Exhibit
2.1
Form
8-K
Ogden
Golf Co. Corporation
File
No.
333-105075
AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
AMONG
OGDEN
GOLF CO. CORPORATION,
BIOPATH
ACQUISITION CORP.,
and
BIO-PATH,
INC.
AGREEMENT
AND PLAN OFMERGER AND REORGANIZATION
This
Agreement and Plan of Reorganization (hereinafter the
“
Agreement
”) is entered into effective as of this
27
th
day of
September, 2007, by and among Ogden Golf Co. Corporation, a Utah corporation
(hereinafter “
Ogden Golf
”); Biopath Acquisition Corp.,
a newly formed Utah corporation and wholly owned subsidiary of Ogden Golf
(hereinafter “
Merger Sub
”);and Bio-Path, Inc., a Utah
corporation (hereinafter the “
Bio-Path
”).
RECITALS
WHEREAS
,
the boards of directors of each of Ogden Golf, Merger Sub and Bio-Path deem
it
advisable and in the best interests of such corporations and their respective
stockholders that Merger Sub merge with and into Bio-Path pursuant to this
Agreement and the Utah Articles of Merger (in the form attached hereto as
Exhibit A
) and pursuant to applicable provisions of law (such transaction
hereafter referred to as the “
Merger
”).
WHEREAS
,
the boards of directors of Merger Sub and Bio-Path have determined to recommend
that the sole stockholder of Merger Sub and the stockholders of Bio-Path
adopt
and approve this Agreement and approve the Merger and the transactions
contemplated by this Agreement;
WHEREAS
,
pursuant to the Merger, among other things, and subject to the terms and
conditions of this Agreement, all of the capital stock of Bio-Path shall
be
converted into the right to receive a number of shares of the Common Stock
of
Ogden Golf set forth in Section 2(b) herein;
WHEREAS
,
Bio-Path, on the one hand, and Ogden Golf and Merger Sub, on the other hand,
desire to make certain representations, warranties, covenants and other
agreements in connection with the Merger; and
NOW
THEREFORE
, for the mutual consideration set out herein, and other good
and valuable consideration, the sufficiency of which is hereby acknowledged,
the
parties agree as follows:
AGREEMENT
1.
Plan
of Reorganization
. The parties to this Agreement do
hereby agree that Merger Sub shall be merged with and into Bio-Path upon
the
terms and conditions set forth herein and in accordance with the provisions
of
the Utah Revised Business Corporation Act. It is the intention of the parties
hereto that this transaction qualify as a tax-free reorganization under Section
368(a)(2)(E) of the Internal Revenue Code of 1986, as amended, and related
sections thereunder.
2.
Terms
of Merger
. In accordance with the provisions of this
Agreement and the requirements of applicable law, Merger Sub shall be merged
with and into Bio-Path as of the Effective Time (the terms
“
Closing
” and “
Effective
Time
” are defined in Section 6 hereof). Bio-Path shall be the
surviving corporation (hereinafter the “
Surviving
Corporation
”) and the separate existence of Merger Sub shall cease
when the Merger shall become effective. Consummation of the Merger
shall be upon the following terms and subject to the conditions set forth
herein:
(a)
Corporate
Existence
.
(i) Commencing
with the Effective Time, the Surviving Corporation shall continue its corporate
existence as a Utah corporation and (i) it shall thereupon and thereafter
possess all rights, privileges, powers, franchises and property (real, personal
and mixed) of each of Merger Sub and Bio-Path (collectively, the
“
Constituent Corporations
”); (ii) all debts due
to either of the Constituent Corporations, on whatever account, all causes
in
action and all other things belonging to either of the Constituent Corporations
shall be taken and deemed to be transferred to and shall be vested in the
Surviving Corporation by virtue of the Merger without further act or deed;
and
(iii) all rights of creditors and all liens, if any, upon any property of
any of
the Constituent Corporations shall be preserved unimpaired, limited in lien
to
the property affected by such liens immediately prior to the Effective Time,
and
all debts, liabilities and duties of the Constituent Corporations shall
thenceforth attach to the Surviving Corporation.
(ii) At
the Effective Time, (i) the Articles of Incorporation of Bio-Path, as amended,
shall be the Certificate of Incorporation of the Surviving Corporation, and
the
By-laws of Bio-Path, as existing immediately prior to the Effective Time,
shall
be and remain the By-laws of the Surviving Corporation; (ii) the members
of the
Board of Directors of Bio-Path holding office immediately prior to the Effective
Time shall remain as the members of the Board of Directors of the Surviving
Corporation (if on or after the Effective Time a vacancy exists on the Board
of
Directors of the Surviving Corporation, such vacancy may thereafter be filled
in
a manner provided by applicable law and the By-laws of the Surviving
Corporation); and (iii) until the Board of Directors of the Surviving
Corporation shall otherwise determine, all persons who hold offices of Bio-Path
at the Effective Time shall continue to hold the same offices of the Surviving
Corporation.
(b)
Conversion
of Securities
. As of the Effective Time and without any
action on the part of Ogden Golf, Merger Sub, Bio-Path or the holders of
any of
the securities of any of the Constituent Corporations, each of the following
shall occur:
(i) Each
share of Bio-Path Common Stock (as defined hereinafter) issued and outstanding
immediately prior to the Effective Time shall be converted into a number
of
shares of Ogden Golf Common Stock (as defined hereinafter) equal to the
Conversion Ratio (as defined hereinafter). At the Effective Time, all
such shares of Bio-Path Common Stock shall no longer be outstanding and shall
automatically be canceled and shall cease to exist, and each certificate
previously evidencing any such shares shall thereafter represent the right
to
receive, upon the surrender of such certificate in accordance with the
provisions of Section 3 hereof, certificates evidencing such number of shares
of
Ogden Golf Common Stock, respectively, into which such shares of Bio-Path
Common
Stock were converted. The holders of such certificates previously
evidencing shares of Bio-Path Common Stock outstanding immediately prior
to the
Effective Time shall cease to have any rights with respect to such shares
of
Bio-Path Common Stock except as otherwise provided herein or by law. The
shares
of Ogden Golf Common Stock issued to the holders of the capital stock of
Bio-Path shall be subject to certain restrictions on any sale, assignment,
transfer, encumbrance or other manner of disposition as more fully set forth
below;
(ii) Any
shares of capital stock of Bio-Path held in the treasury of Bio-Path immediately
prior to the Effective Time shall automatically be canceled and extinguished
without any conversion thereof and no payment shall be made with respect
thereto; and
(iii) Each
share of capital stock of Merger Sub issued and outstanding immediately prior
to
the Effective Time shall be canceled in the Merger.
Notwithstanding
anything in this Agreement to the contrary, any shares of Bio-Path Capital
Stock
issued and outstanding immediately prior to the Effective Time and held by
a
holder (a “
Dissenting Stockholder
”) who has not voted
in favor of the Merger or consented thereto in writing and who has properly
demanded appraisal for such shares in accordance with the Utah Revised Business
Corporation Act (“
Dissenting Shares
”) shall not be
converted into a right to receive the Ogden Golf Common Stock at the Effective
Time, but shall represent and become the right to receive such consideration
as
may be determined to be due to such Dissenting Stockholder pursuant to the
laws
of the State of Utah, unless and until such holder fails to perfect or withdraws
or otherwise loses such holder’s right to appraisal and payment under the Utah
Revised Business Corporation Act (the
“
URBC
”). At the Effective Time, by virtue
of the Merger and without any action on the part of the holder thereof, all
Dissenting Shares shall be cancelled and shall cease to exist. If, after
the
Effective Time, such Dissenting Stockholder fails to perfect or withdraws
or
otherwise loses such holder’s right to appraisal, such former Dissenting Shares
held by such holder shall be treated as if they had been converted as of
the
Effective Time into a right to receive, upon surrender as provided above,
Ogden
Golf Common Stock without any interest thereon. Bio-Path shall give the Merger
Sub, or after the Effective Time, the surviving corporation, prompt notice
of
any demands received for appraisal of shares of Bio-Path capital stock, any
withdrawals of any such demands and any other instruments served pursuant
to the
URBC and received by Bio-Path.
(c)
Other
Matters
.
(i) Upon
the effectiveness of the Merger, each outstanding option or warrant to purchase
Bio-Path Common Stock, whether or not then exercisable, shall be converted
into
an option or warrant to purchase a number of shares of Ogden Golf Common
Stock
equal to the Conversion Ratio multiplied by the number of shares of Bio-Path
Common Stock subject to such option or warrant, at a price per share equal
to
the exercise price per share in effect immediately prior to the Merger divided
by the Conversion Ratio. All other terms and conditions of each option or
warrant to purchase Bio-Path Common Stock shall remain the same.
