SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 21, 2005
OCG TECHNOLOGY, INC.
(Exact name of Registrant as specified in its Charter)
DELAWARE 0-5186 13-2643655
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(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification Number)
56 Harrison Street, Suite 501, New Rochelle, NY 10801
(Address of principal executive offices)
Registrant's telephone number, including area code: 914-576-8457
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Former name, former address and former fiscal year,
if changed since last report.
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the Registrant
under any of the following provisions (See General Instruction A.2
below):
Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 Entry into a Material Definitive Agreement.
On December 19, 2005, the Registrant, OCG Technology, Inc. (
"OCGT"), completed a share purchase agreement with Bobby Vavithis
(the "Share Purchaser"). Pursuant to the terms of share purchase
agreement, Share Purchaser will purchase approximately 147,569
shares of OCGT's Series F Preferred stock (the "Share Purchase") for
the sum of $495,000.00 (the "Purchase Price"). The closing of the
share purchase agreement will result in a change of control of
OCGT, since approximately 95.5% of OCGT's outstanding shares will be
owned by Share Purchaser.
Pursuant to the terms of share purchase agreement, on or before
February 15, 2006, Purchaser will contribute to OCGT, as contributed
capital, without any additional compensation from OCGT, assets
consisting of (a) a 100% working interest in the Redearth Prospect,
located in central Alberta, Canada, which Prospect is located
adjacent to the Pembina Nisku Reef Prospect and in addition (b) a
20% working interest in the Pembina Nisku Reef Prospect, both of
which were acquired by Purchaser from Angels Exploration Fund Inc.,
a Canadian corporation, together with the cash capital necessary to
meet the drilling requirements of the working interests (the
"Contributed Capital").
As a condition to the closing of the Share Purchase, it was agreed
that 100% of the shares of PrimeCare Systems, Inc. ("PSI"), owned by
OCGT, will be distributed prior to the closing, as a dividend, to
OCGT stockholders of record on December 29, 2005 (the "Record
Date"). Pursuant to the dividend distribution, approximately
69,901,121 shares of PSI common stock will be issued to holders, as
of the Record Date, of OCGT common and convertible preferred stock,
that they hold, on the basis of one share of PSI common stock for
each share of OCGT common stock, or for each share of common stock
that the OCGT convertible preferred stock is convertible into.
Following the distribution, 100% of the outstanding PSI common stock
will be held by the shareholders of OCGT as of the Record Date. PSI
will file a registration statement with the Securities and Exchange
Commission with respect to the dividend distribution. Only those
stockholders who owned OCGT shares on the Record Date will be
entitled to receive PSI shares in the dividend distribution.
The share purchase agreement provides that, prior to closing, OCGT
will contribute all of its assets to PSI in consideration for PSI
assuming all of OCGT's liabilities and that $275,000.00 of the
Purchase Price will be paid to PSI.
At the closing of the Share Purchase, two new members will be
appointed to OCGT's Board of Directors and Edward C. Levine will
resign as a director and as president/treasurer/CFO of OCGT, Jeffrey
P. Nelson will resign as a director and as vice president/secretary
of OCGT and Jarema S. Rakoczy will resign as a director of OCGT.
OCGT expects to complete the Share Purchase on or about December 30,
2005, subject to the conditions described above and other customary
closing conditions.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
There are filed as part of this report the exhibits listed on
the accompanying Index to Exhibits, which are incorporated herein by
reference.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
OCG TECHNOLOGY, INC.
By: /s/ Edward C. Levine
Edward C. Levine,
President
Dated: December 21, 2005
Index to Exhibits
Exhibit No. Description
10.1 Stock Purchase Agreement, dated
December 19, 2005 by and between
OCG Technology, Inc. and Bobby Vavithis
Exhibit 10.1
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is dated as
of December 19, 2005, by and among OCG TECHNOLOGY, INC. ("OCGT"), a
Delaware corporation, with offices at 56 Harrison Street, New
Rochelle, NY 10801 and BOBBY VAVITHIS ("Purchaser"), who resides at
Kos Kefalos, Dodekanis, Greece.
