxxxxx Xxxxxxx
|
|||
|
Xxxxxxxx
Xxxxxxx
|
|||
|
MBGLM
Corp.
|
||||
| By: | ||||
|
Name:
|
|
|||
|
Title:
|
||||
24
Schedule
A
Exchanging
Stockholders
25
Schedule
1.9
OGTX
Contracts
26
Schedule
1.17
OGTX
Insurance
27
Schedule
2.1
Kid
Fitness Articles of Incorporation, Bylaws and Amendments (as
applicable)
28
Schedule
2.7
Litigation
[XxXxxxx
matter] See attached correspondence.
29
Schedule
2.4
Liabilities
30
Schedule
2.9
Kid
Fitness Contracts
31
Section
2.17
Kid
Fitness Insurance
32