(ii) At
the Closing, the existing directors of Ogden Golf or its stockholders shall
appoint as officers and nominate and elect to the Board of Directors of Ogden
Golf those set forth listed on Schedule C (the “
Post Closing
Managers
”), and all of the persons serving as directors and
officers of Ogden Golf immediately prior to the Closing shall thereafter
resign
from all of their positions with Ogden Golf.
(d)
Definitions
.
(i) For
purposes of this Agreement, the term “
Conversion
Ratio
” shall mean 2.20779528 whereby each share of Bio-Path common
stock shall be converted into 2.20779528 shares of Ogden Golf Common stock
in
the Merger. There will be not more than 3,600,000 shares of Ogden Golf Common
Stock issued and outstanding immediately prior to Closing. Currently, there
are
15,511,550 shares of Bio-Path common stock issued and outstanding. Prior
to
Closing, Bio-Path intends to raise additional capital and in connection
therewith issue additional shares of Bio-Path common stock. The parties
anticipate that immediately prior to Closing there will be not more than
29,911,550 shares of Bio-Path issued and outstanding. If Bio-Path
does issue additional shares of its common stock prior to the Effective Time
of
the Merger, the Conversion Ratio shall remain the same, 2.20779528. Assuming
there are 29,911,550 shares of Bio-Path common stock issued and outstanding
at
the time of closing, immediately following the Effective Time there will
be
approximately 69,638,579 shares of Ogden Golf Common Stock issued and
outstanding. For purposes of this Agreement, the term “
Post Closing
Capitalization
” shall mean the actual number of shares of Ogden
Golf Common Stock issued and outstanding immediately following the Effective
Time of the Merger.
(ii) For
purposes of this Agreement, the term “
Pre Closing
Capitalization
” shall be a maximum of 3,600,000 shares of the
Ogden Golf Common stock issued and outstanding immediately prior to Closing.
No
options, warrants, common stock equivalents or other rights to acquire any
security of the Ogden Golf shall be issued or outstanding immediately prior
to
the Closing except as contemplated by, or described in, this
Agreement.
3.
Delivery
of Shares
. Promptly after the Effective Time, Ogden Golf shall
deliver to each record holder of certificates formerly representing all of
such
holder’s shares of Bio-Path capital stock (the “
Old
Certificates
”), at the address set forth on books of Bio-Path, (i)
a notice of the effectiveness of the Merger and (ii) a Letter of Transmittal
in
a form reasonably acceptable to Bio-Path. Upon surrender of an Old
Certificate, together with a Letter of Transmittal duly executed and completed
in accordance with the instructions thereto, the holder of such Old Certificate
(other than Old Certificates representing Dissenting Shares) shall be entitled
to receive in exchange therefore, certificates representing the shares of
Ogden
Golf Common Stock into which such holder’s shares of Bio-Path capital stock were
converted pursuant to the Merger (the “
New
Certificates
”), that such holder is entitled to receive, which
shall be delivered by Ogden Golf in accordance with the instructions provided
by
such holder in the Letter of Transmittal executed by such holder. Until
surrendered and exchanged as herein provided, each outstanding certificate
which, prior to the Effective Time, represented Bio-Path Common Stock shall
be
deemed for all corporate purposes to evidence ownership of the same number
of
shares of Ogden Golf Common Stock into which the shares of Bio-Path Common
Stock
represented by such certificate shall have been so converted. No dividends
or
other distributions declared or made with respect to Ogden Golf Common Stock
after the Effective Time will be paid to the holder of any certificate that
prior to the Effective Time evidenced shares of Bio-Path Common Stock until
the
holder of such certificate surrenders or exchanges such certificate as herein
provided. Subject to the effect of any applicable abandoned property, escheat
or
similar laws, following surrender of any such certificate, there will be
paid to
the holder of the certificates evidencing shares of Ogden Golf Common Stock
issued in exchange therefore, without interest, (i) the amount of dividends
or
other distributions with a record date after the Effective Time theretofore
paid
with respect to such shares of Ogden Golf Common Stock and (ii) at the
appropriate payment date, the amount of dividends or other distributions,
with a
record date after the Effective Time but prior to the surrender and a payment
date occurring after surrender, payable with respect to such shares of Ogden
Golf Common Stock less any withholding taxes which are required thereon.
No
party hereto will be liable to any former holder of Bio-Path Common Stock
for
any Ogden Golf Common Stock or dividends or distributions thereon in each
case
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law. In the event any certificate representing Bio-Path
Common Stock shall have been lost, stolen or destroyed, upon the making of
an
affidavit of that fact by the holder of Bio-Path Common Stock claiming such
certificate to be lost, stolen or destroyed and an agreement by such holder
to
indemnify and hold harmless Ogden Golf and the Surviving Corporation against
any
claim that may be made against them with respect to such certificate, Ogden
Golf
will issue in exchange for such lost, stolen or destroyed certificate Ogden Golf
Common Stock to which such holder is entitled pursuant to this
Agreement.
4.
Representations
of Bio-Path
. Except as set forth in Disclosure Schedule
4, Bio-Path hereby represents and warrants as follows, which warranties and
representations shall also be true as of the Closing:
(a) Bio-Path
has the corporate power to enter into this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of Bio-Path. This Agreement has been duly executed
and
delivered by Bio-Path and constitutes a legal, valid and binding obligation
of
Bio-Path, enforceable against Bio-Path in accordance with its terms, except
as
enforcement may be limited by applicable bankruptcy, insolvency or other
laws
affecting creditor’s rights generally or by legal principles of general
applicability governing the availability of equitable remedies.
(b) Bio-Path
will deliver to Ogden Golf within 30 days from the date of execution of this
Agreement, a true and complete copy of its unaudited financial statements
as of
and for the period ended September 30, 2007 (hereinafter referred to as the
“
Bio-Path Financial Statements
”). The
Bio-Path Financial Statements fairly present, in all material respects, the
financial condition of Bio-Path as of the date thereof and the results of
its
operations for the periods then ended. Other than as set forth herein
or in any schedule or Exhibit attached hereto, there are no material liabilities
(including, but not limited to, tax liabilities), obligations or claims (whether
such liabilities or claims are contingent or absolute, direct or indirect,
and
matured or unmatured) not disclosed or referenced in Bio-Path Financial
Statements or in any exhibit thereto or notes thereto other than contracts
or
obligations occurring in the ordinary course of business since September
30,
2007; and no such contracts or obligations occurring in the ordinary course
of
business constitute liens or other liabilities which materially alter the
financial condition of Bio-Path as reflected in the Bio-Path Financial
Statements. Bio-Path has or will have at the Closing, good title to
all assets shown on the Bio-Path Financial Statements subject only to
dispositions and other transactions in the ordinary course of business, the
disclosures set forth therein and liens and encumbrances of
record. The Bio-Path Financial Statements have been prepared in
accordance with generally accepted accounting principles (except as may be
indicated therein or in the notes thereto and except for the absence of
footnotes, in the case of unaudited financial statements).
(c) Except
as set forth in Schedule 4(c), from September 30, 2007 to the date of Closing,
there will not be any material adverse change in the condition of Bio-Path
(financial or otherwise).
(d) Bio-Path
is not a party to, or the subject of, any pending litigation, claims, or
governmental investigation or proceeding not reflected in the Bio-Path Financial
Statements, and to the knowledge of its executive officers (herein
“
Knowledge
”), there are no lawsuits, claims,
assessments, investigations, or similar matters, threatened or contemplated
against or affecting Bio-Path or the management or properties of
Bio-Path.
(e) Bio-Path
has been duly organized and is validly existing and in good standing under
the
laws of the State of Utah, and has the corporate power to own, lease and
operate
its property and to carry on its business as now being conducted and is duly
qualified to do business and in good standing to do business in any jurisdiction
where so required except where the failure to so qualify would have no material
adverse effect on Bio-Path.
(f) Bio-Path
has filed all state, county and local income, excise, property and other
tax,
governmental and/or other returns, forms, filings, or reports, which are
due or
required to be filed by it prior to the date hereof and have paid or made
adequate provision in the Bio-Path Financial Statements for the payment of
all
taxes, fees, or assessments which have or may become due pursuant to such
returns, filings or reports or pursuant to any assessments received. Other
than
with respect to federal filings, Bio-Path is not delinquent or obligated
for any
tax, penalty, interest, delinquency or charge and there are no tax liens
or
encumbrances applicable to it.