RECITALS:
Purchaser desires to purchase control of OCGT and thereafter
contribute working interests in certain oil and natural gas
properties to OCGT together with the capital necessary to complete
the drilling of wells necessary to retain the working interests in
the properties; and
The Board of Directors of OCGT has approved the proposed
transaction, contingent upon satisfaction prior to closing of all of
the terms and conditions of this Agreement; and
The Parties desire to make certain representations, warranties and
agreements in connection with completion of the proposed share
purchase transaction.
NOW, THEREFORE, in consideration of the foregoing recitals,
which shall be considered an integral part of this Agreement, and
the covenants, conditions, representations and warranties
hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
THE PURCHASE
1.1 The Recitals set forth above are hereby incorporated into this
Agreement and made a part hereof.
1.2 The Purchase. At the Closing (as hereinafter defined), Purchaser
shall acquire 147,569 shares of the Series F Preferred Stock, of
OCGT, par value $.10 per share (the "Purchased Shares"),
representing 95.5% of the issued and outstanding voting stock of
OCGT. Consideration to be paid by Purchaser shall be $450,000.00,
payable by wire transfer in readily usable Federal funds (the "Cash
Purchase Price") as follows: $275,000.00 to PrimeCare Systems, Inc.,
previously, a wholly-owned subsidiary of OCGT; and the balance of
$175,000 to Jeffersonian Inc.
1.3 Closing and Effective Time. Subject to the provisions of this
Agreement, the parties shall hold a closing (the "Closing") on (i)
the first business day on which the last of the conditions set forth
in Article IV to be fulfilled prior to the Closing is fulfilled or
waived or (ii) such other date as the parties hereto may agree (the
"Closing Date"), at such time and place as the parties hereto may
agree. Such date shall be the date of payment (the "Effective
Time"). On, or prior to the Closing Date, OCGT shall have disposed
of all of its assets, so that, by such time, it shall be possessed
of no assets, and no liabilities.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of OCGT. OCGT represents and
warrants to Purchaser as follows:
(a) Organization, Standing and Power. OCGT is a corporation
duly organized, validly existing and in good standing under
the laws of the State of Delaware, is a listed company on the
OTC Bulletin Board of United States of America, has all
requisite power and authority to own, lease and operate its
properties and to carry on its business as now being
conducted, and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes
such qualification necessary.
(b) Capital Structure. As of the date of execution of this
Agreement, the authorized capital stock of OCG consists of
50,000,000 shares of common stock, $.01 par value per share
(the "OCG Common Stock"), and 1,000,000 shares of preferred
stock, par value of $ .10 per share ("OCG Preferred Stock"
and, together with OCG Common Stock, the "OCG Capital
Stock"), of which OCG Preferred Stock, 200,000 shares have
been designated as Series C Preferred Stock (the "OCG Series
C Stock"), 100,000 shares have been designated as Series E
Preferred Stock and 400,000 shares have been designated as
Series F Preferred Stock. As of the date of this Agreement,
OCG has issued and outstanding: 49,901,121 shares of OCG
Common Stock; 200,000 shares of Series C Preferred Stock;
and 33,000 shares of Series E Preferred Stock. Previously,
200,000 shares had been designated as Series A Preferred
Stock, and 100,000 shares have been designated as Series B
Preferred Stock, both of which had no shares issued and
outstanding and on March 22, 2005, amendments to their
Certificates of Designation were filed with the State of
Delaware terminating the Series A Preferred Stock, and Series
B Preferred Stock. All outstanding shares of OCG Capital
Stock are validly issued, fully paid and non-assessable, and
free of preemptive rights. Except as set forth above, and
other than as contemplated in this Agreement, there are no
OCG stock rights, stock appreciation rights, phantom equity,
or other agreements or commitments obligating OCG to issue,
transfer, sell, redeem, repurchase or otherwise acquire any
shares of its respective capital stock of any class.
(c) Certificate of Incorporation, Bylaws, and Minute Books.
