UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
___________________________
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
___________________________
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Consent Solicitation Statement
[ ] Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2))
[ ] Definitive Consent Solicitation Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material under Rule14a-12
ONCOLOGIX TECH, INC.
(Name of Registrant Specified in Charter)
Payment of filing fee (Check the appropriate box):
[ ] No fee required.
[X] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transactions applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
1/50 of 1% of cash and value of securities received in sale
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
$123.96
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[ ] Fee paid previously with preliminary materials
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount previously paid:
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(2) Form, schedule or registration statement no.:
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(3) Filing party:
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(4) Date filed:
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Oncologix Tech, Inc.
__________________, 2008
Dear Stockholder:
This Proxy Statement is furnished to you by the Board of Directors of Oncologix
Tech, Inc., a Nevada corporation ("we", "us", "our", the "Company" or
"Oncologix"), in connection with the Board of Directors' request that you give
your written consent via proxy to each of the following Proposals:
1. Approval of the sale by Oncologix of all of our assets related to our
Oncosphere product, including intellectual property, which make up
substantially all of our assets, to Institut fur Umwelttechnologien
GmbH, a German company ("IUT") (the "Asset Sale Transaction Proposal").
2. Approval of an amendment to the Company's Articles of Incorporation to
authorize the Board of Directors, without the further consent of
shareholders, to adopt any re-capitalization affecting the outstanding
securities of the Company by affecting a forward or reverse split of
all of the outstanding securities of the Company, with appropriate
adjustments to the Company's capital accounts, provided that the
re-capitalization does not require any change in the Articles of
Incorporation, all on such basis and under such circumstances as the
Board of Directors may determine (the "Reverse Stock Split
Authorization Proposal").
3. Approval of an amendment to the Company's Articles of Incorporation to
increase the authorized Common Stock from 200,000,000 shares to
500,000,000 shares and the authorized preferred stock from 10,000,000
shares to 50,000,000 shares (the "Increase in Authorized Shares
Proposal").
Details of these Proposals, the background of and the reasons for them are set
forth in the enclosed Proxy Statement, which you are urged to read carefully.
The Board of Directors believes that the Proposals are in our and your best
interests. In arriving at its decision to recommend the Proposals, the Board of
Directors carefully reviewed and considered the terms and conditions of the
Proposals and the factors described in the enclosed Proxy Statement.
The Board of Directors has approved the Proposals and is requesting the holders
of our outstanding shares of the Company's common stock, $.001 par value (the
"Common Stock") to appoint a proxy to give their written consent to all of the
Proposals. We do not intend to and are not required to have a special meeting to
consider the Proposals under Nevada law.
In accordance with Nevada law and the Company's Bylaws, the Board of Directors
set __________], 2008 as the record date (the "Record Date") for the
determination of the Company's stockholders who are entitled to execute,
withhold or revoke consents relating to the Proposals. Only holders of record as
of the close of business on the Record Date may execute, withhold or revoke
consents with respect to the Proposals. Under Nevada law, in order for the
Proposals to become effective, each Proposal will each require the written
consent of at least a majority of the Company's outstanding shares of Common
Stock.
By Order of the Board of Directors,
/s/ Judy Lindstrom
-----------------------------------
JUDY LINDSTROM
Chief Executive Officer
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ONCOLOGIX TECH, INC.
PROXY STATEMENT
TABLE OF CONTENTS
GENERAL INFORMATION.................................................. 5
What are we asking to you to do ?............................... 5
Who is making the solicitation?................................. 5
Who is paying for the solicitation?............................. 5
Who can consent to the Proposals?............................... 5
What should you do to consent?.................................. 5
How many consents must be granted in favor of each of the
Proposals?.................................................... 5
Can I change or revoke my consent?.............................. 6
PROPOSAL 1 THE ASSET SALE TRANSACTION PROPOSAL...................... 6
Summary Terms of Asset Sale Transaction......................... 6
About IUT....................................................... 9
About the new IUT Subsidiary.................................... 9
Reasons for the Asset Sale...................................... 10
Past Contacts and Negotiations between the Company and
Third Parties................................................. 10
Reason for Acceptance of IUT Proposal........................... 11
Further Operations.............................................. 11
PROPOSAL 2 REVERSE STOCK SPLIT AUTHORIZATION PROPOSAL............... 11
Regulatory Proposal............................................. 12
Approval Required............................................... 12
Reason for Proposal............................................. 12
PROPOSAL 3 THE INCREASE IN AUTHORIZED SHARES PROPOSAL............... 12
Regulatory Proposal............................................. 12
Approval Required............................................... 13
Reason for Proposal............................................. 13
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT....... 14
FORWARD LOOKING STATEMENTS........................................... 15
EXHIBIT A ASSET PURCHASE AGREEMENT.................................. 16
EXHIBIT B PRO FORMA FINANCIAL STATEMENTS............................ 31
EXHIBIT C FORM OF PROXY CARD........................................ 36
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ONCOLOGIX TECH, INC.
PROXY STATEMENT
GENERAL INFORMATION
What are we asking you to do?
The Company is asking you to consent via proxy to three corporate
actions: (1) the Asset Sale Transaction Proposal, (2) the Reverse Stock Split
Authorization Proposal and (3) the Increase in Authorized Shares Proposal.
Please see the sections titled "PROPOSAL 1 -- THE ASSET SALE TRANSACTION
PROPOSAL", "PROPOSAL 2 -- THE REVERSE STOCK SPLIT AUTHORIZATION PROPOSAL" and
"PROPOSAL 3 -- THE INCREASE IN AUTHORIZED SHARES PROPOSAL" for the full text of,
and a more complete description of, the Proposals.
Who is making the solicitation?
The solicitation is being made by the Company's Board of Directors.
YOUR BOARD OF DIRECTORS HAS APPROVED EACH OF THE PROPOSALS SET FORTH HEREIN.
ACCORDINGLY, THE BOARD RECOMMENDS YOU CONSENT TO PROPOSALS 1, 2 AND 3.
Who is paying for the solicitation?
The Company will pay the costs of preparing and disseminating this
Proxy Statement and the material enclosed herewith. We will, upon request,
reimburse brokerage firms, banks and others for their reasonable out-of-pocket
expenses in forwarding proxy material to beneficial owners of stock or otherwise
in connection with this solicitation of consents.
Who can consent to the Proposals?
Only holders of record of our Common Stock at the close of business on
__________, 2008 have the right to consent to the Proposals. You have the right
to consent to the Proposals with respect to shares of Common Stock you held on
that date. As of the Record Date, __________, 2008, there were ________ shares
of our Common Stock outstanding.
What should you do to consent?
You may consent to the Proposals by signing the Proxy Card attached to
this Proxy Statement and returning it in the enclosed postage-paid envelope. A
pre-addressed, postage-paid envelope is provided for this purpose.
Alternatively, you may consent to the Proposals by marking, signing and dating
the enclosed form of Proxy Card as promptly as possible and returning it by fax
to (616) 977-9955 or by scanning the signed Proxy Card and sending it by email
to ______________________.
How many consents must be granted in favor of each of the Proposals?
The Proposals will each require the written consent of at least a
majority of the Company's outstanding shares of Common Stock. Thus, any
abstentions, "broker non-votes" (shares held by brokers or nominees as to which
they have no discretionary authority to consent on a particular matter and have
received no instructions from the beneficial owners or persons entitled to
consent thereon), or other limited proxies will have the effect of a rejection
of the Proposals.
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Can I change or revoke my consent?
Yes. If you deliver a consent by mail, by facsimile or via the
Internet, you have the right to revoke your consent in writing (by mailing or by
facsimile of another Consent Card indicating you do not consent to the
Proposal(s), which Card bears a later date) or via the Internet (by voting
online at a later time), provided that any revocation of your Consent will only
be effective if the Company has not already received Consents from a majority of
the Company's outstanding shares of Common Stock.
PROPOSAL 1 - THE ASSET SALE TRANSACTION PROPOSAL
A PROPOSAL TO SELL SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY,
INCLUDING THE ASSETS OF ITS WHOLLY-OWNED SUBSIDIARY, TO INSTITUT FUR
UMWELTTECHNOLOGIEN GMBH, A GERMAN COMPANY.
(ITEM 1 ON THE CONSENT CARD)
As of August 18, 2008, the Board of Directors, believing it to be in the
best interests of the Company and its shareholders, approved the sale (the
"Asset Sale Transaction") of the assets related to our Oncosphere product, which
make up substantially all of the assets of the Company, to Institut fur
Umwelttechnologien GmbH, a German company ("IUT"). Pursuant to the terms of an
Asset Purchase Agreement, dated August 18, 2008 (the "Asset Purchase
Agreement"), the Company is to sell substantially all of its assets to IUT in
consideration of the payment of $50,000 in cash, the assumption of approximately
$205,000 of liabilities that are related to the Oncosphere, the issuance to the
Company of a minority equity interest in a new company established by IUT to
continue the development and commercialization of the Oncosphere and the right
to royalties of three percent on the Net Sales of the new company. All of the
proceeds of the sale, including royalty payments, if any, will be retained by
Oncologix and will not be distributed to the shareholders.
Summary Terms of Asset Sale Transaction
The following summary highlights the material terms of the proposed
Asset Sale Transaction involving our sale of all the assets related to our
Oncosphere product (the "Assets"), which make up substantially all of our
assets, to Institut fur Umwelttechnologien GmbH, a German company ("IUT")
pursuant to the terms of the Asset Purchase Agreement, substantially in the form
of Appendix A. This summary is not a complete statement of all information,
facts or materials necessary for you to consent to the Proposal. You should read
this Proxy Statement, the Asset Purchase Agreement and the other materials
attached to this Proxy Statement in their entirety to fully understand the
Proposal and its consequences to you.
In this Proxy Statement, references to the "Company", "Oncologix ",
"we", "us" or "our" refer to Oncologix Tech, Inc., a Nevada corporation, and its
subsidiaries. This summary should only be read in conjunction with, and is
qualified in its entirety by reference to, the more detailed information
contained in the Appendices hereto.
The Asset Purchase Agreement
Pursuant to the Asset Purchase Agreement, we will, subject to certain
terms and conditions, including approval by our stockholders, either by the
written consent of a sufficient majority under Nevada law or at a meeting of
stockholders, sell substantially all of our assets to IUT and assign to IUT our
rights under a certain Master License Agreement with the University of Maryland.
IUT will form a new subsidiary, to be called, "IUT Medical Gmbh" ("IUTM"), to
hold the Assets, complete the development and commercialization of the
Oncosphere and such other radiation-based medical products as it may deem
appropriate. IUTM will be organized as a German "Gesellschaft mit beschranker
Haftung", a form of business organization similar to a limited liability company
in the United States.
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It is important to note that among the conditions to the Closing is a
requirement that the University of Maryland consent to a modification of the
Master License Agreement that is acceptable to IUT. While such consent is
anticipated, it had not been granted at the date on which this Proxy Statement
was filed with the SEC. Such modification is expected to include a postponement
to a suitable date for the achievement of a critical milestone event, now set at
September 16, 2008.