(g) As
of the date of this Agreement, Bio-Path’s authorized capital stock consists of
100,000,000 shares of Common Stock, $0.001 par value per share (the
“
Bio-Path Common Stock
”), of which 15,511,550 shares
of Bio-Path Common Stock are issued and outstanding; and 10,000,000 shares
of
Preferred Stock, $0.001, of which no shares are issued and outstanding. The
Parties acknowledge that Bio-Path will attempt to raise additional capital
from
the sale of its common stock prior to the Effective Time of the Merger. In
such
event, the total number of Bio-Path shares issued and outstanding will be
greater than 15,511,550. All outstanding shares of capital stock of
Bio-Path are, and shall be at Closing, validly issued, fully paid and
nonassessable. There are no existing options, convertible or
exchangeable securities, calls, claims, warrants, preemptive rights,
registration rights or commitments of any character relating to the issued
or
unissued capital stock or other securities of Bio-Path. There are no
voting trusts, proxies or other agreements, commitments or understandings
of any
character to which Bio-Path is a party or by which Bio-Path is bound with
respect to the voting of any capital stock of Bio-Path. There is no
outstanding stock appreciation, phantom stock or similar rights with respect
to
any capital stock of Bio-Path. There are no outstanding obligations to
repurchase, redeem or otherwise acquire any shares of capital stock of
Bio-Path.
(h) Bio-Path
has not materially breached any material agreement to which it is a party.
Bio-Path has made available to Ogden Golf copies of or access to all material
contracts, commitments and/or agreements to which Bio-Path is a party, including
all contracts covering relationships or dealings with related parties or
affiliates.
(i) Bio-Path
has no subsidiary corporations.
(j) The
financial records, minute books, and other documents and records of Bio-Path
have been or will be made available to Ogden Golf prior to the Closing. The
records and documents of Bio-Path that have been delivered to, or otherwise
made
available to, Ogden Golf constitute all of the records and documents of Bio-Path
that Bio-Path is aware of or that are in its possession.
(k) The
execution of this Agreement does not materially violate or breach any material
agreement or contract to which Bio-Path is a party, and Bio-Path, to the
extent
required, has (or will have by Closing) obtained all necessary approvals
or
consents required by any agreement to which Bio-Path is a party. The execution
and performance of this Agreement will not violate or conflict with any
provision of the Certificate of Incorporation or Bylaws of
Bio-Path.
(l) Except
as set forth in Schedule 4(l), Bio-Path has complied with all of the provisions
relating to the issuance of securities, and for the registration thereof,
under
the Securities Act of 1933, as amended (the “
Securities
Act
”), other applicable securities laws, and all applicable blue
sky laws in connection with any and all of its stock issuances. There are
no
outstanding, pending or threatened stop orders or other actions or
investigations relating thereto involving federal and state securities laws.
All
issued and outstanding shares of Bio-Path’s capital stock were offered and sold
in compliance with federal and state securities laws and were not offered,
sold
or issued in violation of any preemptive right, right of first refusal or
right
of first offer and are not subject to any right of rescission.
(m) Bio-Path
is and has been in compliance with, and Bio-Path has conducted any business
previously owned or operated by it in compliance with, all applicable laws,
orders, rules and regulations of all governmental bodies and agencies, including
applicable securities laws and regulations and environmental laws and
regulations, except where such noncompliance has and will have, in the
aggregate, no material adverse effect. Bio-Path has not received notice of
any
noncompliance with the foregoing, nor does it have knowledge of any claims
or
threatened claims in connection therewith.
(n) Without
limiting the foregoing, (i) Bio-Path and any other person or entity for whose
conduct Bio-Path is legally held responsible are and have been in compliance
with all applicable federal, state, regional, and local laws, statutes,
ordinances, judgments, rulings and regulations relating to any matters of
pollution, protection of the environment, health or safety, or environmental
regulation or control, and (ii) neither Bio-Path nor any other person for
whose
conduct Bio-Path is legally held responsible has manufactured, generated,
treated, stored, handled, processed, released, transported or disposed of
any
hazardous substance on, under, from or at any of Bio-Path’s properties or in
connection with Bio-Path’s operations. There is no pending or, to Bio-Path’s
knowledge, threatened civil or criminal litigation, written notice of violation,
formal administrative proceeding or investigation, inquiry or information
request by any federal, state or foreign court, administrative agency or
commission or other governmental authority or instrumentality (a
“
Governmental Authority
”) or other entity relating to
any environmental law involving Bio-Path.
(o) Assuming
the consent of the stockholders of Bio-Path is obtained, and assuming the
appropriate filings are made with the Division of Corporations of the State
of
Utah, the execution and delivery by Bio-Path of this Agreement and the closing
documents and the consummation by Bio-Path of the transactions contemplated
hereby do not and will not (i) require the consent, approval or action of,
or
any filing or notice to, any corporation, firm, person or other entity or
any
public, governmental or judicial authority (except for such consents, approvals,
actions, filing or notices the failure of which to make or obtain will not
in
the aggregate have a material adverse effect), other than the consent of
the
stockholders of Bio-Path; (ii) violate any order, writ, injunction, decree,
judgment, ruling, law, rule or regulation of any Governmental Authority
applicable to Bio-Path, or its business or assets; (iii) constitute a material
breach of any agreement, indenture, mortgage, license or other instrument
or
document to which Bio-Path is a party or to which it is otherwise subject;
and
(iv) violate or conflict with any provision of the Articles of Incorporation
or
Bylaws Bio-Path.
(p) There
are no disagreements of any kind presently existing, or reasonably anticipated
by Bio-Path to arise, between the accountants and lawyers formerly or presently
employed by Bio-Path.
(q) Neither
Bio-Path nor any of its past or present officers or directors is, or ever
has
been, the subject of any formal or informal inquiry or investigation by the
the
Securities and Exchange Commission (“
SEC
”) or The
National Association of Securities Dealers, Inc.
(“
NASD
”).
(r) No
representation or warranty by Bio-Path contained in this Agreement and no
statement contained in any certificate, schedule or other communication
furnished pursuant to or in connection with the provisions hereof contains
or
shall contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the
circumstances under which they were made, not misleading. There is no current
or
prior event or condition of any kind or character pertaining to Bio-Path
that
may reasonably be expected to have a material adverse effect on Bio-Path.
Except
as specifically indicated elsewhere in this Agreement, all documents delivered
by Bio-Path in connection herewith have been and will be complete originals,
or
exact copies thereof.
5.
Representations
of Ogden Golf and Merger Sub
. Except as set forth in
Disclosure Schedule 5, Ogden Golf and Merger Sub hereby represent and warrant
as
follows, each of which representations and warranties shall also be true
as of
the Closing:
(a) As
of the Closing, the shares of Ogden Golf Common Stock to be issued and delivered
to the stockholders of Bio-Path (the “
Bio-Path
Stockholders
”) hereunder and in connection herewith will, when so
issued and delivered, constitute duly authorized, validly and legally issued,
fully-paid, nonassessable shares of Ogden Golf capital stock, will not be
issued
in violation of any preemptive or similar rights and will be issued free
and
clear of all liens and encumbrances. As of the Closing, the shares of Ogden
Golf
Common Stock to be reserved for issuance to the holders of options and warrants
to purchase Bio-Path Common Stock, when so issued and delivered in accordance
with such options or warrants, will constitute duly authorized, validly and
legally issued, fully-paid, nonassessable shares of Ogden Golf capital stock,
will not be issued in violation of any preemptive or similar rights and will
be
issued free and clear of all liens and encumbrances.
(b) Each
of Ogden Golf and Merger Sub has the corporate power to enter into this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the respective Boards of Directors of Ogden
Golf
and Merger Sub and by Ogden Golf as the sole stockholder of Merger Sub. This
Agreement has been duly executed and delivered by each of Ogden Golf and
Merger
Sub and constitutes a legal, valid and binding obligation of Ogden Golf and
Merger Sub, enforceable against Ogden Golf and Merger Sub in accordance with
its
terms except as enforcement may be limited by applicable bankruptcy, insolvency
or other laws affecting creditor’s rights generally or by legal principles of
general applicability governing the availability of equitable
remedies.
(c) Ogden
Golf has delivered to Bio-Path a true and complete copy of its audited financial
statements as of and for the fiscal years ended June 30, 2005 and 2006.