The copies of the Articles of Incorporation and of the Bylaws
of OCGT which have been delivered to Purchaser are true,
correct and complete copies thereof. The minute book of OCGT,
which has been made available for inspection, contains
accurate minutes of all meetings and accurate consents in
lieu of meetings of the Board of Directors (and any committee
thereof) and of the shareholders of OCGT since the date of
incorporation and accurately reflects all transactions
referred to in such minutes and consents in lieu of meetings.
(d) Authority. OCGT has all requisite power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of
Directors of OCGT. No other corporate or shareholder
proceedings on the part of OCGT are necessary to authorize
the Exchange, or the other transactions contemplated hereby.
(e) Conflict with Other Agreements; Approvals. The execution
and delivery of this Agreement does not, and the consummation
of the transactions contemplated hereby will not result in
any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation
or the loss of a material benefit under, or the creation of a
lien, pledge, security interest or other encumbrance on
assets (any such conflict, violation, default, right of
termination, cancellation or acceleration, loss or creation,
a "violation") pursuant to any provision of the Articles of
Incorporation or Bylaws or any organizational document of
OCGT or, result in any violation of any loan or credit
agreement, note, mortgage, indenture, lease, benefit plan or
other agreement, obligation, instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to OCGT which
violation would have a material adverse effect on OCGT taken
as a whole. No consent, approval, order or authorization of,
or registration, declaration or filing with, any court,
administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign (a
"Governmental Entity") is required by or with respect to OCGT
in connection with the execution and delivery of this
Agreement by OCGT or the consummation by OCGT of the
transactions contemplated hereby.
(f) Books and Records. OCGT has made and will make available
for inspection by Purchaser upon reasonable request all the
books of OCGT relating to the business of OCGT. Such books of
OCGT have been maintained in the ordinary course of business.
All documents furnished or caused to be furnished to
Purchaser by OCGT are true and correct copies, and there are
no amendments or modifications thereto except as set forth in
such documents.
(g) Compliance with Laws. OCGT is and has been in compliance
in all material respects with all laws, regulations, rules,
orders, judgments, decrees and other requirements and
policies imposed by any Governmental Entity applicable to it,
its properties or the operation of its businesses.
(h) SEC Filings. OCGT has filed all periodic reports required
to be filed with the Securities and Exchange Commission and
as of the date hereof, is current in its filing obligations.
(i) Financial Statements and Tax Returns. Copies of OCGT's
audited financial statements for the fiscal year ended June
30, 2005 and of its tax return for the fiscal year 2005 have
been delivered to Purchaser.
(j) Litigation. There is no suit, action or proceeding
pending, or, to the knowledge of OCGT, threatened against or
affecting OCGT which is reasonably likely to have a material
adverse effect on OCGT, nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or
arbitrator outstanding against OCGT having, or which, insofar
as reasonably can be foreseen, in the future could have, any
such effect.
(k) Tax Returns. OCGT has duly filed any tax reports and
returns required to be filed by it and has fully paid all
taxes and other charges claimed to be due from it by any
federal, state or local taxing authorities. There are not now
any pending questions relating to, or claims asserted for,
taxes or assessments asserted upon OCGT.
2.2 Representations and Warranties of Purchaser. Purchaser
represents, warrants and covenants as follows:
(a) Other than this Agreement, the Purchaser has received no
general solicitation or general advertising regarding this
offering; the Purchaser is aware of no other solicitation or
general advertising regarding this offering, and the
Purchaser is aware of no other solicitation or advertising
received by other offerees. The Purchaser acknowledges that
the Purchaser has received and thoroughly reviewed copies of
OCGT's filings with the Securities and Exchange Commission,
which filings include financial statements and all other
filings (the "Offering Documents").
(b) All documents, records and books of OCGT pertaining to
this proposed investment by Purchaser have been made
available for inspection by the Purchaser, the Purchaser's
attorney and/or the Purchaser's accountant, and that the
books and records of OCGT will be available upon reasonable
notice for further inspection by the Purchaser during
reasonable business hours at OCGT's principal place of
business. The Purchaser and/or the Purchaser's advisor(s)
have had a reasonable opportunity to ask questions of, and
receive answers from, a person or persons acting on behalf of
OCGT concerning the terms and conditions of the offering of
the Preferred Shares, and all such questions have been
answered to the full satisfaction of the Purchaser. No oral
representations have been made or oral information furnished
to the Purchaser or the Purchaser's advisor(s) in connection
with the offering of the Preferred Shares which were in any
way inconsistent with the Offering Documents.