Purchase Price
Oncologix will receive the following consideration for this sale: (a)
$50,000 in cash at the Closing; (b) the assumption by IUT of those of our
liabilities (approximately $205,000) that are directly related to our
development of the Oncosphere product; (c) the issuance to us of a twenty
percent (20%) interest in IUTM; and (d) the right to royalties equal to three
percent (3%) of the Net Sales of IUTM (as defined in the Asset Purchase
Agreement). We, IUT and IUTM will also enter into certain covenants, described
below. We estimate that costs associated with Asset Sale Transaction related
expenses (consisting of accounting and legal costs and proxy solicitation
expenses will be approximately $20,000. On that basis, we estimate that the net
cash proceeds from the sale will be approximately $30,000.
After the Closing of the asset sale, we propose to enter into
discussions with IUTM with a view to obtaining marketing rights to the
Oncosphere, and possibly other IUTM products, in exchange for a decrease in the
royalties to become due to us or even a possible relinquishing of all royalties
if our Board of Directors deems the marketing rights to be of greater value than
the royalty payments.
The Assets to be Sold
The Assets being sold to IUT consist of any patent rights, copyrights,
software (including all source codes), trade secrets, scientific knowledge and
technical information, inventions, know how, developments and improvements, data
and other intellectual property, and know how owned, held by or otherwise being
in the lawful possession of Oncologix, relating to the Oncosphere System,
including, subject to listing, further discovery and identification, (1)
assignment of the right to use the product name "Oncosphere", (2) assignment of
the patent license agreement from the University of Maryland, covering the
technology supporting the Oncosphere System, (3) our rights under our sublicense
agreement with Fountain Pharmaceuticals, Inc., (4) all design related
documentation kept and contained in the Oncologix document control system, (5)
manufacturing and development equipment set forth on Oncologix asset listings,
and (6) Oncosphere product inventory in the possession and control of Oncologix
or any Oncologix vendor, all as specifically listed in the Asset Purchase
Agreement.
Liabilities to be Assumed
At the closing of the Asset Sale Transaction, IUT will assume and agree
to pay, perform and discharge all obligations of Oncologix related to the
development of the Oncosphere product (approximately $205,000), specifically
listed in the Asset Purchase Agreement.
Representations and Warranties
The Asset Purchase Agreement contains customary representations and
warranties from each of the parties relating to, among other things, their
authority to enter into the Asset Purchase Agreement. Certain representations
and warranties were made as of specific dates and may be subject to important
qualifications, limitations and supplemental information agreed to in
negotiating the terms of the Asset Purchase Agreement.
Certain Covenants
The Asset Purchase Agreement contains customary covenants from each of
the parties.
Superior Offers
The Asset Purchase Agreement provides that in the event that we receive
an unsolicited proposal that the Board of Directors has in good faith concluded
(after consultation with its legal counsel) that such proposal will lead to a
superior offer and that the failure to consider such proposal would be
inconsistent with its fiduciary obligations under applicable law, we will be
7
permitted to: (i) furnish nonpublic information to the third party making such
proposal, and (ii) engage in negotiations with the third party with respect to
the proposal. Further, if after consultation with legal counsel and a financial
advisor, the Board of Directors determines that the proposal constitutes a
superior offer, we will be permitted to withdraw our recommendation to the
stockholders to approve the Asset Sale Transaction and enter into an agreement
with respect to the proposal.
Conditions to Closing
The obligations of the parties to consummate the Asset Sale Transaction
are subject to certain customary closing conditions, including, among other
things, that the representations and warranties are accurate as of the closing,
the covenants have been complied with, there has been no material adverse
effect, with respect to, among other things, the assets being acquired by IUT,
and that the necessary consents and approvals have been obtained (including
approval of the Asset Sale Transaction by our stockholders and an agreement to a
modification to the Master License Agreement by the University of Maryland).
Costs
The Asset Purchase Agreement provides that the parties will be
responsible for their own costs and expenses incurred in connection with the
Asset Sale Transaction. Any sales taxes will be paid by IUT.
Regulatory Approvals
We believe that no state or federal regulatory approval is required to
be obtained by us in connection with the Asset Sale Transaction. In addition, we
have not made any representations or warranties as to whether any export
licenses or permits are required in connection with the Asset Sale Transaction.
However, pursuant to the Asset Purchase Agreement, IUT is responsible for (i)
determining whether any export licenses or permits are required in connection
with the Asset Sale Transaction, and (ii) obtaining any such export licenses or
permits.
Dissenters' or Appraisal Rights
Under Nevada law, our stockholders are not entitled to dissenters' or
appraisal rights for their shares in connection with the Transaction.
Accounting Treatment
We will record the Asset Sale Transaction in accordance with accounting
principles generally accepted in the United States. Upon completion of the
disposition, we expect to recognize a pre-tax gain equal to the difference of
the cash proceeds received at closing plus any liabilities assumed by IUT plus
the value of our interest in IUTM which we believe will be approximately
$367,000, based upon a currency exchange rate as of August 18, 2008. We will
recognize expenses associated with the Asset Sale Transaction as costs are
incurred. The total Asset Sale Transaction expenses expected to be incurred are
approximately $________ before taxes.
Certain Federal and State Income Tax Consequences
The Asset Sale Transaction will be a taxable transaction for us. We
will realize gain or loss with respect to each asset sold measured by the
difference between the proceeds received by us on such sale and our tax basis in
the assets sold. For purposes of calculating the amount of our gain or loss, the
proceeds received by us will include the cash received, the amount of our
liabilities that are assumed and any other consideration we receive for our
assets. The tax on the Asset Sale Transaction has been reduced by net operating
loss carryforwards. Utilization of the net operating loss carryforwards will be
limited if a change in the Company's ownership should occur as defined by
Section 382 and Section 383 of the Internal Revenue Code.
Interests of Certain Persons in the Asset Sale Transaction
When considering the recommendation of our Board of Directors, you
should be aware that certain former members of our Board of Directors and
executive officers may have interests in the Asset Sale Transaction other than
their interests as our stockholders generally. These interests may arise from
their future engagement as consultants to IUTM. The members of our Board of
Directors were aware of these additional interests, and considered them, when
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they approved the Asset Sale Transaction and the Asset Purchase Agreement. To
our knowledge, there are no present agreements relating to any engagement with
former members of our Board of Directors. In addition, Judy Lindstrom, our
President, Chief Executive Officer and a member of our Board of Directors is
expected to become a member of the Board of Directors of IUT, representing the
interest of Oncologix. Compensation for that service, if any, is expected to be
nominal.
Effect of the Asset Sale Transaction on the Company
If our stockholders approve the Asset Sale Transaction, the Board of
Directors currently expects the closing of the Asset Sale Transaction to occur
within sixty (60) days from the date of this Proxy Statement, provided all
conditions to closing are satisfied or waived. After the closing, we expect to
continue to participate as voting members of IUTM and to apply any proceeds from
any sale of such interest or any royalties received from IUTM to general
corporate purposes including continuing efforts to seek acquisitions and new
ventures.
Required Approval and Board Recommendation
The Board of Directors has concluded that the Asset Sale Transaction is
in the best interests of our stockholders and has approved the Asset Sale
Transaction, subject to the approval of the holders of a majority of our
outstanding Common Stock. The Board of Directors recommends that you "CONSENT"
to the Proposal.
About IUT
IUT was founded by a group of German scientists in 1992 as a privately
owned German "Gesellschaft mit beschranker Haftung", a form of business
organization similar to a limited liability company in the United States. It is
concentrated on manufacturing special analytic devices and advanced technology
developments and has extensive experience in isotope technology, spectroscopy,
sensor development, plasma and laser technology, radiation measurement and
analytical chemistry. Its services include the development of new measuring
instruments, environmental technologies, prototypes and a series of small
instruments. Since 1993, it has produced high quality radioactive labeled
compounds for the medical, pharmacy and life science industries. IUT is located
in a science and technology park in Berlin (Volmerstrasse 7B, D-12489 Berlin HRB
46 572 Germany) and currently has 25 highly skilled employees.
IUT maintains a website at http://www.iut-berlin.info/8.0.html?&L=1. IUT's
phone number is 49 30 6392-5511.
About the new IUT Subsidiary
IUT has formed a new subsidiary, also as a German "Gesellschaft mit
beschranker Haftung" (Gmbh), called IUT Medical Gmbh ("IUTM") to acquire our
Oncosphere assets, complete the development and commercialization of the
Oncosphere and possibly other radiation based medical products. A German Gmbh is
controlled by its owners or members, who have voting power in proportion to
their ownership interests. Because we expect to own initially a 20% interest in
IUTM, we expect to have 20% of the voting power of IUTM. We will have the right
to designate a representative to attend and exercise our right to vote at
meetings of the owners.
The initial ownership interests in IUTM are expected to be allocated as
follows:
a. 20% to Oncologix in consideration of our agreement to enter
into and perform under the Asset Purchase Agreement;
b. 40% to IUT in consideration of its capital contribution of
(euro)500,000 (each Euro is equivalent to approximately
$1.46910 in United States currency as of August 18, 2008);
its expenses and efforts in connection with the organization
of IUTM; its agreeing to provide facilities and sell raw
materials to IUTM as provided in the Asset Purchase
Agreement; its making available to IUTM of (i) intellectual
property owned by IUT necessary or useful in the conduct of
business by IUTM and (ii) the use of IUT's licenses and
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permits necessary for the handling and processing of
radioactive materials. Under the terms of the Asset Purchase
Agreement, IUT will provide appropriate office and plant
facilities to IUTM at IUT's cost for the same. IUT will also
sell radiation materials to IUTM for use in the manufacture
of IUTM's products at IUT's cost, as defined in the Asset
Purchase Agreement. IUTM will also have the right to act as
the exclusive distributor of IUT's products to users in the
medical device industry; and
c. 40% is reserved for issuance to future investors in IUTM and
for issuance as compensation to key employees, consultants,
suppliers and the like.
If at any time any owner of IUTM determine to sell all or part of its
ownership interest in IUTM, that owner must first offer it to IUTM and then the
other owners of IUTM at the same price and under the same terms as may be
offered by an unrelated party. The consent of at least 75% of the voting power
of IUTM will be necessary for a sale of that company or all of its assets. Upon
any such sale or liquidation, each owner will be entitled to receive a share of
the net proceeds in proportion to its ownership interest at the time.
Reasons for the Asset Sale
As has been described in the various Reports we have filed with the
Securities and Exchange Commission ("SEC"), we have always relied on continued
financing from investors and lenders to remain in business. During December
2007, it became apparent that the Company's efforts to raise adequate additional
funds from investors would not succeed. It is believed that this was due to a
combination of causes; technical difficulties that required an increase in both
the amount of funds and the period of time required for completion of the
Oncosphere development process and adverse conditions in the securities markets.
Because cash on hand was insufficient to fund continued Oncosphere development
activities it became necessary to cease operations and release the Company's
employees. The Board of Directors then concluded that the only way to assure the
continuance of the Oncosphere development effort would be to sell the Company's
assets to a party with the financial ability to continue the effort.
Accordingly, after discussions with various parties, as described below, the
Board of Directors have determined that the Asset Sale Transaction is prudent at
this time and in the best interests of the Company's shareholders the holders of
its outstanding convertible debt.