Ogden Golf will deliver, or otherwise make available, its audited financial
statements as of and for the fiscal year ended June 30, 2007, when they are
available (the 2005, 2006 and 2007 audited financial states of Ogden
Golf are hereafter referred to as the “
Ogden Golf Financial
Statements
”). The Ogden Golf Financial Statements do,
and will, fairly present, in all material respects, the financial condition
of
Ogden Golf as of the date thereof and the results of its operations for the
periods then ended. The Ogden Golf Financial Statements have been
prepared in accordance with generally accepted accounting principles applied
on
a consistent basis (except as may be indicated therein or in the notes thereto
and except for the absence of footnotes, in the case of unaudited financial
statements). Merger Sub has no financial statements because it was
recently formed solely for the purpose of effectuating the Merger and it
has
been, is and will remain inactive except for purposes of the Merger, and
it has
no assets, liabilities, contracts or obligations of any kind other than as
incurred in the ordinary course of business in connection with its incorporation
in Utah. Except as described in
Disclosure Schedule 5(c)
,
Ogden Golf has no subsidiaries (other than Merger Sub) or affiliates and
does
not have any direct or indirect equity participation or similar interest
in any
corporation, partnership, limited liability company, joint venture, trust
or
other business. Merger Sub has no subsidiaries or affiliates (other
than Ogden Golf) and does not have any direct or indirect equity participation
or similar interest in any corporation, partnership, limited liability company,
joint venture, trust or other business.
(d) Since
June 30, 2007, there has not been any material adverse change in the condition
of the Ogden Golf or Merger Sub (financial or otherwise).
(e) Neither
Ogden Golf nor Merger Sub is a party to, or the subject of, any pending
litigation, claims, or governmental investigation or proceeding not reflected
in
the Ogden Golf Financial Statements, and to the knowledge of any Principal
Shareholder, Ogden Golf and Merger Sub, there are no lawsuits, claims,
assessments, investigations, or similar matters, threatened or contemplated
against or affecting Merger Sub, Ogden Golf, or the management or properties
of
Ogden Golf or Merger Sub. Ogden Golf is not subject to any order,
judgment, injunction or decree of any Governmental Authority or
arbitrator.
(f) Ogden
Golf and Merger Sub are each duly organized, validly existing and in good
standing under the laws of the jurisdiction of their incorporation; each
has the
corporate power to own, lease and operate its property and to carry on its
business as now being conducted and is duly qualified to do business and
in good
standing to do business in any jurisdiction where so required except where
the
failure to so qualify would have no material adverse effect on Ogden Golf
and
Merger Sub. Neither corporation is required to be qualified to do
business in any state other than the State of Utah.
(g) Ogden
Golf and Merger Sub have each filed all federal, state, county and local
income,
excise, property and other tax, governmental and/or other returns, forms,
filings, or reports, which are due or required to be filed by it prior to
the
date hereof and have paid or made adequate provision in the Ogden Golf Financial
Statements for the payment of all taxes, fees, or assessments which have
or may
become due pursuant to such returns, filings or reports or pursuant to any
assessments received. Neither Ogden Golf nor Merger Sub is delinquent or
obligated for any tax, penalty, interest, delinquency or charge and there
are no
tax liens or encumbrances applicable to either corporation.
(h) As
of the date of this Agreement, Ogden Golf’s authorized capital stock consists of
100,000,000 shares of Common Stock, no par value per share (the
“
Ogden Golf Common Stock
”), of which 2,760,909 shares
of Ogden Golf Common Stock are currently issued and outstanding. Not
more than 3,600,000 shares of the Ogden Golf common Stock will be issued
and
outstanding immediately prior to the Closing. Merger Sub’s
capitalization consists solely of 1,000 authorized shares of common stock,
par
value $0.001 per share (the “
Merger Sub Stock
”), of
which 1,000 shares are outstanding, all of which are owned by Ogden Golf,
free
and clear of all liens, claims and encumbrances. All outstanding
shares of capital stock of Ogden Golf and Merger Sub are, and shall be at
Closing, validly issued, fully paid and nonassessable. Except for a
warrant to purchase 40,000 shares of Ogden Golf Common Stock at $0.83 per
share
issued to ACAP Financial, Inc., there are no existing options, convertible
or
exchangeable securities, calls, claims, warrants, preemptive rights,
registration rights or commitments of any character relating to the issued
or
unissued capital stock or other securities of either Ogden Golf or Merger
Sub. There are no voting trusts, proxies or other agreements,
commitments or understandings of any character to which Ogden Golf or Merger
Sub
is a party or by which Ogden Golf or Merger Sub is bound with respect to
the
voting of any capital stock of Ogden Golf or Merger Sub. There is no
outstanding stock appreciation, phantom stock or similar rights with respect
to
any capital stock of Ogden Golf or Merger Sub. There are no outstanding
obligations to repurchase, redeem or otherwise acquire any shares of capital
stock of Ogden Golf or Merger Sub. As a condition to the Closing of the Merger,
Ogden Golf’s authorized common stock will be increased to
200,000,000.
(i) The
financial records, minute books, and other documents and records of Ogden
Golf
and Merger Sub have been or will be made available to Bio-Path prior to the
Closing. The records and documents of Ogden Golf and Merger Sub that have
been
delivered or otherwise made available, to Bio-Path constitute all of the
records
and documents of Ogden Golf and Merger Sub that any Principal Shareholder
is
aware of or that are in his or her possession or in the possession of Ogden
Golf
or Merger Sub.
(j) Neither
Ogden Golf nor Merger Sub has breached, nor is there any pending, any existing
or threatened claim that Ogden Golf or Merger Sub has breached, any of the
terms
or conditions of any agreements, contracts, commitments or other documents
to
which it is a party or by which it is, or its properties are bound. The
execution and performance of this Agreement will not violate any provisions
of
applicable law or any agreement to which Ogden Golf or Merger Sub is subject.
Each of Ogden Golf and Merger Sub hereby represent and warrant that it is
not a
party to any material contract or commitment, and that it has disclosed to
Bio-Path in writing all previous or existing relationships or dealings with
related or controlling parties or affiliates of Ogden Golf or Merger Sub.
Each
of Ogden Golf and Merger Sub hereby represent and warrant that there are
no
currently existing agreements with any affiliates, related or controlling
persons or entities of Ogden Golf or Merger Sub.
(k) Ogden
Golf has complied with all of the provisions relating to the issuance of
securities, and for the registration thereof, under the Securities Act, other
applicable securities laws, and all applicable blue sky laws in connection
with
any and all of its stock issuances. There are no outstanding, pending or
threatened stop orders or other actions or investigations relating thereto
involving federal and state securities laws. All issued and outstanding shares
of Ogden Golf’s capital stock were offered and sold in compliance with federal
and state securities laws and were not offered, sold or issued in violation
of
any preemptive right, right of first refusal or right of first offer and
are not
subject to any right of rescission.
(l) Ogden
Golf was organized for the purpose of purchasing, owning and operating a
retail
golf equipment business and was not formed for the purpose of engaging in
a
merger or acquisition with an unidentified company and is not, nor has it
ever
been, a blank check company.
(m) All
information regarding Ogden Golf which has been provided to Bio-Path by Ogden
Golf or set forth in any document or other communication, disseminated to
any
former, existing or potential shareholders of Ogden Golf or to the public
or
filed with the NASD, the SEC or any state securities regulators or authorities
is true, complete, accurate in all material respects, not misleading, and
was
and is in full compliance with all securities laws and regulations.
(n) Ogden
Golf has filed numerous of its SEC reports on a delinquent basis. The Securities
and Exchange Commission has requested certain amendments to some of Ogden
Golf’s
SEC reports. Except for its delinquent filings, to the best of its Knowledge,
Ogden Golf is and has been in compliance with, and Ogden Golf has conducted
any
business previously owned or operated by it in compliance with, all applicable
laws, orders, rules and regulations of all governmental bodies and agencies,
including applicable securities laws and regulations (including, without
limitation, the Sarbanes Oxley Act of 2002) and environmental laws and
regulations, except where such noncompliance has and will have, in the
aggregate, no material adverse effect. Ogden Golf has not received notice
of any
noncompliance with the foregoing, nor does it have knowledge of any claims
or
threatened claims in connection therewith. Ogden Golf has never conducted
any
operations or engaged in any business transactions whatsoever other than
as set
forth in the reports Ogden Golf has previously filed with the SEC or described
herein.
(o) Without
limiting the foregoing, (i) Ogden Golf and any other person or entity for
whose
conduct Ogden Golf is legally held responsible are and have been in compliance
with all applicable federal, state, regional, and local laws, statutes,
ordinances, judgments, rulings and regulations relating to any matters of
pollution, protection of the environment, health or safety, or environmental
regulation or control, and (ii) neither Ogden Golf nor any other person for
whose conduct Ogden Golf is legally held responsible has manufactured,
generated, treated, stored, handled, processed, released, transported or
disposed of any hazardous substance on, under, from or at any of Ogden Golf’s
properties or in connection with Ogden Golf’s operations. There is no pending
or, to Ogden Golf’s or the Principal Shareholders’ knowledge, threatened civil
or criminal litigation, written notice of violation, formal administrative
proceeding or investigation, inquiry or information request by any Governmental
Authority or other entity relating to any environmental law involving Ogden
Golf.