(c) The Purchaser has examined the OCGT's financial history,
minutes and by-laws carefully before making this investment.
The Purchaser IS AWARE OF THE FACT THAT THIS IS A SPECULATIVE
INVESTMENT INVOLVING A HIGH DEGREE OF RISK. The Purchaser has
such knowledge and experience in financial, tax and business
matters to enable the Purchaser to utilize the information
made available in connection with the offering of the
Preferred Shares in order to evaluate the merits and risks of
this prospective investment and to make an informed
investment decision with respect thereto.
(d) The Purchaser is an "accredited investor" (as defined in
Rule 501(a) of Regulation D of the Securities Act of 1933, as
amended (the "Act") and as set forth below in the Purchaser
Questionnaire). In this respect, the Purchaser has had
substantial experience in previous private and public
purchases of securities.
(e) The Purchaser (i) has adequate means of providing for
current needs and possible personal contingencies, (ii) has
no need for liquidity in this proposed investment, (ii) is
able to bear the substantial economic risks of an investment
in the Preferred Shares for an indefinite period, (iii) at
the present time, can afford a complete loss of such an
investment and (iv) does not have an overall commitment to
investments which are not readily marketable that is
disproportionate to the Purchaser's net worth, and the
Purchaser's investment in the Preferred Shares will not cause
such an overall commitment to become excessive.
(f) The Purchaser understands, that the Preferred Shares
have not been registered under the Act or under applicable
state "blue sky" or securities laws, and are being offered in
reliance upon exemptions therefrom under the provisions of
such laws, including exemptions therefrom for non-public
offerings. The Purchaser understands that each Preferred
Share must be held indefinitely unless its sale or other
transfer is subsequently registered under the Act, and any
applicable state "blue sky" or securities laws or an
exemption from such registration is available under such
laws. In addition, the Purchaser understands that the
Offering Documents may not have been filed with, or reviewed
by, certain state securities administrators because of the
representation made by OCGT as to the private or limited
nature of the offering.
(g) The Purchaser realizes that the Purchaser may not be
able to sell or dispose of any of the Purchaser's Preferred
Shares. The Purchaser covenants and agrees that the
Purchaser will not attempt to transfer or otherwise dispose
of any of the Preferred Shares to be held by the Purchaser
unless (i) such transfer or disposition is made pursuant to
an effective registration statement under the Act and has
been registered or qualified under all applicable state
securities or "blue sky" laws, or (ii) the Purchaser shall
have furnished OCGT with an opinion of counsel, which counsel
shall be satisfactory to OCGT and which opinion shall be
satisfactory in form and substance to OCGT and its counsel,
to the effect that no such registration is required because
of the availability of an exemption from registration and/or
qualification under the Act and the rules and regulations
promulgated thereunder and under any applicable state
securities or "blue sky" laws.
(h) The Purchaser represents that the Purchaser (i) is
purchasing these Purchased Shares for the Purchaser's own
account and not for the account of others; is purchasing
these Purchased Shares for investment purposes only and not
with a view to distribution, assignment or resale to
others; and (iii) understands and agrees that, in order to
prevent the transfer of these Purchased Shares in violation
of the securities laws, the certificates evidencing the
Purchaser's ownership of these Purchased Shares will bear a
legend to prevent transfer. The Purchaser further understands
and agrees that "Stop Transfer" instructions will also be
noted in the appropriate stock transfer records of OCGT, and
understands that the Preferred Shares may only be resold if
registered under the Act, or are exempt therefrom. The
Purchaser has received such legal advice from the Purchaser's
legal advisors as the Purchaser has deemed necessary for an
understanding of the foregoing restrictions on transfer.
(i) The Purchased Shares which are the subject of this
agreement, when issued, will be fully paid and
non-assessable, and, except as may be provided by law, with
no personal liability attaching to the ownership thereof.