Past Contacts and Negotiations between the Company and Third Parties
During the period between December 1, 2007 and April 30, 2008, the
Company contacted several participants in the medical radiation industry to
determine any interest in entering into collaboration with the Company or in
purchasing the Oncosphere assets. Although there were initial expressions of
interest from two companies in the industry, they both decided not to pursue the
matter.
On or about February 11, 2008, Mr. Andrew M. Green, then a director and
Chief Executive Officer of the Company, advised us that he, together with Mr.
Adam G. Lowe, then also a director and President of the Company, and another
party had formed a new entity with a view to purchasing the Oncosphere assets
from the Company. On February 18, 2008 Mr. Green, as Principal of that entity,
submitted such a proposal to the Company and he and Mr. Lowe then resigned as
officers and directors of the Company, stating as their reason the wish to avoid
an appearance of a conflict of interest. That proposal, which was then the only
proposal received by the Company, was the subject of discussions between Mr.
Green and the Company and tentative terms were agreed upon, subject to the
formulation of a definitive agreement and its approval by the shareholders of
the Company. However, on or about February 27, 2008, Mr. Green advised us that
there was reason to believe that one or two of the Company's principal
shareholders would oppose the proposed transaction and that the proposal was
withdrawn.
On or about March 1, 2008, representatives of the Company were
contacted by an investment banker, who advised that he proposed to form a new
entity to acquire the Oncosphere assets and that he was confident of the
availability of the necessary funds from venture capital sources. Subsequent
discussions resulted in the receipt of a non-binding letter of intent from the
investment banker proposing the acquisition of the Oncosphere assets in
consideration of a cash payment, the assumption of Oncosphere-related
liabilities, royalties on future Oncosphere sales and the issuance to the
Company of a minority equity position in a new entity to be formed by him.
10
On or about March 19, 2008 the Company received a proposal from IUT for
the acquisition of the Oncosphere assets and subsequent discussions resulted in
the terms embodied in the Asset Purchase Agreement.
Reason for Acceptance of IUT Proposal
Although the respective prices and other financial terms offered by the
investment banker and by IUT were substantially equivalent, the Board of
Directors determined to accept the IUT proposal for the following reasons:
o IUT is an established company in the medical radiation
industry with personnel skilled and experienced in the field
and with the necessary plant and equipment to continue the
Oncosphere development. Furthermore, IUT and certain of its
personnel had been engaged as consultants to the Company in
the development of the Oncosphere and were already familiar
with the underlying technology and the product. On the other
hand, the investment banker would form a new organization to
acquire the necessary plant and equipment and seek out and
engage qualified personnel.
o While it would be necessary for both the investment banker
and IUT to seek financing for the Oncosphere project, it was
the judgment of the Company's Board of Directors that IUT
would have a greater likelihood of success because it was an
established company with experience in the field.
Furthermore, IUT had represented to the Company that it had
a high degree of confidence that it would obtain a
significant German Government grant for continued
development efforts whereas the investment banker would be
completely dependent on private sources of capital.
Future Operations
We plan, upon approval of the Asset Sale Transaction, to seek to obtain
marketing rights to the Oncosphere and possibly other IUTM products and to seek
other product opportunities in the medical field. We have engaged in preliminary
discussions relative to marketing rights with IUT, but there is no assurance
that we will be successful in obtaining such marketing rights. All of the
Company's plans for the future are dependent on acquiring additional investor
financing. There can be no agreement as to, nor any assurance that we can
acquire additional financing on commercially acceptable terms, if at all, and if
we raise capital through additional equity financing, the ownership interests of
our existing shareholders may be diluted. We do not intend to become an
Investment Company.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU CONSENT
TO THE PROPOSAL TO APPROVE THE ASSET SALE TRANSACTION PURSUANT TO THE ASSET
PURCHASE AGREEMENT.
PROPOSAL 2 - REVERSE STOCK SPLIT AUTHORIZATION PROPOSAL
A PROPOSAL TO AMEND THE ARTICLES OF INCORPORATION OF THIS CORPORATION TO
AUTHORIZE THE BOARD OF DIRECTORS, WITHOUT THE CONSENT OF SHAREHOLDERS,
TO ADOPT A RE-CAPITALIZATION AFFECTING THE OUTSTANDING SECURITIES OF THE
COMPANY BY EFFECTING A FORWARD OR REVERSE SPLIT OF ALL OF THE
OUTSTANDING SECURITIES OF THE COMPANY, WITH APPROPRIATE ADJUSTMENTS TO
THE COMPANY'S CAPITAL ACCOUNTS, PROVIDED THAT THE RE-CAPITALIZATION DOES
NOT REQUIRE ANY CHANGE IN THE ARTICLES OF INCORPORATION OF THE COMPANY.
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(ITEM 2 ON THE CONSENT CARD)
Regulatory Approval
Under this Proposal, we must file a Certificate of Amendment to our
Articles of Incorporation with, and have it accepted by, the Nevada Secretary of
State to amend our Articles of Incorporation.
Approval Required
On September 2, 2008, the Board of Directors adopted a resolution
setting forth the proposed terms of the Amendment and declared it advisable and
in the best interests of the Company and its stockholders. Pursuant to Section
78.390 of the Nevada Revised Statutes, the Amendment requires the approval of
shareholders holding a majority of the outstanding shares. As of the Record
Date, the Common Stock was the only class of outstanding voting securities. The
holders of the Common Stock are entitled to one vote for each share.
Reason for Proposal
This amendment, if adopted, will authorize the Board of Directors to
effect a "stock split" or "reverse split" of the Company's outstanding capital
stock without the necessity of obtaining shareholder approval. Such action may
be taken, for example, as a means of facilitating further financing or
increasing the per share price of outstanding stock to meet the listing
requirements of a registered stock exchange. By eliminating the need for
shareholder action, the Company would be able to take such action without
incurring the time and expense required to obtain shareholder approval.
THE BOARD OF DIRECTORS RECOMMENDS THAT SHAREHOLDERS CONSENT TO THE
PROPOSAL TO AMEND THE COMPANY'S ARTICLES OF INCORPORATION, WITHOUT THE
CONSENT OF SHAREHOLDERS, TO ADOPT A RE-CAPITALIZATION AFFECTING THE
OUTSTANDING SECURITIES OF THE COMPANY BY EFFECTING A FORWARD OR REVERSE
SPLIT OF ALL OF THE OUTSTANDING SECURITIES OF THE COMPANY, WITH
APPROPRIATE ADJUSTMENTS TO THE COMPANY'S CAPITAL ACCOUNTS, PROVIDED
THAT THE RE-CAPITALIZATION DOES NOT REQUIRE ANY CHANGE IN THE ARTICLES OF
INCORPORATION OF THE COMPANY.
PROPOSAL NO. 3
TO AMEND THE ARTICLES OF INCORPORATION OF THIS CORPORATION TO AUTHORIZE
AN INCREASE IN THE NUMBER OF SHARES OF COMMON STOCK, $0.001 PAR VALUE,
FROM 200,000,000 SHARES TO 500,000,000 SHARES AND THE NUMBER OF PREFERRED
SHARES FROM 10,000,000 SHARES TO 50,000,000 SHARES
(ITEM 3 ON THE CONSENT CARD)
Regulatory Approval
Under this Proposal, we must file a Certificate of Amendment to our
Articles of Incorporation with, and have it accepted by, the Nevada Secretary of
State to amend our Articles of Incorporation.
Approval Required
On September 2, 2008, the Board of Directors adopted a resolution
setting forth the proposed terms of the Amendment and declared it advisable and
in the best interests of the Company and its stockholders. Pursuant to Section
12
78.390 of the Nevada Revised Statutes, the Amendment requires the approval of
shareholders holding a majority of the outstanding shares. As of the Record
Date, the Common Stock was the only class of outstanding voting securities. The
holders of the Common Stock are entitled to one vote for each share.
Reason for Proposal
This amendment, if adopted, will provide for a sufficient number of
shares for issuance in exchange for the possible acquisition of additional
assets or business combinations with other corporations and for the use of stock
and stock purchase options as compensation in recruiting qualified employees,
consultants and directors.
The Board of Directors' authority to establish the rights and
preferences of any series of preferred stock prior to the issuance of any such
series and to issue preferred stock in one or more series, without further
approval of stockholders of the Company, remains unchanged.
THE BOARD OF DIRECTORS RECOMMENDS THAT SHAREHOLDERS CONSENT TO THE
PROPOSAL TO AMEND THE COMPANY'S ARTICLES OF INCORPORATION TO
AUTHORIZE AN INCREASE IN THE NUMBER OF SHARES OF COMMON STOCK, $0.001 PAR
VALUE, FROM 200,000,000 SHARES TO 500,000,000 SHARES AND THE NUMBER OF
PREFERRED SHARES FROM 10,000,000 SHARES TO 50,000,000 SHARES
13
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Name and Address Amount and Nature Percent
Title of Class of Beneficial Owner (2) of Beneficial Owner (1) of Class (1)
- -------------- ----------------------- ----------------------- ------------
Common Stock Judy Lindstrom 113,333 (3) 0.10%
Common Stock Michael Kramarz 255,000 (4) 0.22%
Common Stock Barry Griffith 499,000 (5) 0.44%
Common Stock Steven Kurtzman, MD 413,333 (6) 0.36%
Common Stock Anthony Silverman 24,020,331 (7) 21.02%
7625 E Via Del Reposo
Scottsdale, AZ 85258
Common Stock Investor Company 9,236,745 (8) 8.12%
c/o Mountainview Asset Mgmt. 5J5131
77 Bloor Street W., 3rd Floor
Toronto, Ontario M4Y 2T1
Common Stock Michele De Gregorio 8,361,369 (9) 7.35%
4550 Northridge Court
West Bloomfield, MI 48323
Common Stock Andrew Kennedy 13,949,738 (10) 12.27%
307 Devonhall Lane
Cary, NC 27518
Common Stock Jeff Franco 13,949,738 (11) 12.27%
6501 Autumn Wind Circle
Clarksville, MD 21029
Common Stock All directors and executive officers 1,280,666 1.11%
as a group
- -----------------------------------
1) A person is deemed to be the beneficial owner of securities that can
be acquired within 60 days from the date set forth above through the
exercise of any option, warrant or right. Shares of Common Stock
subject to options, warrants or rights that are currently exercisable
or exercisable within 60 days are deemed outstanding for computing the
percentage of the person holding such options, warrants or rights, but
are not deemed outstanding for computing the percentage of any other
person. The amounts and percentages are based upon 113,734,944 shares
of Common Stock outstanding as of the Record Date.
2) Unless otherwise noted, the address of each of the beneficial owners
is P.O. Box 8832, Grand Rapids, MI 49518-8832.
3) Includes 113,333 shares subject to vested options.
4) Includes 255,000 shares subject to vested options.
5) Includes 490,000 shares subject to vested options and 9,000 shares of
stock underlying units held.
6) Includes 413,333 shares subject to vested options.
7) Includes 70,000 shares subject to vested options, direct ownership of
21,486,852 shares, direct ownership of 425,479 shares issuable upon
conversion of two promissory notes and 1,998,000 shares and 40,000
warrants to purchase shares owned by Katsinam Partners, LP, of which
Mr. Silverman is the holder of a 17.64% limited partnership interest
and is the General partner with sole power to vote such shares.
14
8) Includes direct ownership of 9,236,745 shares of common stock.