(p) Ogden
Golf has not timely filed its required documents, reports and schedules with
the
SEC (collectively, the “
Ogden Golf SEC Documents
”). As
of their respective dates, the Ogden Golf SEC Documents complied in all material
respects with the requirements of the Securities Act, the Securities Exchange
Act of 1934, as amended (the “
Exchange Act
”), the NASD
rules and regulations and state and regional securities laws
and regulations, as the case may be, and, at the respective times
they were filed, none of the Ogden Golf SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required
to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements (including, in each case, any notes thereto) of Ogden Golf included
in the Ogden Golf SEC Documents complied as to form and substance in all
material respects with applicable accounting requirements and the rules and
regulations of the SEC with respect thereto, were prepared in accordance
with
generally accepted accounting principles (except as may be indicated therein
or
in the notes thereto) applied on a consistent basis during the periods involved
(except as may be indicated therein or in the notes thereto) and fairly
presented in all material respects the financial position of Ogden Golf as
of
the respective dates thereof and the results of its operations and its cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments and to any other adjustments described
therein).
(q) Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (a) result in any payment (whether
severance pay, unemployment compensation or otherwise) becoming due from
Ogden
Golf to any person or entity, including without limitation any employee,
director, officer or affiliate or former employee, director, officer or
affiliate of Ogden Golf, (b) increase any benefits otherwise payable to any
person or entity, including without limitation any employee, director, officer
or affiliate or former employee, director, officer or affiliate of Ogden
Golf,
or (c) result in the acceleration of the time of payment or vesting of any
such
benefits.
(r) Ogden
Golf has no material contracts, commitments, arrangements, or understandings
relating to its business, operations, financial condition, prospects or
otherwise. For purposes of this Section 5(r), “material” means payment or
performance of a contract, commitment, arrangement or understanding which
is
expected to involve payments in excess of $5,000.
(s) Assuming
the consent of the stockholders of Ogden Golf is obtained, and assuming
appropriate filings and mailings are made by Ogden Golf under the Securities
Act, the Exchange Act, with the NASD, and with the Secretary of State of
Utah,
the execution and delivery by Ogden Golf of this Agreement and the closing
documents and the consummation by Ogden Golf of the transactions contemplated
hereby do not and will not (i) require the consent, approval or action of,
or
any filing or notice to, any corporation, firm, person or other entity or
any
public, governmental or judicial authority (except for such consents, approvals,
actions, filing or notices the failure of which to make or obtain will not
in
the aggregate have a material adverse effect); (ii) violate any order, writ,
injunction, decree, judgment, ruling, law, rule or regulation of any
Governmental Authority applicable to Ogden Golf, or its business or assets;
(iii) constitute a material breach of any agreement, indenture, mortgage,
license or other instrument or document to which Ogden Golf or Merger Sub
is a
party or to which any of them is otherwise subject; and (iv) violate or conflict
with any provision of the respective Articles of Incorporation or Certificate
of
Incorporation or Bylaws of either Ogden Golf or Merger Sub. To the
knowledge of officers of Ogden Golf, Ogden Golf is not subject to, or a party
to, any mortgage, lien, lease, agreement, contract, instrument, order, judgment
or decree or any other material restriction of any kind or character which
would
prevent, hinder, restrict or impair the continued operation of the business
of
Bio-Path after the Closing.
(t) Ogden
Golf has provided to Bio-Path an accurate and complete list of all of its
current employees, consultants or independent contractors. Ogden Golf
is not a party to or bound by any employment agreement or any union contract,
collective bargaining agreement or similar contract or agreement, or any
other
contract or agreement to provide severance payments or benefits to any employee
upon termination of employment. As of the Closing, Ogden Golf will
not have any employees, consultants or independent contractors, other than
its
attorneys and accountants. There are no labor disputes, grievances or
requests for arbitration. Ogden Golf has no pension, retirement, savings,
profit
sharing, stock-based, incentive compensation or other similar employee benefit
plan.
(u) Except
as filed as exhibits to the Ogden Golf SEC Documents, Ogden Golf has no
“material contracts” (as defined in Item 601(b)(10) of Regulation S-B of the
SEC) to which it is a party. Ogden Golf is not a party to or bound by any
contract which would prohibit or materially delay the consummation of the
transactions contemplated by this Agreement. All of Ogden Golf’s “material
contracts” are in good standing, valid and effective in accordance with their
respective terms, and neither Ogden Golf nor any other party to a “material
contract” of Ogden Golf has violated any provision of, or committed or failed to
perform any act which, with or without notice, lapse of time or both, would
constitute a default under the provisions of, any such “material
contract.”
(v) Except
as set forth in the Ogden Golf SEC Documents or as set forth on Schedule
0
attached hereto and incorporated
herein
by reference, there are no liabilities (including, but not limited to, tax
liabilities), obligations or claims (whether such liabilities or claims are
contingent or absolute, direct or indirect, and matured or unmatured)
(collectively, “
Liabilities
”) of Ogden Golf, and there
is no existing condition, situation or set of circumstances which could
reasonably be expected to result in a Liability.
(w) Ogden
Golf is in compliance with the requirements of the Sarbanes-Oxley Act of
2002
applicable to it as of the date of this Agreement. Ogden Golf maintains a
system
of internal accounting controls sufficient to provide reasonable assurance
that
(i) transactions are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
Ogden
Golf has established disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15(e) and 15d-15(e)) for Ogden Golf and designed such disclosures
controls and procedures to ensure that material information relating to Ogden
Golf, is made known to the certifying officers by others within Ogden Golf,
particularly during the period in which Ogden Golf’s Form 10-KSB or 10-QSB, as
the case may be, is being prepared. Ogden Golf’s certifying officers have
evaluated the effectiveness of Ogden Golf’s controls and procedures as of the
date of its most recently filed periodic report (such date, the
“
Evaluation Date
”). Ogden Golf presented in its most
recently filed periodic report the conclusions of the certifying officers
about
the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have
been no significant changes in Ogden Golf’s internal control over financial
reporting (as such term is defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) or in other factors that could significantly affect Ogden Golf’s
internal control over financial reporting. Ogden Golf’s auditors, at all
relevant times, have been duly registered in good standing with the Public
Company Accounting Oversight Board.
(x) There
are no legal, administrative, arbitral or other proceedings, claims, suits,
actions or governmental investigations of any nature pending, or to Ogden
Golf’s
knowledge threatened, directly or indirectly involving Ogden Golf’s officers,
directors or affiliates, including, but not limited to any stockholder claims
or
derivative actions, or challenging the validity or propriety of the transactions
contemplated by this Agreement.
(y) Ogden
Golf: (i) is not in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would
result in a default by Ogden Golf under), nor has Ogden Golf received notice
of
a claim that it is in default under or that it is in violation of, any
indenture, mortgage, deed of trust or other agreement, instrument or contract
to
which Ogden Golf is a party or by which it or any of its assets or properties
are bound (whether or not such default or violation has been waived), (ii)
is
not in violation of any order of any court, arbitrator or governmental body,
(iii) is not and has not been in violation of any law, order, rule, regulation,
writ, injunction, judgment or decree of any Governmental Authority having
jurisdiction over Ogden Golf or any of its business or properties, including
federal and state securities laws and regulations and (iv) is not in violation
of any of its Permits.
(z) There
are no disagreements of any kind presently existing, or reasonably anticipated
by Ogden Golf to arise, between the accountants and lawyers formerly or
presently employed by Ogden Golf and Ogden Golf, except for fees and expenses
owed to Cohne, Rappaport & Segal, P.C., which do not exceed $30,000 in the
aggregate, is current with respect to any fees owed to its accountants and
lawyers. Ogden Golf will incur additional accounting and legal fees prior
to the
Closing, which are not expected to exceed $20,000.
(aa) Ogden
Golf does not have a class of securities that are registered under Section
12 of
the Exchange Act, and is not subject to Sections 14(a), 14(c) and 14(f) of
the
Exchange Act, and the rules and regulations promulgated thereunder.
(bb) Neither
Ogden Golf nor any of its past or present officers or directors is, or ever
has
been, the subject of any formal or, to Ogden Golf’s knowledge, informal inquiry
or investigation by the SEC or the NASD.