(j) All information which the Purchaser has provided to OCGT,
including all information contained herein and in the
accompanying Purchaser Questionnaire, annexed hereto as
Exhibit 1, concerning personal, financial and business
matters, is correct and complete as of the date set forth at
the end hereof and thereof, and, if there should be any
material change in such information prior to the issuance of
the Purchased Shares, the Purchaser agrees immediately to
provide OCGT with such information.
(k) The Purchaser is at least 21 years of age.
(l) On or before February 15, 2006, Purchaser will contribute
to OCGT, as contributed capital, without any additional
compensation from OCGT, assets consisting of (a) a 100%
working interest in the Redearth Prospect, located in central
Alberta, Canada, which Prospect is located adjacent to the
Pembina Nisku Reef Prospect and in addition (b) a 20% working
interest in the Pembina Nisku Reef Prospect, both of which
were acquired by Purchaser from Angels Exploration Fund Inc.,
a Canadian corporation, together with the cash capital
necessary to meet the drilling requirements of the working
interests (the "Contributed Capital").
2.3 Indemnification. The Purchaser hereby indemnifies and holds
harmless OCGT, its officers, directors and affiliates, and everyone
acting on their behalf from and against all damages, losses, costs
and expenses (including reasonable attorney's fees) which they may
incur by reason of the failure of the Purchaser to fulfill any of
the terms or conditions of this Agreement or the Purchaser
Questionnaire, or by reason of any breach of the representations,
warranties and covenants made by the Purchaser herein, or in any
other document provided by the Purchaser to OCGT in connection
herewith.
2.4 Miscellaneous.
(a) The Purchaser agrees not to transfer or assign this
Agreement, or any of the Purchaser's interest herein, and
further agrees that the transfer or other disposition of the
Purchased Shares acquired pursuant hereto shall be made only
in accordance with this Agreement and all applicable laws.
(b) The Purchaser hereby agrees that, except as is otherwise
permitted by this Agreement, or as required by law, the
Purchaser may not cancel, terminate or revoke this Agreement
or any agreement of the Purchaser made hereunder.
(c) Notwithstanding any of the representations, warranties,
acknowledgments or agreements made herein by the Purchaser,
the Purchaser does not thereby, or in any other manner, waive
any rights granted to the Purchaser under Federal or state
securities laws.
(d) This Agreement may be amended only by a writing executed
by all parties.
(e) This Agreement shall be enforced, governed and construed
in all respects in accordance with the laws of the State of New York.
(f) Within ten days after receipt of a written request from
OCGT, the Purchaser agrees to provide such information and to
execute and deliver such documents as reasonably may be
necessary in order to comply with any and all laws and
ordinances to which OCGT is subject.
ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS
3.1 Covenants of OCGT. During the period from the date of this
Agreement and continuing until the Effective Time, OCGT agrees
(except as expressly contemplated or permitted by this Agreement, or
to the extent that the Purchaser shall otherwise consent in writing):
(a) Ordinary Course. To carry on its respective business in
the usual, regular and ordinary course, in substantially the
same manner as heretofore conducted.
(b) Dividends; Changes in Stock . It shall not (i) declare
or pay any dividends on or make other distributions in
respect of any of its capital stock, or (ii) repurchase or
otherwise acquire, or permit any subsidiary to purchase or
otherwise acquire, any shares of its capital stock.
(c) Issuance of Securities. It shall not issue, deliver or
sell, or authorize or propose the issuance, delivery or sale
of, any shares of its capital stock of any class, any voting
debt or any securities convertible into, or any rights,
warrants or options to acquire, any such shares, voting debt
or convertible securities.
(d) Governing Documents. It shall not amend or propose to
amend its Articles of Incorporation or Bylaws.
(e) No Dispositions. Except for the transfer of assets in the
ordinary course of business consistent with prior practice,
it shall not sell, lease, encumber or otherwise dispose of,
or agree to sell, lease, encumber or otherwise dispose of,
any of its assets, which are material, individually or in the
aggregate.