9) Includes direct ownership of 8,361,369 shares of common stock.
10) Includes direct ownership of 13,949,738 shares, of which 8,369,842 are
subject to an escrow agreement.
11) Includes direct ownership of 13,949,738 shares, of which 8,369,842 are
subject to an escrow agreement.
FORWARD LOOKING STATEMENTS
This Proxy Statement contains certain statements that are not
descriptions of historical facts, are forward-looking statements within the
meaning of the safe harbor provisions of Section 27A of the Securities Act of
1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended. These statements relate to future events, including the future
financial performance of Oncologix. In some cases, you can identify
forward-looking statements by terminology such as "may," "will," "should,"
"expects," "plans," "anticipates," "believes," "estimates," "predicts,"
"potential," or "continue," or the negative of such terms and other comparable
terminology. These statements reflect the Company's expectations and estimates
as of the date of this Proxy Statement. Consequently, actual results may differ
materially from those projected in the forward-looking statements. In evaluating
those statements, you should specifically consider various factors, including
the risks, uncertainties and other matters discussed under "CAUTION" and
elsewhere in the Company's Annual Report on Form 10-KSB for the fiscal year
ended August 31, 2007 and in other periodic reports filed with the U.S.
Securities and Exchange Commission. These factors may cause actual results to
differ materially from any forward-looking statements. Oncologix is not
undertaking any obligation to update any forward-looking statements contained in
this Proxy Statement.
DATED: _______________________, 2008
By Order of the Board of Directors
/s/ Michael Kramarz
- ----------------------------------
Michael Kramarz, Secretary
15
EXHIBIT A - ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
The parties to this ASSET PURCHASE AGREEMENT, dated as of August 18, 2008 ("this
Agreement"), are Oncologix Tech, Inc. a Nevada corporation ("Oncologix") and
Institut fur Umwelttechnologien GmbH, a German Company ("IUT"). The parties have
agreed as hereinbelow provided.
Recitals
1.1 Background.
As used in this Agreement, "Oncologix" includes Oncologix Corporation, a Nevada
corporation that is the wholly owned subsidiary of Oncologix. Oncologix agrees
that whenever necessary it will cause Oncologix Corporation to act to fulfill
the obligations of Oncologix under this Agreement. Oncologix has heretofore
conducted a medical device business whose activities, to the extent material to
this Agreement, have been related to the development and testing of a certain
microsphere device called the "Oncosphere". The Oncosphere embodies technology
owned by the University of Maryland and licensed to Oncologix pursuant to a
certain Master License Agreement, a copy of which has heretofore been delivered
to IUT, and certain proprietary improvements, modifications and additional
technology developed by Oncologix.
1.2 Purpose of this Agreement.
IUT wishes to purchase all of the assets, including without limitation the
rights of Oncologix under the Master License Agreement, and assume all of the
liabilities of Oncologix that are related to the Oncosphere, including the
obligations of Oncologix under the Master License Agreement, and Oncologix
wishes to sell such assets and assign its rights under the Master License
Agreement to IUT pursuant to the terms and conditions of this Agreement.
The Transaction
2.1 Purchase and Sale of Assets.
Upon and subject to the terms and conditions hereof, Oncologix shall sell and
IUT shall purchase and acquire from Oncologix, all right, title and interest in
and to the assets (the "Assets") listed and described on Schedule 2.1, in each
case subject to all liens, charges, security interests, restrictions and other
encumbrances arising out of the Assumed Liabilities (hereinbelow defined), and
will apply them to the continued development and commercialization of the
Oncosphere as described in IUT's business plan dated May 29, 2008 (the "Business
Plan"), a copy of which has heretofore been delivered to Oncologix.
2.2 Assumption of Specified Liabilities.
At the Closing (hereinbelow defined), IUT shall agree to assume and perform
after the Closing when and as they become due the liabilities of Oncologix that
are listed and described on Schedule 2.2 (the "Assumed Liabilities") and no
others.
2.3 Formation of New Entity by IUT.
Without limiting any of the obligations of IUT under this Agreement, it is
understood that for the purposes of implementing its performance of such
obligations it will form, under German law, a new Gesellschaft mit beschranker
Haftung called "IUT Medical Gmbh" (hereinafter "IUTM") or, if that name is not
available, such other name as IUT may determine in its reasonable discretion, to
hold the Assets and to complete the development and commercialization of the
Oncosphere and other radiation-based medical products as the occasion may arise,
as described in the Business Plan (hereinabove defined). As of the Closing the
Articles of Association (Gesellschaftsvertrages) and the financial condition of
IUTM shall conform to the description thereof set forth in Article 3 of this
Agreement.
2.4 Consideration.
As consideration for the sale of the Assets by Oncologix to IUT, IUT shall at
the Closing:
Pay to Oncologix in cash the sum of $50,000;
16
Assume, discharge and hold Oncologix harmless from the Assumed Liabilities; and
Cause IUTM to issue and sell to Oncologix, in consideration of this Agreement,
not less than twenty percent (20%) of the duly and validly issued voting equity
membership interest of IUTM, fully paid and non-assessable, such issuance to be
evidenced by the delivery to Oncologix a certificate in a form which shall be
reasonably acceptable to counsel to Oncologix.
2.5 Closing.
The Closing shall occur at the offices of Firetag, Stoss & Dowdell, P.C., 1747
East Morten Avenue, Suite 107, Phoenix, AZ 85020 at 10:00 a.m. on the date on
which all necessary consents to the consummation of this Agreement shall be
obtained (the "Closing Date") or on such other date or at such other location(s)
or starting at such other time as the parties shall agree. At the Closing, each
of the parties shall execute and deliver such further agreements or instruments
as the other party shall reasonably request including without limitation the
deliveries specified in this Agreement.
3. organization, financing and operation of IUTM
The provisions of this Article 3 reflect the intention of the parties to this
Agreement with respect to the formation, organization and operation of IUTM and
all of the organization documents of IUTM shall be interpreted so as to be
consistent with these provisions. In the event of any apparent conflict between
such organization documents and this Article 3, the provisions of this Article
shall govern.
3.1 Business Purpose of IUTM.
The business purpose of IUTM shall be to continue the development and
commercialization of the Oncosphere product as described in the Business Plan
and to acquire, develop and commercialize additional products involving the use
of radiation for medical purposes.
3.2. Units of Ownership Interests.
(a) The ownership interest in IUTM shall be divided into five (5) equal
ownership units ("Units"), each representing twenty percent (20%) of the total
ownership interest. When duly issued in accordance with Article 3 of this
Agreement, each Unit shall be fully paid and non-assessable. The voting power of
IUTM shall be allocated among the owners of IUT in proportion to their
respective ownership interests; that is, the holder of each Unit shall have
twenty percent (20%) of the total voting power of IUTM. Upon any dissolution or
liquidation of IUTM, the assets of IUTM shall be distributed among the owners in
proportion to the number of Units held by each. The vote of 75% of the ownership
interest shall be required for a decision to sell IUTM or substantially all of
its assets.
3.3 Issuance and Reservation of Units.
The Units shall be issued or reserved for issuance as follows:
Two Units (a 40% interest) shall be issued and sold to IUT in
consideration of its capital contribution of (euro)500,000 in unrestricted
funds to be available for the operating expenses of IUTM and IUT's
agreement to perform as further provided in Article 3 and elsewhere in this
Agreement;
One Unit (a 20% interest) shall be issued and sold to Oncologix in
consideration of its agreement to enter into and perform under this
Agreement; and
Two Units (a 40% interest in the aggregate) shall be reserved for
issuance and sale to future investors in IUTM and/or as compensation to key
employees, consultants, suppliers and the like as may be determined from
time to time by the members (shareholders) of IUTM.
3.4 Performance by IUT.
In further consideration of the issuance of Units to Oncologix as provided above
and of its entry into this Agreement, IUT, will (i) at its sole expense,
organize IUTM, select and recruit its personnel, (ii) furnish IUTM, at IUT's
cost therefor, with the facilities necessary and appropriate to the conduct of
business by IUTM as described in the Business Plan, (iii) sell raw materials to
IUTM at a price equal to its own direct manufacturing and overhead costs, (iv)
make available to IUTM intellectual property owned by or licensed to IUT
necessary or useful in the conduct of business by IUTM, (v) the use of IUT's
licenses and permits necessary for the handling and processing of radioactive
materials and (vi) grant to IUTM the right to act as the exclusive worldwide
distributor of IUT's Yttrium90 (Y90)-based products to customers in the medical
device industry.
17
3.5 Royalty.
In further consideration for its entry into and performance under this
Agreement, Oncologix will have the right to a royalty equal to three percent
(3%) of the total Net Sales of IUTM. As used herein, "Net Sales" shall mean the
gross sales revenues and fees received by IUTM or an Affiliate for any products
or services, less the sum of the following: customary trade, quantity and cash
discounts actually allowed and taken; sales or use taxes, excise taxes and
customs duties and other governmental charges included in the invoiced amount;
outbound transportation, shipping and insurance, prepaid or allowed, if
separately itemized on the invoice to the customer; and amounts actually allowed
or credited on returns or rejections of products or services or billing errors.
Net Sales does not include any resales of products after sale by IUTM or an
Affiliate to a third party purchaser. In computing Net Sales, (i) no deductions
from gross revenues and fees will be made for commissions paid to individuals,
whether they be with independent sales agents or regularly employed on the
payroll by IUTM or its Affiliate(s) or for cost of collections, and (ii)
products and services will be considered sold when billed or invoiced, whichever
is first. As used herein, "Affiliate" means any entity which directly or
indirectly controls, is controlled by, or is under common control with IUTM.
"Control" means the right to exercise more than 50% of the voting rights of a
controlled corporation, limited liability company, or partnership, or other
entity or the power to direct or cause the direction of the management or
policies of any other controlled entity.
3.6 Royalty Payments and Reports.
The royalty specified above shall be paid in cash on a quarterly basis. Payments
shall be due and payable twenty (20) days after the fiscal quarter of IUTM
during which such royalty accrued. Each payment shall be accompanied by a
written report, certified as correct by the Chief Executive Officer and Chief
Financial Officer of IUTM, stating the amount of Net Sales, by product if
payable on the Net Sales of more than one product, during such quarter and the
calculation by which the amount of royalty payments were determined.
3.7 Transferability of Units.
An owner may sell or otherwise transfer Units provided that IUTM and the then
other owners will have the right to purchase such interest at the price and
under the terms offered by a bona fide third party. In the event of the death,
insolvency or liquidation of an owner, IUTM has the right to purchase the
interest of such owner at its then fair value. In the event of a dispute as to
such value, the matter shall be resolved in accordance with the arbitration
provisions of this Agreement.