(cc) Ogden
Golf confirms that neither it nor any other Person acting on its behalf has
provided Bio-Path or its agents or counsel with any information that constitutes
or might constitute material, nonpublic information concerning Ogden Golf.
Ogden
Golf understands and confirms that Bio-Path will rely on the foregoing
representations in effecting transactions in securities of Ogden Golf. All
disclosure provided to Bio-Path regarding Ogden Golf, its business and the
transactions contemplated hereby furnished by or on behalf of Ogden Golf
with
respect to the representations and warranties made herein are true and correct
with respect to such representations and warranties and do not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein not misleading. Ogden Golf
acknowledges and agrees that Bio-Path has not made, nor is Bio-Path making,
any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth herein.
(dd) No
representation or warranty by Ogden Golf or Merger Sub contained in this
Agreement and no statement contained in any certificate, schedule or other
communication furnished pursuant to or in connection with the provisions
hereof
contains or shall contain any untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein,
in
light of the circumstances under which they were made, not misleading. There
is
no current or prior event or condition of any kind or character pertaining
to
Ogden Golf that may reasonably be expected to have a material adverse effect
on
Ogden Golf or its subsidiaries. Except as specifically indicated elsewhere
in
this Agreement, all documents delivered by Ogden Golf in connection herewith
have been and will be complete originals, or exact copies thereof.
6.
Closing
. The
closing of the transactions contemplated herein (the
“
Closing
”) shall take place at the offices of Cohne,
Rappaport & Segal, P.C. Corporation, on such date (the “
Closing
Date
”) as mutually determined by the parties hereto when all
conditions precedent have been met and all required documents have been
delivered. The “
Effective Time
” of the
Merger shall be that date and time the Articles of Merger has been accepted
for
filing by the Division of Corporation of the State of Utah, or at such later
time as is provided in the Articles of Merger, and the “
Effective
Date
” shall be the date of the Effective Time.
7.
Actions
Prior to Closing
.
(a) Prior
to the Closing, Bio-Path on the one hand, and Ogden Golf and Merger Sub on
the
other hand, shall be entitled to make such investigations of the assets,
properties, business and operations of the other party, and to examine the
books, records, tax returns, financial statements and other materials of
the
other party as such investigating party deems necessary in connection with
this
Agreement and the transactions contemplated hereby. Any such investigation
and
examination shall be conducted at reasonable times and under reasonable
circumstances, and the parties hereto shall cooperate fully therein. Until
the
Closing, and if the Closing shall not occur, thereafter, each party shall
keep
confidential and shall not use in any manner inconsistent with the transactions
contemplated by this Agreement, and shall not disclose, nor use for their
own
benefit, any information or documents obtained from the other party concerning
the assets, properties, business and operations of such party, unless such
information (i) is readily ascertainable from public or published information,
(ii) is received from a third party not under any obligation to keep such
information confidential, or (iii) is required to be disclosed by any law
or
order (in which case the disclosing party shall promptly provide notice thereof
to the other party in order to enable the other party to seek a protective
order
or to otherwise prevent such disclosure). If this transaction is not consummated
for any reason, each party shall return to the other all such confidential
information, including notes and compilations thereof, promptly after the
date
of such termination. The representations and warranties contained in this
Agreement shall not be affected or deemed waived by reason of the fact that
either party hereto discovered or should have discovered any representation
or
warranty is or might be inaccurate in any respect.
(b) Prior
to the Closing, Bio-Path, Ogden Golf and Merger Sub agree not to issue any
statement or communications to the public or the press regarding the
transactions contemplated by this Agreement without the prior written consent
of
the other parties. In the event that Ogden Golf is required under federal
securities law to either (i) file any document with the SEC that discloses
this
Agreement or the transactions contemplated hereby, or (ii) to make a public
announcement regarding this Agreement or the transactions contemplated hereby,
Ogden Golf shall provide Bio-Path with a copy of the proposed disclosure
no less
than 48 hours before such disclosure is made and shall incorporate into such
disclosure any reasonable comments or changes that Bio-Path may
request.
(c) Prior
to the Closing, except as contemplated by this Agreement, there shall be
no
stock dividend, stock split, recapitalization, or exchange of shares with
respect to or rights, options or warrants issued in respect of Ogden Golf
Common
Stock after the date hereof and there shall be no dividends or other
distributions paid on Ogden Golf Common Stock after the date hereof, in each
case through and including the Closing. Ogden Golf and Merger Sub shall conduct
no business, prior to the Closing, other than in the ordinary course of business
or as may be necessary in order to consummate the transactions contemplated
hereby. Prior to the Closing, neither Ogden Golf nor Merger Sub shall
take any action or enter into any agreement to issue or sell any shares of
capital stock of Ogden Golf or Merger Sub or any securities convertible into
or
exchangeable or exercisable for any shares of capital stock of Ogden Golf
or
Merger Sub or to repurchase, redeem or otherwise acquire any of the issued
and
outstanding capital stock of Ogden Golf or Merger Sub, without the prior
written
consent of Bio-Path.
(d) Prior
to the Closing, Ogden Golf will timely file all required Ogden Golf SEC
Documents and comply in all material respects with the requirements of the
Securities Act, the Exchange Act, the NASD rules and regulations and state
and
regional securities laws and regulations.
(e) Prior
to the Closing, if requested by Bio-Path, Ogden Golf shall adopt a new stock
option plan in the manner requested by Bio-Path.
(f) Prior
to the Closing, Ogden Golf shall take such actions as shall be necessary
to pay
all of its liabilities.
(g) Prior
to the Closing, Ogden Golf and Merger Sub shall conduct their business only
in
the usual and ordinary course and the character of such business shall not
be
changed nor shall any different business be undertaken. Prior to the
Closing, except as contemplated hereby, Ogden Golf and Merger Sub shall not
incur any Liabilities without the prior written consent of
Bio-Path.
(h) Prior
to the Closing, Ogden Golf shall take such action as shall be necessary to
change the name of Ogden Golf to “Bio-Path Holdings, Inc.” (the
“
Name Change
”). If this Agreement is
terminated in accordance with Section 15(c), Ogden Golf agrees to change
its
name back to “Ogden Golf Co. Corporation” or to such other name as authorized by
Ogden Golf promptly following such termination.
(i) Ogden
Golf will, as promptly as practicable following the execution of this Agreement,
call, give notice of, convene and hold a meeting of its shareholders for
the
purpose of approving this Agreement and the transactions contemplated by
this
Agreement, including the Disposition, the Name Change, the Fiscal Year Change,
the election of Bio-Path’s nominees to the Board of Directors of Ogden Golf and
all matters outlined or contemplated herein, or obtain the written consent
of
its shareholders for the same aforementioned purpose.
(j) Ogden
Golf agrees that, from the date of this Agreement until the first to occur
of
(i) the termination of this Agreement pursuant to Section 15(c) and (ii)
the
Closing, except in connection with the Disposition, Ogden Golf will not,
and
will not authorize or permit any officer or director of Ogden Golf or any
other
person on its behalf to, directly or indirectly, solicit, facilitate, encourage,
entertain, discuss, negotiate or accept or enter into any offer, inquiry
or
proposal from or any agreement with any party other than Bio-Path concerning
a
possible investment in, or an acquisition, merger or consolidation of Ogden
Golf
with or into any other entity, a disposition of all or any substantial portion
of the business, assets or securities of Ogden Golf, or provide any confidential
information to any party other than Bio-Path concerning any such investment,
acquisition, merger, consolidation or disposition (a “
Ogden Golf
Third Party Transaction
”). Ogden Golf will promptly
notify Bio-Path in writing of any such offer, the principal terms of the
same
and the identity of the party making the same, unless Ogden Golf’s sole response
to such offer is to refuse to discuss the offer with such
party.
In
the
event that Ogden Golf breaches any of its undertakings provided for in this
Section 7(j) and Ogden Golf enters into a definitive agreement or agreement
in
principle with any third party in respect of which it breached such undertaking
within six months after the termination by Bio-Path of this Agreement, then
Ogden Golf shall cause Bio-Path to be paid, by Ogden Golf or another party
or
parties to the Ogden Golf Third Party Transaction, the amount of $200,000
in
cash upon the closing of such Ogden Golf Third Party Transaction.