(f) Indebtedness. It shall not incur any indebtedness for
borrowed money or guarantee any such indebtedness or issue or
sell any debt securities or warrants or rights to acquire any
debt securities of such party or guarantee any debt
securities of others other than in each case in the ordinary
course of business consistent with prior practice.
3.2 Other Actions. Neither party shall take any action that would or
is reasonably likely to result in any of its representations and
warranties set forth in this Agreement being untrue as of the date
made (to the extent so limited), or in any of the conditions to the
Purchase set forth in Article V not being satisfied.
ARTICLE IV
ADDITIONAL AGREEMENTS AND RELATED TRANSACTIONS
4.1 Legal Conditions to Purchase. Each of OCGT and Purchaser shall
take all reasonable actions necessary or appropriate to comply
promptly with all legal requirements which may be imposed on each of
them with respect to the Purchase, and will promptly cooperate with,
and furnish information to each other in connection with any such
requirements imposed upon either of them or upon any of OCGT's
related entities or subsidiaries in connection with the Purchase.
Each party shall take all reasonable actions necessary or
appropriate to obtain (and will cooperate with each other in
obtaining) any consent, authorization, order or approval of, or any
exemption by, any Governmental Entity or other public or private
third party, required or appropriate to be obtained or made by OCGT
or Purchaser or any of OCGT's related entities or subsidiaries in
connection with the Purchase, or the taking of any action
contemplated thereby or by this Agreement.
4.4 OCGT Board of Directors and Officers. The current directors of
OCGT shall resign as of the Closing Date after appointing
successors designated by Purchaser.
4.5 Current Business of OCGT. As soon as reasonably possible prior
to the Closing, OCGT shall take such steps as may be necessary or
appropriate to transfer all of its assets and liabilities to its
wholly-owned subsidiary, PrimeCare Systems, Inc. ("PrimeCare") and
to complete the distribution of all of the shares of PrimeCare, to
the shareholders of record of OCGT as of December , 2005.
4.6 Purchaser's Covenant. Purchaser agrees and covenants that, after
the Closing, OCGT shall not incur any indebtedness for borrowed
money, or guarantee any such indebtedness, or issue or sell any debt
securities or warrants or rights to acquire any debt securities of
such party, or guarantee any debt securities of others at any time
prior to OCGT receiving the Contributed Capital.
4.7 Purchaser's Default. In the event that Purchaser fails to
comply with the provisions of Section 2.2 (l) within seventy five
(75) days after the Closing (the "Default Date"), then, in that
event, Purchaser shall return to Edward C. Levine, the Purchased
Shares issued hereunder in accord with the terms and conditions of
the Escrow set forth in Section 4.8 herein.
4.8 Escrow. As a condition of OCGT agreeing to the sale, at Closing
the Purchaser shall: (a) place all of the Purchased Shares received
by the Purchaser into an escrow to be held by Luke Zouvas, Esq., the
Escrow Agent, upon the terms and conditions hereinafter set forth,
and place in escrow with the same Escrow Agent resignations of each
and every officer and director of OCGT appointed upon, and
subsequent to, the Closing as more particularly set forth hereafter;
(b) The Escrow Agent shall hold the escrow documents from the date
of Closing until the Default Date, at which time the Escrow Agent
shall deliver escrow documents to Edward C. Levine and the Purchased
Shares shall be cancelled on the books and records of OCGT and the
officers and directors shall step down from positions in accord with
their resignations. Notwithstanding (b) above should the Purchaser
prior to the Default Date deliver to OCGT (i) the Contributed
Capital and (ii) the audited financials relating thereto then, in
such event, the escrow documents shall be delivered by Escrow Agent
to the Purchaser.
4.9 Events of Default. An event of default is: the failure to
deliver the Contributed Capital prior to the Default Date; the
failure to deliver the certified financials with the Contributed
Capital prior to the Default Date; the failure to timely wire the
Cash Purchase Price; a breach of Purchaser's Covenant as set forth
in Section 4.6.