3.8 Co-Sale.
If IUT should determine to sell or otherwise dispose of all or any part of to
sell all or any part of its interest in IUTM (other than sales or other
dispositions to its Affiliates), it shall (i) give Oncologix prompt notice of
such determination and (ii) at least twenty five (25) business days before
entering into a proposed binding agreement for such sale or other disposition,
deliver a copy of such binding agreement to Oncologix. Oncologix shall have
twenty (20) business days after its receipt thereof to elect, by providing
written notice to the IUT, to require the purchaser of the IUT's interest to
purchase a percentage of Oncologix's interest (determined as set forth below) in
IUTM on the same terms and conditions (including, without limitation, the same
purchase price per percentage point of ownership interest in IUTM) set forth in
the agreement between the IUT and the purchaser ("Co-Sale Rights"). For purposes
of the preceding sentence, in connection with any proposed sale, Oncologix may
exercise Co-Sale Rights with respect to the same percentage of its ownership
interest as IUT's ownership interest to be sold in the contemplated transfer
(e.g., if IUT has a 40% Sharing Ratio and is selling all of its owner interest,
100% of IUT's membership interest, is being sold, then Oncologix is entitled to
sell all (100%) of its ownership interest. If the payment for IUT's interest
includes consideration other than cash, IUT, Oncologix and the purchaser shall
agree upon the cash value of the sale and all consideration paid from the
purchaser to the Oncologix for Oncologix's interest shall be in cash. Any
disagreement between IUT and Oncologix concerning the cash value of the sale
shall be resolved in accordance with the arbitration provisions of this
Agreement. In the event Oncologix elects to exercise its Co-Sale Rights pursuant
to this Section 3.8, and the purchaser refuses to purchase Oncologix's interest
in IUTM as provided above, IUT shall not sell its interest to the purchaser
without the written consent of Oncologix, which consent may be withheld in the
sole discretion of Oncologix.
3.9 Information and Reports.
Each owner shall be entitled to receive the annual financial statements of IUTM,
certified as correct by an independent accountant in the manner customary under
German practice and such further information as such owner may from time to time
reasonably request. It is understood that financial information of IUTM is
expected to be material to Oncologix's own financial reports to its shareholders
and to government agencies.
18
3.9 Records.
IUT shall keep true and accurate books of account and records sufficient to
determine and establish the royalties payable to Oncologix under the Agreement
and compliance with the other terms and conditions of this Agreement. Such books
and records shall be kept reasonably accessible for three (3) years following
the end of the calendar quarter to which they pertain and shall be made
available for inspection throughout such three (3) year period by an independent
third party auditor selected by Oncologix for such purposes in accordance with
Section 3.10, below.
3.10 Audits.
Upon the written request of Oncologix and not more than once in each calendar
year, IUT and IUTM shall permit an independent certified public accounting firm
(or other auditor in the case of audits for compliance with license
restrictions) of an internationally recognized standing selected by Oncologix
and reasonably acceptable to IUT and IUTM, at Oncologix's expense, to have
access during normal business hours, and upon reasonable prior written notice,
to those records of IUTM as may be reasonably necessary to verify the accuracy
of any financial reports to Oncologix with respect to the preceding three (3)
years. The auditor shall have the right to inspect all agreements and other
documents relevant to confirm compliance with the royalty provisions of the
Agreement. The accounting firm or auditor will disclose to Oncologix whether the
reports are correct or incorrect and, if incorrect, the amount by which the
reports reveal any underpayment to Oncologix and the reason for such
underpayment. If the accounting firm or other auditor believes IUTM has not
complied with the Agreement, the auditor will so notify IUTM in writing and the
auditor will discuss the matter with IUTM in good faith for sixty (60) days
after receipt of such notice. If the auditor remains convinced that IUTM has not
complied with the royalty provisions of the Agreement, after such discussion,
and IUTM has not agreed to take action which the auditor agrees would remedy
such noncompliance, then the auditor shall disclose to Oncologix the financial
terms of the agreements between IUTM and the non-Affiliate third parties which
are material to such noncompliance. The parties shall resolve any dispute in
accordance with the arbitration provisions of this Agreement.
3.11. Additional Payments; Cost Reimbursement.
If such accounting firm concludes that additional payments were owed to
Oncologix by IUTM during such period, then IUTM shall pay the additional
payments, with interest from the date originally due at an amount equal to the
lesser of the prime rate plus two percent (2%), as published in The Wall Street
Journal, Eastern U.S. Edition, on the last business day preceding such date, or
the maximum amount permitted by applicable law, within thirty (30) days after
the date Oncologix delivers to IUTM such accounting firm's written report unless
the additional payment is disputed by IUTM. If the amount of the underpayment
during any period one (1) year period is greater than ten percent (10%) of the
total amount owed for that year and greater than Ten Thousand United States
Dollars ($10,000), then IUTM shall, in addition, reimburse Oncologix for its
reasonable costs related to such audit.
3.12 Financial Condition of IUTM.
At the Closing, the assets of IUTM shall consist of the Assets acquired pursuant
to this Agreement together with (euro)500,000 in unrestricted funds and IUTM
shall have no liabilities.
4. Representations and Warranties of Oncologix Oncologix represents and warrants
to IUT that:
4.1 Organization.
Oncologix is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada and qualified to do business as a foreign
corporation in each jurisdiction in which failure to do so would have a
materially adverse effect on their business and assets.
4.2 Authority for Transaction.
Subject to the due approval of its shareholders as provided by law, Oncologix
has the full right, power and authority (including full corporate power and
authority) to execute and deliver this Agreement and to perform Oncologix's
obligations hereunder, and to carry out the transactions contemplated in this
Agreement, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally. When
duly approved by its shareholders, this Agreement will constitute the valid and
legally binding obligation of Oncologix, enforceable in accordance with its
terms and conditions.
19
4.3 No Violation or Conflict.
Except as otherwise disclosed on Schedule 4.3 hereto, neither the execution and
the delivery of this Agreement, nor the consummation of the transactions
contemplated hereby (including the assignments and assumptions referred to in
Article 2 above), will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Oncologix is subject or any
provision of the Articles of Incorporation or By-laws of Oncologix.
4.4 Broker's Fees
Oncologix has no liability or obligation to pay any fees or commissions to any
broker, finder or agent with respect to the transactions contemplated by this
Agreement for which IUT could become liable or obligated.
4.5 No Litigation.
There are no actions, suits or proceedings pending, or, to the knowledge of
Oncologix, threatened or anticipated before any court or governmental or
administrative body or agency affecting the Assets, except as set forth on
Schedule 4.5 hereto. Oncologix is not presently subject to any injunction, order
or other decree of any court of competent jurisdiction which affects the Assets.
5. Representations and Warranties of IUT
IUT represents and warrants to Oncologix that:
5.1 Organization.
At the date of this Agreement IUT is and will be at the Closing a Gesellschaft
mit beschranker Haftung validly existing and in good standing under the laws of
Germany and IUTM will at the Closing be a Gesellschaft mit beschranker Haftung,
validly existing and in good standing under the laws of Germany and the above
described Articles of Association or their equivalent under German law.
5.2 Authority
IUT has the full right, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, IUT's Board of Managers has duly authorized the
execution, delivery, and performance of this Agreement by IUT. The Agreement
constitutes the valid and legally binding obligation of IUT, enforceable in
accordance with its terms and conditions, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally.
5.3 No Violation or Conflict.
Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby (including without limitation the
provisions of Article 3, above), will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which IUT is
subject or any provision of the IUT's Operating Agreement or Oncosphere Gmbh's
Articles of Incorporation or Bylaws or their equivalent under German law, or
(ii) conflict with, result in a breach or constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which IUT is a party or by which it
is bound or to which any of its assets is subject, except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, or failure to give notice, would not have a Material adverse
effect on the financial condition of IUT taken as a whole or on the ability of
the parties to consummate the transactions contemplated by this Agreement.
5.4 No Litigation.
There are no actions, suits or proceedings pending, or to IUT's knowledge,
threatened or anticipated before any court or governmental or administrative
body or agency affecting IUT, its property, or its ability to consummate the
transaction contemplated by this Agreement.
5.5 Broker's Fees.
IUT has no liability or obligation to pay any fees or commissions to any broker,
finder or agent with respect to the transactions contemplated by this Agreement
for which Oncologix could become liable or obligated.
20
5.6 Accuracy of Representations or Warranties.
All of IUT's warranties and representations as hereinabove stated shall be true
on the Closing Date and the same shall survive the Closing and be deemed
incorporated, whether explicitly stated therein or not, into all documents or
other instruments delivered by IUT to Oncologix at the Closing. No
representation, warranty, or statement of IUT omits or will omit to state any
material fact necessary to make such representation, warranty, or statement in
this Agreement accurate and not misleading in any material respect.
5.7 Acknowledgements.
IUT and certain of its personnel were, during the period from approximately
October 2006_ until December 31, 2007, engaged by Oncologix as consultants in
the acquisition and use of equipment, conducting development and testing
activities with respect to the Oncosphere. IUT acknowledges that THE ASSETS ARE
BEING SOLD AND DELIVERED TO IUT "AS IS" AND "WHERE IS", and that ONCOLOGIX MAKES
NO WARRANTY WHATSOEVER WITH RESPECT TO THE ASSETS INCLUDING THOSE OF TITLE,
MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE.
5.8 Lawful Conduct of Business.
IUT (which includes for all purposes hereof, IUTM), (a) owns or possesses
sufficient legal rights to all patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, and proprietary rights and
processes necessary for its business as now conducted and as proposed to be
conducted as described in the Business Plan without any known conflict with, or
infringement of, the rights of others, (b) has conducted, is conducting and will
conduct its business as described in the Business Plan so as to comply in all
material respects with all applicable statutes and regulations and (c) has all
requisite power and authority, and all necessary authorizations, approvals and
orders of and from all governmental regulatory officials and bodies, to own its
properties and conduct its business as now conducted and as proposed to be
conducted as described in the Business Plan.
6. Additional Covenants
The parties agree as follows with respect to the period after the Closing:
6.1 Information Concerning IUT and IUTM.
Without limiting any rights which Oncologix (which term for the purposes of this
paragraph shall include its affiliates, successors or assigns) may have as a
member or shareholder of IUTM, and while Oncologix continues as such member or
shareholder, IUT and IUTM (whichever shall be appropriate) shall promptly
furnish to Oncologix, as it may reasonably request, such information in the
English language, including without limitation financial statements prepared in
accordance with generally accepted accounting principles, as shall be required
to permit Oncologix to report a proper value of its interest in IUTM. IUT
acknowledges (i) that Oncologix is registered with the United States Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934 and is
required to report regularly on its financial condition and prospects, (ii) that
for the foreseeable future its interest in IUTM will be material to its own
financial condition and prospects, (iii) that Oncologix will rely on the
accuracy of information so furnished in preparing and filing reports under that
Act and (iv) that any false or misleading statement in such reports may result
in civil and/or criminal penalties.
6.2 Further Agreements.
The parties will, at the Closing, execute and deliver such additional agreements
as they shall determine with respect to such matters as marketing rights,
royalties, etc. when executed, such additional agreements shall be attached to
this Agreement as Exhibit 6.2.
7. Conditions to the Obligations of the Parties
The respective obligations of each party to this Agreement to effect the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of the following conditions:
7.1 Shareholder Approval.
This Agreement and the transactions contemplated hereby shall have been duly
approved and adopted by the shareholders of Oncologix.
7.2 No Injunctions or Restraints: Illegality.
No temporary restraining order, preliminary or permanent injunction or other
order issued by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the transactions shall be in effect,
21
nor shall any proceeding brought by an administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, seeking
any of the foregoing be pending; nor shall there be any action taken, or any
statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the transaction, which makes the consummation of the transaction
illegal.