(k) Bio-Path
agrees that, from the date last set forth below until the first to occur
of (i)
the termination of this Agreement pursuant to Section 15(c) and (ii) the
Closing, except in connection with the Equity Financing, Bio-Path will not,
and
will not authorize or permit any officer or director of Bio-Path or any other
person on its behalf to, directly or indirectly, solicit, facilitate, encourage,
entertain, discuss, negotiate or accept or enter into any offer, inquiry
or
proposal from or any agreement with any party other than Ogden Golf concerning
an acquisition, merger or consolidation of Bio-Path with or into any other
entity, a disposition of all or any substantial portion of the business,
assets
or securities of Bio-Path, or provide any confidential information to any
party
other than Ogden Golf concerning any such acquisition, merger, consolidation
or
disposition (a “
Bio-Path Third Party
Transaction
”). Bio-Path will promptly notify Ogden Golf
in writing of any such offer, the principal terms of the same and the identity
of the party making the same, unless Bio-Path’s sole response to such offer is
to refuse to discuss the offer with such party. In the event that
Bio-Path breaches any of its undertakings provided for in this Section 7(k)
and
Bio-Path enters into a definitive agreement or agreement in principle with
any
third party in respect of which it breached such undertaking within six months
after the termination by Ogden Golf of this Agreement, then Bio-Path shall
cause
Ogden Golf to be paid, by Bio-Path or another party or parties to Bio-Path
Third
Party Transaction, the amount of $200,000 in cash upon the closing of such
Bio-Path Third Party Transaction.
(l) Bio-Path
will use commercially reasonable efforts to make all federal tax filings
required to be made by applicable law as soon as practicable after the date
hereof.
8.
Conditions
Precedent to the Obligations of Bio-Path
. All
obligations of Bio-Path under this Agreement are subject to the fulfillment,
prior to or as of the Closing, of each of the following conditions:
(a) Bio-Path
shall have completed its due diligence review of the Ogden Golf and Merger
Sub,
and the results of such review shall be satisfactory to Bio-Path in its sole
discretion.
(b) The
representations and warranties by or on behalf of Ogden Golf and Merger Sub
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof or in connection herewith shall be true and correct
in
all respects at and as of the Closing as though such representations and
warranties were made at and as of such time.
(c) Ogden
Golf and Merger Sub shall have performed and complied with all covenants,
agreements, and conditions set forth or otherwise contemplated in, and shall
have executed and delivered all documents required by, this Agreement to
be
performed or complied with or executed and delivered by them prior to or
at the
Closing.
(d) The
directors of Ogden Golf and the directors and sole stockholder of Merger
Sub
shall have approved in accordance with applicable state corporation law the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein.
(e) On
or before the Closing Date, Ogden Golf and Merger Sub shall have delivered
to
Bio-Path certified copies of resolutions of the stockholders and the directors
of Merger Sub and Ogden Golf approving and authorizing the execution, delivery
and performance of this Agreement and authorizing all of the necessary and
proper action to enable Ogden Golf and Merger Sub to comply with the terms
of
this Agreement, including the Name Change, the Fiscal Year Change, the election
of Bio-Path’s nominees to the Board of Directors of Ogden Golf and all matters
outlined or contemplated herein.
(f) The
Merger shall be permitted by applicable state law and otherwise and Ogden
Golf
shall have sufficient shares of its capital stock authorized to complete
the
Merger and the transactions contemplated hereby.
(g) 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 Merger shall be in
effect.
(h) At
Closing, all of the directors, and all of the officers of Ogden Golf shall
have
resigned in writing from their positions as directors and officers of Ogden
Golf
effective upon the election and appointment of the Post Closing Management
listed on Schedule A, and the directors of Ogden Golf shall take such action
as
may be necessary or desirable regarding such election and appointment of
Bio-Path nominees.
(i) At
the Closing, all instruments and documents delivered by Ogden Golf or Merger
Sub, including to Bio-Path Stockholders pursuant to the provisions hereof
shall
be reasonably satisfactory to legal counsel for Bio-Path.
(j) The
shares of Ogden Golf capital stock to be issued to Bio-Path Stockholders
at
Closing will be validly issued, nonassessable and fully paid under Utah
corporation law.
(k) Bio-Path
shall have received all necessary and required approvals and consents from
required parties and from its stockholders.
(l) Ogden
Golf shall have effected the Name Change, the Fiscal Year
Change.
(m) Ogden
Golf and Merger Sub shall have no Liabilities at the Effective
Time.
(n) Ogden
shall have taken such action as may be necessary to amend its Articles of
Incorporation to increase its authorized common stock to
200,000,000.
9.
Conditions
Precedent to the Obligations of Ogden Golf and Merger Sub
. All
obligations of Ogden Golf and Merger Sub under this Agreement are subject
to the
fulfillment, prior to or at the Closing, of each of the following
conditions:
(a) The
representations and warranties by Bio-Path contained in this Agreement or
in any
certificate or document delivered pursuant to the provisions hereof shall
be
true and correct in all material respects at and as of the Closing as though
such representations and warranties were made at and as of such
times.
(b) Bio-Path
shall have performed and complied with, in all material respects, all covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing.
(c) 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 Merger shall be in
effect.
(d) Bio-Path
shall deliver to Ogden Golf financial statements meeting the requirements
of
3-05 of Regulation S-X promulgated under the Securities Act and the Exchange
Act.
(e) Bio-Path
shall have entered into the License Agreements described on Exhibit 9(e)
attached hereto.
10.
Survival
and Indemnification
. All representations, warranties, covenants and
agreements contained in this Agreement, or in any schedule, certificate,
document or statement delivered pursuant hereto, shall survive (and not be
affected in any respect by) the Closing, any investigation conducted by any
party hereto and any information which any party may receive. Notwithstanding
the foregoing, the representations and warranties contained in or made pursuant
to this Agreement shall terminate on, and no claim or action with respect
thereto may be brought after, the date that is 180 days after the Effective
Date
(the “
Expiration Date
”), except that the breaches of
representations, warranties and covenants arising out of or related to the
fraud
or willful misconduct shall survive indefinitely. The representations
and warranties which terminate on the Expiration Date, and the liability
of any
party with respect thereto pursuant to this Section 10, shall not terminate
with
respect to any claim, whether or not fixed as to liability or liquidated
as to
amount, with respect to which the appropriate party has been given written
notice setting forth the facts upon which the claim for indemnification is
based
prior to the third anniversary of the Effective Date, as the case may
be.
For
purposes of this Agreement, “
Damages
” shall include any loss,
damage, injury, liability, claim, demand, settlement, judgment, award, fine,
penalty, tax, fee (including any legal fee, expert fee, accounting fee or
advisory fee), charge, cost (including any cost of investigation) or expense
of
any nature. For purposes of this Agreement, “
Proceeding
” shall
mean any action, suit, litigation, arbitration, proceeding (including any
civil,
criminal, administrative, investigative or appellate proceeding and any informal
proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination
or investigation commenced, brought, conducted or heard by or before, or
otherwise involving, any Governmental Body or any arbitrator or arbitration
panel.
(a)
Bio-Path
Indemnification
.
Subject to the
limitations set forth in Section 10(d) below, Bio-Path shall indemnify, defend,
save and hold harmless Ogden Golf, any entity which directly or indirectly
controls Ogden Golf and Ogden Golf’s Affiliates and Representatives (each a
“Ogden Golf Indemnified Person”) for, from and against:
(i) Any
Damages incurred by the Ogden Golf Indemnified Persons arising out of or
resulting from a breach in the representations and warranties of Bio-Path
contained in this Agreement or in any other Transactional
Agreement.
(ii) Any
Damages incurred in investigating, preparing or defending any Proceeding
(commenced or threatened) incident to any of the foregoing or the enforcement
of
this Section 10.
(b)
Ogden
Golf Indemnification
.
Subject to the
limitations set forth in Section 10(d) below, Ogden Golf shall indemnify,
defend, save and hold harmless Bio-Path, any entity which directly or indirectly
controls Bio-Path and Bio-Path’ Affiliates and Representatives (each a “Bio-Path
Indemnified Person”) for, from and against:
(i) Any
Damages incurred by Bio-Path Indemnified Person arising out of or resulting
from
a breach in the representations and warranties of the Ogden Golf contained
in
this Agreement or in any other Transactional Agreement.
(ii) Any
Damages incurred in investigating, preparing or defending any Proceeding
(commenced or threatened) incident to any of the foregoing or the enforcement
of
this Section 10.
(c)
Notification
of Claims
.
In the event of the
occurrence of an event which an Indemnified Person asserts constitutes an
event
in respect of which indemnification may be sought from an indemnitor hereunder,
such Indemnified Person shall provide the indemnitors with prompt notice
of such
event (“Claim”) and shall otherwise make available to the indemnitor all
relevant information which is material to the Claim and which is in the
possession of the Indemnified Person.