4.10 Finder's Fee. Jeffersonian Inc. shall receive at Closing 776
shares of OCGT's Series F Preferred Stock, together with the cash
payment set forth in Section 1.2 above, as full and complete payment
of any finder's fee payable in connection with the transaction
contemplated hereby.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 Termination. This Agreement may be terminated at any time prior
to the Effective Time:
(a) by mutual consent of OCGT and Purchaser;
(b) by either OCGT or Purchaser if there has been a material
breach of any representation, warranty, covenant or agreement
on the part of the other set forth in this Agreement which
breach has not been cured within five (5) business days
following receipt by the breaching party of notice of such
breach, or if any permanent injunction or other order of a
court or other competent authority preventing the
consummation of the Purchase shall have become final and
non-appealable; or
(c) by either OCGT or Purchaser if the Purchase shall not
have been consummated before December 23, 2005.
(d) Purchaser's default as set forth in Section 4.9, in which
case the Cash Purchase Price shall be liquidated damages,
without any liability of OCGT.
5.2 Effect of Termination. In the event of termination of this
Agreement by either Purchaser or OCGT as provided in Section 5.1,
this Agreement shall forthwith become void, and there shall be no
liability or obligation on the part of any party hereto. In such
event, all costs and expenses incurred in connection with this
Agreement, and the transactions contemplated hereby, shall be paid
by the party incurring such expenses.
5.3 Amendment. This Agreement may be amended by mutual agreement of
OCGT and Purchaser, provided that in the case of OCGT, any such
amendment must authorized by its Boards of Directors and its legal
counsel. Any such amendment must be by an instrument in writing
signed on behalf of each of the parties hereto.
5.4 Extension; Waiver. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by OCGT's Board of
Directors and Purchaser, may, to the extent legally allowed, (a)
extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies
in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any
of the agreements or conditions contained herein. Any agreement on
the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument signed on behalf of
such party.
ARTICLE VI
GENERAL PROVISIONS
6.1 Survival of Representations, Warranties and Agreements. All of
the representations, warranties and agreements in this Agreement or
in any instrument delivered pursuant to this Agreement shall survive
the Effective Time for a period of one year from the date of this
Agreement.
6.2 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or mailed by registered or certified
mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be
specified by like notice):
(a) If to OCGT:
OCG Technology, Inc.
56 Harrison Street, Suite 501
New Rochelle, NY 10801
(b) If to Purchaser:
Bobby Vavithis
c/o Law Offices of Luke C. Zouvas
Jamestown Road, San Siego, CA 92117
6.3 Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without
limitation". The phrase "made available" in this Agreement shall
mean that the information referred to has been made available if
requested by the party to whom such information is to be made
available.
6.4 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts
have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
6.5 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership. This Agreement (including the documents and the
instruments referred to herein) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof,
and is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
6.6 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York without regard to
principles of its conflicts of law. Each party hereby irrevocably
submits to the jurisdiction of any New York state court or any
federal court located in the County of Westchester, in the State of
New York in respect of any suit, action or proceeding arising out of
or relating to this Agreement, and irrevocably accept for themselves
and in respect of their property, generally and unconditionally, the
jurisdiction of the aforesaid courts.
6.7 No Remedy in Certain Circumstances. Each party agrees that,
should any court or other competent authority hold any provision of
this Agreement or part hereof or thereof to be null, void or
unenforceable, or order any party to take any action inconsistent
herewith or not to take any action required herein, the other party
shall not be entitled to specific performance of such provision or
part hereof or thereof or to any other remedy, including but not
limited to money damages, for breach hereof or thereof or of any
other provision of this Agreement or part hereof or thereof as a
result of such holding or order.
6.8 Publicity. Except as otherwise required by law or the rules of
the SEC, so long as this Agreement is in effect, no party shall
issue or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by this
Agreement without the written consent of the other party, which
consent shall not be unreasonably withheld.
6.9 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other parties. Subject to the
preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their
respective successors and assigns.
IN WITNESS WHEREOF, this Agreement for Share Exchange has been
signed by the parties set forth below as of the date set forth above.
OCGT Technology, Inc. Purchaser
By: /s/ Edward C. Levine /s/ Bobby Vavithis
-------------------- ------------------
Edward C. Levine Bobby Vavithis