7.3 Additional Conditions to the Obligations of Oncologix.
The obligations of Oncologix to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of each of the following conditions, any of which may be
waived, in writing, exclusively by Oncologix:
(a) Representations, Warranties and Covenants.
The representations and warranties of IUT in this Agreement shall be true and
correct in all material respects on and as of the Closing as though such
representations and warranties were made on and as of such time and IUT shall
have performed and complied in all material respects with all covenants,
obligations and conditions of this Agreement required to be performed and
complied with by them as of the Closing.
(b) Certificate of IUT.
Oncologix shall have been provided with a certificate executed on behalf of
IUT and IUTM by their respective Presidents and Chief Financial Officers or
Treasurers to the effect that, as of the Closing: (i) all representations and
warranties made by IUT under this Agreement are true and complete in all
material respects; (ii) all covenants, obligations and conditions of this
Agreement to be performed by IUT on or before such date have been so performed
in all material respects and that to the best of their knowledge, after having
consulted with legal counsel and auditors, IUTM has been duly organized and
financed as provided in this Agreement and, except as disclosed in Schedule
7.3(b) attached hereto, has sufficient resources to conduct business as
described in the Business Plan.
(c) Satisfactory Form of Legal Matters.
The form, scope and substance of all legal and accounting matters
contemplated hereby and all closing documents and other papers delivered
hereunder shall be reasonably acceptable to counsel to Oncologix.
(d) Legal Opinion.
Oncologix shall have received a legal opinion from counsel to IUT,
satisfactory in form and substance to Oncologix to the effect that IUT has the
full right, power and authority to execute and deliver this Agreement and to
perform its obligations hereunder, that the execution, delivery, and performance
of this Agreement by IUT has been duly authorized by all necessary corporate
action, that this Agreement constitutes the valid and legally binding obligation
of IUT, enforceable in accordance with its terms and conditions, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally, and that neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including without limitation the provisions of
Article 3, above), will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which IUT is subject or any
provision of the IUT's Operating Agreement or Oncosphere Gmbh's Articles of
Incorporation or Bylaws or their equivalent under German law, or (ii) conflict
with, result in a breach or constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which IUT is a party or by which it is bound
or to which any of its assets is subject, except where the violation, conflict,
breach, default, acceleration, termination, modification, cancellation, or
failure to give notice, would not have a material adverse effect on the
financial condition of IUT taken as a whole or on the ability of the parties to
consummate the transactions contemplated by this Agreement.
(f) No Material Adverse Changes.
There shall not have occurred any event, fact or condition that has had or
reasonably would be expected to have a material adverse effect on IUT.
7.4 Additional Conditions to the Obligations of IUT.
The obligations of IUT to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of each of the following conditions, any of which may be
waived, in writing, exclusively by IUT:
(a) Representations, Warranties and Covenants.
The representations and warranties of Oncologix in this Agreement shall be
true and correct in all material respects on and as of the Closing as though
such representations and warranties were made on and as of such time and
22
Oncologix shall have performed and complied in all material respects with all
covenants, obligations and conditions of this Agreement required to be performed
and complied with by it as of the Closing.
(b) License Modification.
The Master License Agreement between Oncologix and the University of
Maryland, Baltimore, originally dated September 16, 2003 and modified by an
Agreement and Consent, dated July 26, 2006, shall have been duly assigned to
IUTM and shall have been modified to the reasonable satisfaction of IUT.
(c) Certificate of Oncologix.
IUT shall have been provided with a certificate executed on behalf of
Oncologix by its President and Chief Financial Officer to the effect that, as of
the Closing:
(i) all representations and warranties made by Oncologix under this
Agreement are true and complete in all material respects; and
(ii) all covenants, obligations and conditions of this Agreement to be
performed by Oncologix on or before such date have been so performed in all
material respects.
(e) Satisfactory Form of Legal and Accounting Matters.
The form, scope and substance of all legal matters contemplated hereby and
all closing documents and other papers delivered hereunder shall be reasonably
acceptable to the IUT's counsel.
(f) Legal Opinion.
IUT shall have received a legal opinion from legal counsel to Oncologix,
satisfactory in form and substance to IUT to the effect that Oncologix is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and qualified to do business as a foreign corporation in
each jurisdiction in which failure to do so would have a materially adverse
effect on their business and assets, that Oncologix has the full right, power
and authority (including full corporate power and authority) to execute and
deliver this Agreement and to perform Oncologix's obligations hereunder, and to
carry out the transactions contemplated in this Agreement, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and that this Agreement constitutes
the valid and legally binding obligation of Oncologix, enforceable in accordance
with its terms and conditions.
8. General and Miscellaneous
8.1 Expenses.
Except as otherwise provided in this Agreement, IUT and Oncologix each agree to
pay, without right of reimbursement from any other, the costs incurred by such
party incident to the preparation and execution of this Agreement and
performance of their respective obligations hereunder, whether or not the
transactions contemplated by this Agreement shall be consummated, including,
without limitation, the fees and disbursements of legal counsel, accountants and
consultants employed by the respective parties in connection with the
transactions contemplated by this Agreement; provided, however, that IUT shall
pay sales and other transfer taxes, if any.
8.2 Assignability.
Neither party may assign or transfer its rights and obligations under this
Agreement without the prior written approval of the other party; provided,
however, Oncologix may assign its rights under this Agreement to an affiliate of
Oncologix or as security to any of its lenders. This Agreement shall inure only
to the benefit of and be binding upon the parties hereto and their respective
successors and representatives and permitted assigns.
8.3 Applicable Law.
This Agreement shall be construed, interpreted and enforced in accordance with,
and governed by, the laws of the State of Arizona without reference to any
doctrine of the conflict of laws.
8.4 Counterparts.
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but all of which together shall constitute the same
instrument.
23
8.5 Entire Agreement.
This Agreement and the agreements, instruments, schedules and other writings
referred to in this Agreement contain the entire understanding of the parties
with respect to the subject matter of this Agreement. There are no restrictions,
agreements, promises, warranties, covenants or undertakings other than those
expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. It may not be amended, changed or terminated orally, and no attempted
change, termination or waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the amendment, change,
termination or waiver is sought to be enforced.
8.6 Schedules and Exhibits.
Each exhibit hereto shall be attached hereto and shall be considered a part
hereof as if set forth in the body hereof in full.
8.7 Disputes.
Any dispute, disagreement, claim or controversy arising out of or relating to
this Agreement, any document or instrument delivered pursuant to, in connection
with, or simultaneously with this Agreement, or any breach of this Agreement
("Dispute") shall be subject to the negotiation, mediation and arbitration
provisions contained herein. Each party to a Dispute shall make every reasonable
effort to meet in person and confer for the purpose of resolving the Dispute by
good faith negotiation before resorting to any legal proceedings or any other
dispute resolution procedure. If the Dispute cannot be settled through
negotiation, the parties shall make every reasonable effort to settle the
Dispute by mediation by a single mediator qualified to consider the matter in
dispute before resorting to any legal proceedings or any other dispute
resolution procedure. If a Dispute cannot be settled through mediation, the
Dispute shall be finally settled by arbitration to be held in Phoenix, Arizona,
under the Rules of Commercial Arbitration of the American Arbitration
Association by a panel of three (3) arbitrators qualified to consider the matter
in dispute. The arbitrators may grant injunctions or other relief in such
dispute or controversy. The decision of a majority of the arbitrators shall be
final, conclusive and binding upon the parties to the arbitration; and any party
shall be entitled to cause judgment on the decision or award of the arbitrators
to be entered in any court of competent jurisdiction. Any party may initiate a
mediation or an arbitration by providing written notice of the mediation or
arbitration, as the case may be (the "Dispute Notice"), to the other parties,
which Dispute Notice shall state the name of initiating party, briefly state the
matter to be mediated or arbitrated, and, if applicable, name a person whom such
party has nominated to act as mediator. If, within thirty (30) days after the
date of the Dispute Notice, the parties have not agreed among themselves as to
the identity of the mediator, then any party may immediately refer this matter
for resolution by the American Arbitration Association. The parties shall each
pay their pro rata share (according to the number of parties involved in the
Dispute) of the costs, deposits and expenses of the mediator. The party
initiating the arbitration shall pay the costs, deposits and expenses of such
arbitration and the prevailing party shall be awarded its attorneys' fees and
expenses in addition to all other relief awarded by the arbitrators, provided
that if the arbitrators determine that a party has initiated an arbitration
without a reasonable basis for doing so, then the arbitrators shall assess
against that party all costs relating to the arbitration, including the
attorneys' fees and expenses of the other parties.
8.8 Notices.
All notices, consents, requests, instructions, approvals or other communications
required or permitted to be given hereunder, shall be in writing, addressed as
shown below, or to such other address as any party hereto may, from time to
time, designate in writing, by courier, facsimile (fax) or electronic mail.
Notice may be given via fax, and shall be deemed given when transmission has
been successfully completed and electronic confirmation of such facsimile
transmission is received by the party giving notice. Notices not faxed shall be
deemed given when actually delivered by the courier service. Any notice which is
attempted to be delivered by electronic mail shall not be valid notice
hereunder, unless acknowledgment of receipt of such electronic mail by the
recipient is transmitted to and received by the sender within twenty-four (24)
hours of its delivery.
Oncologix Tech, Inc.
P.O. Box 8832
Grand Rapids, MI 49518-8832
Telephone: (616) 977-9933
Fax: (616) 977-9955
Email: mkramarz@oncologix.biz
24
With a copy to:
Stephen T. Meadow, Esq.
Firetag, Stoss & Dowdell, P.C.
1747 East Morten Avenue, Suite 107
Phoenix, Arizona 85020
Telephone: (602) 997-1182
Fax: (602) 997-5319
Email: stmeadow@earthlink.net
Institut fur Umwelttechnologien GmbH
Volmerstrasse 7B
D-12489 Berlin HRB 46 572
Germany
Phone: +49 30 6392-5511
Fax: +49 30 6392-4831
Email: j.leonhardt@iut-berlin.com
8.9 Publicity.
The parties shall agree upon the form and substance of (a) a joint press release
or other public announcement of this Agreement and the transactions contemplated
hereby and (b) other matters including related to this Agreement or any of the
transactions contemplated hereby which shall be released on or after the
Closing; provided, however, that nothing in this Agreement shall be deemed to
prohibit any party hereto from making any disclosure which its counsel deems
necessary or advisable in order to fulfill such party's disclosure obligations
imposed by law or contract.
8.10 Severability.
If any term, condition or provision of this Agreement shall be declared invalid
or unenforceable, the remainder of the Agreement, other than such term,
condition or provision, shall not be affected thereby and shall remain in full
force and effect and shall be valid and enforceable to the fullest extent
permitted by law.
8.11 Survival of Representations and Warranties.
All covenants, representations and warranties made by the parties in this
Agreement or any certificate or other writing delivered by them or any of their
respective Affiliates pursuant hereto or in connection herewith shall survive
the Closing and any investigation at any time made by or on behalf of the other
party.