If
such
event involves a Claim brought by any third party (a “Third-Party Claim”), the
indemnitors shall have the right to elect to join in the defense, settlement,
adjustment or compromise of any such Third-Party Claim, and to employ counsel
to
assist such indemnitor in connection with the handling of such Claim, at
the
sole expense of the indemnitor, and no such Claim shall be settled, adjusted
or
compromised, or the defense thereof terminated, without the prior written
consent of the indemnitor unless and until the indemnitor shall have failed,
after the lapse of a reasonable period of time, but in no event more than
thirty
(30) days after notice of such Claim, to join in the defense, settlement,
adjustment or compromise of the same. An Indemnified Person’s failure
to give timely notice or to furnish the indemnitors with any relevant data
and
documents in connection with any Third-Party Claim shall not constitute a
defense (in part or in whole) to any claim for indemnification by such Person,
except and only to the extent that such failure shall result in any material
prejudice to the indemnitors. If so desired by any of the
indemnitors, such indemnitor may elect, at such indemnitor’s sole expense, to
assume control of the defense, settlement, adjustment or compromise of any
Third-Party Claim, provided that before entering into any settlement, adjustment
or compromise of such claim, or ceasing to defend against such Claim, if
as a
result thereof, or pursuant thereto, there would be imposed on any Indemnified
Person any liability or obligation not covered by the indemnification
obligations of the indemnitors under this Agreement (including, without
limitation, any injunctive relief or other remedy), such indemnitors shall
obtain the written consent of such Indemnified Persons (which consent shall
not
be unreasonably withheld, conditioned or delayed). After an
indemnitor assumes control of the defense, settlement, adjustment or compromise
of a claim, any Indemnified Person shall be entitled to participate in such
defense, settlement, adjustment or compromise through counsel of its own
choosing; provided that the fees and expenses of such counsel shall be borne
by
such Indemnified Person.
11
Nature
of Representations
. All of the parties hereto are
executing and carrying out the provisions of this Agreement in reliance solely
on the representations, warranties and covenants and agreements contained
in
this Agreement and the other documents delivered at the Closing and not upon
any
representation warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set
forth
herein.
12.
Documents
at Closing
. At the Closing, the following documents shall be
delivered:
(a) Bio-Path
will deliver, or will cause to be delivered, to Ogden Golf the
following:
(i) a
certificate executed by the President of Bio-Path to the effect that all
representations and warranties made by Bio-Path under this Agreement are
true
and correct as of the Closing, the same as though originally given to Ogden
Golf
or Merger Sub on said date;
(ii) a
certificate from the State of Utah dated within five business days of the
Closing to the effect that Bio-Path is in good standing under the laws of
Utah;
(iii) such
other instruments, documents and certificates, if any, as are required to
be
delivered pursuant to the provisions of this Agreement;
(iv) executed
copy of the Articles of Merger for filing in Utah;
(v)
certified copies of resolutions adopted by the stockholders and directors
of
Bio-Path authorizing the Merger;
(vi) all
other items, the delivery of which is a condition precedent to the obligations
of Ogden Golf and Merger Sub, as set forth herein; and
(b) Ogden
Golf and Merger Sub will deliver or cause to be delivered to
Bio-Path:
(i)
stock certificates representing those securities of Ogden Golf to be issued
as a
part of the Merger as described in Section 2 hereof;
(ii) a
certificate of the President of Ogden Golf and Merger Sub, respectively,
to the
effect that all representations and warranties of Ogden Golf and Merger Sub
made
under this Agreement are true and correct as of the Closing, the same as
though
originally given to Bio-Path on said date;
(iii) certified
copies of resolutions adopted by the stockholders and the Board of Directors
of
Merger Sub and the Board of Directors of Ogden Golf authorizing the Merger
and
all related matters;
(iv) certificates
from the jurisdiction of incorporation of Ogden Golf and Merger Sub dated
within
five business days of the Closing Date that each of said corporations is
in good
standing under the laws of said state;
(v)
executed copy of the Articles of Merger for filing in Utah;
(vi) such
other instruments and documents as are required to be delivered pursuant
to the
provisions of this Agreement;
(vii) written
resignation of all of the officers and directors of Ogden Golf and Merger
Sub
and the written appointment of Bio-Path’s nominees as directors and officers of
Ogden Golf; and
(viii) all
other items, the delivery of which is a condition precedent to the obligations
of Bio-Path, as set forth in Section 8 hereof.
13
Finder’s
Fees
. Except as set forth on Schedule B, Ogden Golf and Merger Sub,
jointly and severally, represent and warrant to Bio-Path, and Bio-Path
represents and warrants to each of Ogden Golf and Merger Sub, that
none of them, or any party acting on their behalf, has incurred any liabilities,
either express or implied, to any “broker” or “finder” or similar person in
connection with this Agreement or any of the transactions contemplated hereby.
14.
Post-Closing
Covenants
. After the Closing, Ogden Golf shall timely
file a current report on Form 8-K to report the Merger.
15.
Miscellaneous
.
(a)
Further
Assurances
. At any time, and from time to time, after
the Effective Time, each party will execute such additional instruments and
take
such action as may be reasonably requested by the other party to confirm
or
perfect title to any property transferred hereunder or otherwise to carry
out
the intent and purposes of this Agreement.
(b)
Waiver
. Any
failure on the part of any party hereto to comply with any of its obligations,
agreements or conditions hereunder may be waived in writing by the party
(in its
sole discretion) to whom such compliance is owed.
(c)
Termination
. This
Agreement and all obligations hereunder (other than those under Section 7(i)
and
Section
0
) may be terminated (i) after
December 31, 2007 at the discretion of either party if the Closing has not
occurred by December 31, 2007 (unless the Closing date is extended with the
consent of both Bio-Path and Ogden Golf) for any reason other than the default
hereunder by the terminating party, (ii) at any time by the non-breaching
party
if any of the representations and warranties or other agreements made herein
by
the other party have been materially breached, (iii) by mutual written consent
of Ogden Golf and Bio-Path or (iv) by Bio-Path if Bio-Path Stockholders do
not
approve the Merger.
(d)
Amendment
. This
Agreement may be amended only in writing as agreed to by all parties
hereto.
(e)
Notices
. All
notices and other communications hereunder shall be in writing and shall
be
deemed to have been given if delivered in person or sent by prepaid first
class
registered or certified mail, return receipt requested to the last known address
of the noticed party.
(f)
Headings
. The
section and subsection headings in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(g)
Counterparts
.
This Agreement may be executed simultaneously in two or more counterparts,
each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(h)
Binding
Effect
. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i)
Entire
Agreement
. This Agreement and the attached Exhibits,
including the Certificate of Merger, which is attached hereto as
Exhibit A
, is the entire agreement of the parties covering
everything agreed upon or understood in the transaction. There are no oral
promises, conditions, representations, understandings, interpretations or
terms
of any kind as conditions or inducements to the execution hereof.
(j)
Time
. Time
is of the essence.
(k)
Severability
. If
any part of this Agreement is deemed to be unenforceable, the balance of
the
Agreement shall remain in full force and effect.
(l)
Responsibility
and Costs
. Whether the Merger is consummated or not, all
fees, expenses and out-of-pocket costs, including, without limitation, fees
and
disbursements of counsel, financial advisors and accountants, incurred by
the
parties hereto shall be borne solely and entirely by the party that has incurred
such costs and expenses, unless the failure to consummate the Merger constitutes
a breach of the terms hereof, in which event the breaching party shall be
responsible for all costs of all parties hereto. Notwithstanding the foregoing,
however, the Principal Shareholder shall be responsible for all such costs
and
expenses incurred by Ogden Golf and Merger Sub. The indemnification provisions
of Section 10 shall not apply in the event of the termination of this Agreement
prior to the Closing as a result of a breach hereof by either
party.
(m)
Applicable
Law
. This Agreement shall be construed and governed by
the internal laws of the State of Utah.
(o)
Jurisdiction
and Venue
. Each party hereto irrevocably consents to the
jurisdiction and venue of the state or federal courts located in Harris County,
State of Texas, in connection with any action, suit, proceeding or claim
to
enforce the provisions of this Agreement, to recover damages for breach of
or
default under this Agreement, or otherwise arising under or by reason
of this Agreement.
IN
WITNESS WHEREOF
, the parties have executed this Agreement the day and
year first above written.
OGDEN
GOLF CO. CORPORATION
By:
/s/
Mark
Scharmann
_______________
Title:
President
______________________
BIOPATH
ACQUISITION CORP.
By:
/s/
Mark Scharmann
_____________
Title:
President
______________________
BIO-PATH,
INC.
By:
/s/ Peter Nielsen
_________________
Title:
President
______________________