8.12 Further Assurances.
From time to time after the Closing, Oncologix will execute and deliver, or
cause its affiliates to execute and deliver, to IUT such instruments of sale,
transfer, conveyance, assignment and delivery, and such consents, assurances,
powers of attorney and other instruments as may be reasonably requested by IUT
or its counsel in order to vest in IUT all right, title and interest of
Oncologix in and to the Assets and otherwise in order to carry out the purpose
and intent of this Agreement.
8.13 Superior Offer.
in the event that Oncologix should receive an unsolicited proposal that its
Board of Directors has in good faith concluded (after consultation with its
legal counsel) that such proposal will lead to a superior offer and that the
failure to consider such proposal would be inconsistent with its fiduciary
obligations under applicable law, Oncologix will be permitted to: (i) furnish
nonpublic information to the third party making such proposal, and (ii) engage
in negotiations with the third party with respect to the proposal. Further, if
after consultation with legal counsel and a financial advisor, the Board of
Directors determines that the proposal constitutes a superior offer, the Board
of Directors will be permitted to withdraw its recommendation to the
stockholders to approve this transaction and enter into an agreement with
respect to the proposal.
25
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be duly
executed as of the day and year first above written.
Institut fur Umwelttechnologien GmbH
By: _______________________________
Its: _______________________________
Attested By: _________________________
Secretary
Oncologix Tech, Inc.
By: _______________________________
Its: President and Chief Executive Officer
Attested By: _________________________
Secretary
26
Schedule 2.1
Asset List
Attached hereto is the list of Assets to be transferred
Oncologix
- ---------
Asset Equipment Description Manufacturer Model # / Part # Serial # Purchase Price Accum. Depr
- ----- --------------------- ------------ ---------------- -------- -------------- --------
0040A Laptop Computer + TFT Monitor
+ Dock station HP nc6400 T7200 CND7031RM4 2503.50 euros
0040B Laptop Computer + TFT Monitor
+ Dock station HP nc6400 T7200 2503.50 euros
0028 Laptop Computer + TFT Monitor
+ Dock HPation HP nc6320 T5600 2962.19 euros
Ratemeter Ludlum 3/44-9 107226/PR055458 368.99 143.08
Well-Ion chamber &
accessories MED Dresden ISOMED 1010
Laminar Air flow box Steril VBH 48 C2 19872 13,344.66 5,174.46
Laminar Air flow box Steril VBH 48 C2 19465 13,344.66 5,174.46
Autoclave sterilizer
w/accessories Thermo Scientific 6523.00 euros
Autoclave sterilizer ThermoFisher 25T 8929.76 Euros
UV/Vis spectrometer &
accessories Beckman Coulter DU-800 8002278 22,244.94 8,625.59
Computer for UV/Vis IBM Think Centre 817231ULKPFW5C 4,153.58 2,159.86
TFT Monitor IBM Think Vision S/N0601011700108 incl. in above incl. in above
Printer for UV/Vis HP Deskjet 6122 MY56P3B150 249.03 129.50
ECO - 0.2micron Filtration
Pump system 447.40 173.48
Analytical balance Sartorius LA 230 S 19304821 4014.00 Euros
Precision balance Sartorius CP 6201 19208561 1404.00 Euros
Benchtop pH meter LAT Seven Easy PH S20 1227276112 654.55 Euros
Centrifuge Eppendorf 5417 R 21244 3476.05 Euros
Rotor for Centrifuge Eppendorf FA-45-30-11 5159 412.30 Euros
Micropipettor 0.5-10ul Eppendorf Research variable 3447566 189.05 Euros
Micropipettor 10-100ul Eppendorf Research variable 2819956 179.55 Euros
Micropipettor 100-1000ul Eppendorf Research variable 2798526 179.55 Euros
Micropipettor 500-5000ul Eppendorf Research variable 2069276 189.05 Euros
Laboratory refrigerator Kirsch LABO-100 839472 1422.00 Euros
Digital Vortex Mixer Heidolph Reax control 120503135 254.70 Euros
Mobile Lab Table N/A N/A n/a 538.65 Euros
Lab Table Kottermann N/A n/a 1662.70 Euros
Lab Chair N/A N/A n/a 237.22 Euros
Heated shaking water bath GFL GFL 1083 11598406L 1632.60 Euros
Centrifuge Eppendorf 5417 C unknown 1808.00 Euros
Rotor for Centrifuge Eppendorf FA-45-30-11 unknown 412.30 Euros
Micropipettor 0.5-10ul Eppendorf Research variable 2832636 189.05 Euros
Micropipettor 100-1000ul Eppendorf Research variable 3392756 179.55 Euros
Rotor mixer unknown RS-60 330611005 1107.60 Euros
Magnetic stirrer RCT basic n/a 508.00 Euros
- ------------------------------------------------------------------------------------------------------------------------------------
27
Oncologix
- --------- NBV Purchase Date Location Comments Category
Asset Equipment Description --- ---------------------- -------- --------
- ----- ---------------------
0040A Laptop Computer + TFT Monitor 3/25/2007 IEF(Germany) GWO COMP
+ Dock station
0040B Laptop Computer + TFT Monitor 3/25/2007 IEF(Germany) GWO COMP
+ Dock station
0028 Laptop Computer + TFT Monitor 11/15/2006 IRP(Germany) GWO COMP
+ Dock HPation 225.91 IUT(Germany) GWO EQUIP
Ratemeter
Well-Ion chamber & IUT(Germany) GWO EQUIP
accessories 8,170.20 4/30/2007 IUT(Germany) GWO EQUIP
Laminar Air flow box 8,170.20 4/30/2007 IUT(Germany) GWO EQUIP
Laminar Air flow box
Autoclave sterilizer 6/25/2007 IUT(Germany) GWO EQUIP
w/accessories 7/25/2007 IUT(Germany) GWO EQUIP
Autoclave sterilizer
UV/Vis spectrometer & 13,619.35 9/20/2006 IUT(Germany) GWO EQUIP
accessories 1,993.72 11/22/2006 IUT(Germany) GWO EQUIP
Computer for UV/Vis incl. in above 11/22/2006 IUT(Germany) GWO EQUIP
TFT Monitor 119.53 5/23/2007 IUT(Germany) GWO EQUIP
Printer for UV/Vis
ECO - 0.2micron Filtration
Pump system 273.92 4/30/2007 IUT(Germany) GWO EQUIP
9/20/2006 IUT(Germany) GWO EQUIP
Analytical balance 9/20/2006 IUT(Germany) GWO EQUIP
Precision balance 9/20/2006 IUT(Germany) GWO EQUIP
Benchtop pH meter 12/18/2006 IUT(Germany) GWO EQUIP
Centrifuge 12/18/2006 IUT(Germany) GWO EQUIP
Rotor for Centrifuge 12/18/2006 IUT(Germany) GWO EQUIP
Micropipettor 0.5-10ul 12/18/2006 IUT(Germany) GWO EQUIP
Micropipettor 10-100ul 12/18/2006 IUT(Germany) GWO EQUIP
Micropipettor 100-1000ul 12/18/2006 IUT(Germany) GWO EQUIP
Micropipettor 500-5000ul 12/18/2006 IUT(Germany) GWO EQUIP
Laboratory refrigerator 12/18/2006 IUT(Germany) GWO EQUIP
Digital Vortex Mixer 4/30/2007 IUT(Germany) Good condition FURN
Mobile Lab Table 4/30/2007 IUT(Germany) Good condition FURN
Lab Table 4/30/2007 IUT(Germany) Good condition FURN
Lab Chair IUT(Germany) GWO EQUIP
Heated shaking water bath 6/30/2007 IUT (Germany) GWO EQUIP
Centrifuge 6/30/2007 IUT(Germany) GWO EQUIP
Rotor for Centrifuge 6/30/2007 IUT(Germany) GWO EQUIP
Micropipettor 0.5-10ul 6/30/2007 IUT(Germany) GWO EQUIP
Micropipettor 100-1000ul 6/30/2007 IUT(Germany) GWO EQUIP
Rotor mixer 6/30/2007 IUT(Germany) GWO EQUIP
Magnetic stirrer
- ------------------------------------------------------------------------------------------------------------------------------------
Wooden book shelves (3) IKEA 137.03
Desk Task chairs (4) IKEA 503.26
Work Tables (4) IKEA 42.01
Wooden book shelves (4) IKEA 128.45
mobile file carts (2) IKEA 667.4
square conference table IKEA
conference table chairs (4) IKEA
task table (1) IKEA
LEGEND
CONFIRMED INFORMATION
INFORMATION NEEDED
SPECIAL NOTICE
NO LONGER AVAILABLE
GWO = Good working order
NC = North Carolina
IUT = Institut fuer Umwelttechnologien
COMP = Computer cathegory
FURN = Furniture
LAB = Laboratory Equipment
27 (Con't)
Schedule 2.2
Assumed Liabilities List
Attached hereto is the list of Liabilities to be assumed by IUT.
Scheduel 2.2
Oncologix Tech, Inc.
Liabilities to be Assumed by IUT
As of May 31, 2008
Vendor Euros USD * Notes
------ ----- ----- -----
Saint Joseph Research Institute 63,815.05 Amounts based on 50% downpayment for the first animal study.
Saint Joseph Research Institute 43,319.14 Amounts based on 50% downpayment for the second animal study.
IUT 17,577.60 27,772.61 Represents invoices: 370087 and 370074
IUT 16,000.00 25,280.00 January 2008 contract payment, 30 day cancellation notice
required.
Eberhard Fritz (IEF) 1,491.55 2,356.65 Outstanding invoice, moving equipment from Braunshweig to
Berlin.
Fritz - January 2008 Contract Pmt. 12,000.00 18,960.00 January 2008 contract payment, 30 day cancellation notice
required.
Microparticles - Spheres 16,279.20 25,721.14 Spheres developed. Currently in inventory supply.
----------------------------
63,348.35 207,224.58
============================
* Amounts in USD for which there is a Euro equivalent are estimated at an
exchange rate of 1.58.
28
Schedule 4.3
Exceptions to No Violations or Conflicts Representation of Oncologix
None.
29
Schedule 4.4
Exceptions to No Litigation Representation of Oncologix
None.
30
EXHIBIT B - PRO FORMA FINANCIAL STATEMENTS
ONCOLOGIX TECH, INC. AND SUBSIDIARIES
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
BASIS OF PRESENTATION
The unaudited pro forma condensed consolidated balance sheet as of May
31, 2008, and the unaudited pro forma condensed consolidated statements of
operations for the nine months ended May 31, 2008 and the year ended August 31,
2007, are based on the historical financial statements of the Registrant.
The unaudited pro forma condensed consolidated balance sheet as of May
31, 2008 is presented as if the disposition as described in this current Form
8-K occurred in its entirety on May 31, 2008.
The unaudited pro forma condensed consolidated statements of operations
for the nine months ended May 31, 2008 are presented as if the disposition as
described in the current Form 8-K occurred in its entirety on September 1, 2007.
The unaudited pro forma condensed consolidated statements of operations
for the year ended August 31, 2007 are presented as if the disposition as
described in the current Form 8-K occurred in its entirety on September 1, 2006.
The unaudited pro forma condensed consolidated financial statements
should be read in conjunction with the historical financial statements and notes
thereto appearing in the Company's Annual Report on Form 10-KSB for the fiscal
year ended August 31, 2007 and its quarterly report on Form 10-QSB for the
interim period ended May 31, 2008.
Preparation of the pro forma information is provided for informational
purposes only, and is based on assumptions considered appropriate by the
Registrant's management. The pro formal financial information is unaudited and
is not necessarily indicative of the results which would have occurred if the
transactions described above had been consummated as of the dates indicated, nor
does it purport to represent the future financial position and the results of
operations for future periods. In management's opinion, all adjustments
necessary to reflect the effects of the transactions listed above have been
made.
31
ONCOLOGIX TECH, INC. AND SUBSIDIARIES
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
AS OF MAY 31, 2008
Pro Forma
Historical Adjustments Pro Forma
------------ ------------ ------------
(Unaudited)
ASSETS
Current Assets:
Cash and cash equivalents ................................................. $ 2,471 $ 50,000 (1) $ 52,471
Prepaid expenses and other current assets ................................. 13,047 -- 13,047
Prepaid commissions ....................................................... 92,685 -- 92,685
Current assets of discontinued operations ................................. 70 (70)(2) --
------------ ------------ ------------
Total current assets ................................................. 108,273 49,930 158,203
Property and equipment (net of accumulated depreciation
of $18,207) ............................................................... 4,999 -- 4,999
Deposits and other assets ...................................................... 17,254 -- 17,254
Investment in IUTM ............................................................. -- 367,275 367,275
Long-term assets of discontinued operations .................................... 163,534 (163,534)(2) --
------------ ------------ ------------
Total assets .................................................... $ 294,060 $ 253,671 $ 547,731
============ ============ ============
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Convertible notes payable (net of discount of $246,055) ................... $ 2,098,945 $ -- $ 2,098,945
Convertible notes payable - related parties ............................... 705,450 -- 705,450
Accounts payable and other accrued expenses ............................... 178,574 -- 178,574
Accrued interest payable .................................................. 234,610 -- 234,610
Current liabilities of discontinued operations ............................ 202,484 (202,484)(4) --
------------ ------------ ------------
Total current liabilities ............................................ 3,420,063 (202,484) 3,217,579
Convertible notes payable (net of discount of $346,456) ........................ 743,544 -- 743,544
------------ ------------ ------------
Total liabilities ............................................... 4,163,607 (202,484) 3,961,123
------------ ------------ ------------
Stockholders' Deficit:
Preferred stock, par value $.001 per share; 10,000,000 shares authorized;
342,862 shares issued and outstanding at May 31, 2008 ................ 343 -- 343
Common stock, par value $.001 per share; 200,000,000 shares authorized;
100,130,410 shares issued at May 31, 2008; 71,906,066 shares
outstanding at May 31, 2008 .......................................... 71,906 -- 71,906
Additional paid-in capital ................................................ 48,643,916 -- 48,643,916
Accumulated deficit ....................................................... (52,877,810) 456,155 (52,421,655)
Common stock subscribed, underlying common shares of 5,841,974 ............ 292,098 -- 292,098
------------ ------------ ------------
Total stockholders' deficit ..................................... (3,869,547) 456,155 (3,413,392)
------------ ------------ ------------
Total liabilities and stockholders' deficit ..................... $ 294,060 $ 253,671 $ 547,731
============ ============ ============
See accompanying notes to unaudited pro forma condensed
consolidated financial information.
32
ONCOLOGIX TECH, INC. AND SUBSIDIARIES
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED MAY 31, 2008
Pro Forma
Historical Adjustments Pro Forma
------------ ------------ ------------
(unaudited)
Operating expenses:
General and administrative ................ $ 456,845 $ -- $ 456,845
Depreciation and amortization ............. 1,587 -- 1,587
------------ ------------ ------------
Total operating expenses .................. 458,432 -- 458,432
------------ ------------ ------------
Loss from operations ...................... (458,432) -- (458,432)
------------ ------------ ------------
Other income (expense):
Interest income ........................... 331 -- 331
Interest and finance charges .............. (1,364,240) -- (1,364,240)
Loss on disposal of assets ................ (3,194) -- (3,194)
Other income (expense) .................... (1,443) -- (1,443)
------------ ------------ ------------
Total other income (expense) .............. (1,368,546) -- (1,368,546)
------------ ------------ ------------
Net loss from continuing operations ....... (1,826,978) -- (1,826,978)
------------ ------------ ------------
Discontinued operations:
Operating loss from discontinued operations (1,142,275) 1,142,275 --
Gain on disposal of discontinued operations -- 142,350 142,350
------------ ------------ ------------
Net loss from discontinued operations ..... (1,142,275) 1,284,625 --
------------ ------------ ------------
Net loss .................................... $ (2,969,253) $ 1,284,625 $ (1,654,628)
============ ============ ============
Loss per common share, basic and diluted:
Continuing operations ................. $ (0.03) $ (0.03)
Discontinued operations ............... (0.02) (0.00)
------------ ------------
$ (0.05) $ (0.03)
============ ============
Weighted average number of shares
outstanding - basic and diluted ........... 71,481,165 71,481,165
============ ============
See accompanying notes to unaudited pro forma condensed
consolidated financial information.
33
ONCOLOGIX TECH, INC. AND SUBSIDIARIES
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED AUGUST 31, 2007
Pro Forma
Historical Adjustments Pro Forma
------------ ------------ ------------
Operating expenses:
General and administrative ....................... $ 1,269,802 $ (484,080)(8) $ 785,722 (8)
Research and development ......................... 4,961,531 (4,961,531)(8) --
Depreciation and amortization .................... 20,914 (18,256)(8) 2,658
------------ ------------ ------------
Total operating expenses ......................... 6,252,247 (5,463,867) 788,380
------------ ------------ ------------
Loss from operations ............................. (6,252,247) 5,463,867 (788,380)
------------ ------------ ------------
Other income (expense):
Interest income .................................. 10,824 (10,078)(8) 746
Interest and finance charges ..................... (1,321,941) 10,864 (1,311,077)
Other income (expense) ........................... 10,409 (46)(8) 10,363
------------ ------------ ------------
Total other income (expense) ..................... (1,300,708) 740 (1,299,968)
------------ ------------ ------------
Net loss from continuing operations .............. (7,552,955) 5,464,607 (2,088,348)
------------ ------------ ------------
Discontinued operations:
Operating loss from discontinued operations ...... (93,178) -- (93,178)
Gain (loss) on disposal of discontinued operations (79) 573,280(7) 573,201
------------ ------------ ------------
Net loss from discontinued operations ............ (93,257) 573,280 480,023
------------ ------------ ------------
Net loss ........................................... $ (7,646,212) $ 6,037,887 $ (1,608,325)
============ ============ ============
Loss per common share, basic and diluted:
Continuing operations ........................ $ (0.12) $ (0.03)
Discontinued operations ...................... (0.00) (0.00)
------------ ------------
$ (0.12) $ (0.03)
============ ============
Weighted average number of shares
outstanding basic and diluted ................... 66,454,700 66,454,700
============ ============
See accompanying notes to unaudited pro forma condensed
consolidated financial information.
34
NOTES AND MANAGEMENT'S ASSUMPTIONS TO THE UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED FINANCIAL INFORMATION
The Company assumes if this transaction closes, the Company will have limited
operations in the marketing of the Oncosphere products produced by IUTM. No
assurance can be given that such a transaction will be consummated, or if
consummated, will be on the terms favorable to the Company.
The following is a description of the unaudited pro forma adjustments to the
Registrant's historical condensed consolidated financial statements.
(1) Reflects the receipt of $50,000 cash in connection with the sale of
the Oncosphere assets if the transaction was consummated on May 31,
2008.
(2) Reflects the disposal of assets, currently classified as assets from
discontinued operations in connection with the transaction of the
Oncosphere assets if the transaction was consummated on May 31, 2008.
(3) Reflects the estimated value of the investment in 20% of IUTM in
connection with the sale of the Oncosphere assets if the
transaction was consummated on May 31, 2008.
(4) Reflects the assumption of liabilities by IUT in connection with the
sale of the Oncosphere assets if the transaction was consummated on
May 31, 2008.
(5) Reflects the gain recognized in connection with the sale of the
Oncosphere assets if the transaction was consummated on September 1,
2007 for the statement of operations and May 31, 2008 for the balance
sheet.
(6) Reflects the removal of operating loss from discontinued operations as
a result of the sale if the transaction was consummated on September
1, 2007.
(7) Reflects the gain recognized in connection with the sale of the
Oncosphere assets if the transaction was consummated on September 1,
2006.
(8) Reflects the removal of operations and related operational changes to
the Company as a result of the sale if the transaction was consummated
on September 1, 2006.
35
EXHIBIT C
THIS REQUEST FOR WRITTEN CONSENT VIA PROXY IS SOLICITED
ON BEHALF OF THE BOARD OF DIRECTORS OF ONCOLOGIX TECH, INC.
WRITTEN CONSENT VIA PROXY IN CONNECTION WITH ACTION
WITHOUT A MEETING OF STOCKHOLDERS
The undersigned shareholder of Oncologix Tech, Inc., a Nevada
corporation (the "Company"), hereby appoints Judy Lindstrom and Michael A.
Kramarz, each of them, proxies and attorneys-in-fact, with full power of
substitution, on behalf and in the name of the undersigned, to execute a written
consent under Nevada Revised Statutes Section 78.320(2) and (3) entitled
"Stockholders' Meetings: Consent for actions taken without a meeting" on the
matters set forth below.
1. TO SELL SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY, INCLUDING THE ASSETS
OF ITS WHOLLY-OWNED SUBSIDIARY, TO INSTITUT FUR UMWELTTECHNOLOGIEN GMBH, A
GERMAN COMPANY
[ ] FOR [ ] AGAINST [ ] ABSTAIN
2. TO AMEND THE ARTICLES OF INCORPORATION OF THIS CORPORATION TO AUTHORIZE THE
BOARD OF DIRECTORS TO DECREASE THE NUMBER OF ISSUED AND OUTSTANDING SHARES OF A
CLASS OR SERIES HELD BY EACH STOCKHOLDER OF RECORD AT THE EFFECTIVE DATE AND
TIME OF THE CHANGE WITHOUT CORRESPONDINGLY DECREASING THE NUMBER OF AUTHORIZED
SHARES OF THE SAME CLASS OR SERIES.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
3. TO AMEND THE ARTICLES OF INCORPORATION OF THIS CORPORATION TO AUTHORIZE AN
INCREASE THE NUMBER OF SHARES OF COMMON STOCK, $0.001 PAR VALUE, FROM
200,000,000 SHARES TO 500,000,000 SHARES AND THE NUMBER OF PREFERRED SHARES FROM
10,000,000 SHARES TO 50,000,000 SHARES
[ ] FOR [ ] AGAINST [ ] ABSTAIN
Receipt of a Proxy Statement, dated _____________, 2008, related to
this Request for Written Consent Via Proxy is hereby acknowledged.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY
THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED
FOR THE PROPOSALS ABOVE.
Dated: , 2008
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Please sign exactly as your name appears
above. When shares are held in common or
in joint tenancy, both should sign. When
signing as attorney, as executor,
administrator, trustee or guardian,
please give full title as such. If a
corporation, sign in full corporate name
by President or other authorized
officer. If a partnership, please sign
in partnership name by an authorized
person.
SIGNATURES:
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