EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT, (hereinafter the "Agreement") is
made and entered into this 1st day of December, 2000 by and
among Idaho Technical, Inc., a Nevada corporation (hereinafter
"ITI"); Biophan, LLC, a New York limited liability company
(hereinafter "Biophan"); and LTR Antisense Technology, Inc.,
a New York corporation ("Antisense"), a wholly owned
subsidiary of Biophan.
Recitals
WHEREAS, ITI desires to acquire from Biophan all of the
issued and outstanding shares of Antisense capital stock in
exchange for shares of authorized, but previously unissued ITI
common stock.
WHEREAS, Biophan desire to exchange all of its shares of
Antisense capital stock for shares of ITI common stock in the
amount set forth herein;
WHEREAS, it is the intent of the parties hereto that the
transactions contemplated hereby be structured so as to
qualify as a "reorganization" as provided by section 368 of
the Internal Revenue Code of 1986, as amended; and
WHEREAS, ITI desires to arrange for funding of $500,000
to be used for the development of certain patents and products
derived therefrom that are owned by Antisense.
NOW, THEREFORE, in consideration of the premises and
mutual representations, warranties and covenants herein
contained, the parties hereby agree as follows:
Article I
Exchange of Shares
SECTION 1.1 Acquisition and Exchange of Shares. The parties
hereby agree that ITI shall acquire from Biophan, all of the
issued and outstanding shares of Antisense capital stock in
exchange for ten million, seven hundred fifty nine thousand,
one hundred and one (10,759,101) shares of authorized but
previously unissued ITI common stock, par value $.005. The
parties further agree that in consideration for arranging for
and securing funding in the aggregate amount of $500,000 for
the benefit of Antisense and the development of certain U.S.
Patents and any underlying inventions and applications, ITI
will issue and deliver to parties to be designated by ITI, an
additional ten million, seven hundred fifty nine thousand, one
hundred and one (10,759,101) shares of authorized but
previously unissued ITI common stock, par value $.005. Of the
aggregate $500,000 in funding, an advance of $175,000 is to be
delivered to Antisense upon the Closing of this agreement as
described below in Section 1.3
(a) Assets. It is also agreed to by the parties hereto
that by acquiring the shares of Antisense capital stock,
ITI will acquire all rights, title and interest to the
assets and property presently owned by Antisense and
represented in Antisense's financial statements or other
schedules provided to ITI and set forth in Attachment
1.1, annexed hereto and by this reference made a part
hereof. Said assets and property are subject to certain
interests, liens and/or encumbrances which are to be
further described Antisense's financial statements or
other schedules provided to ITI and included in
Attachment 1.1.
(b) Funding. At the Closing, as described below in
Section 1.3, ITI agrees to have delivered to Antisense an
advance of an aggregate of $175,000, and to arrange for
the further commitment for future funding of an
additional $325,000 to Antisense as follows: $175,000 on
or before the second anniversary of this Agreement and
$150,000 on or before the third anniversary of this
Agreement. The parties agree that Antisense will repay
the $175,000 advance at such time as an aggregate of
$2,000,000 in funding as anticipated under Section
1.2(iii) below is realized.
(c) Management Fee. The parties agree that Biophan, or
its wholly owned subsidiary, shall be the general manager
of ITI for at least three years following the execution
of this Agreement and Biophan, or its wholly owned
subsidiary, specifically agrees to oversee the operation
and logistics of the CRADA. The management fee for the
services provided by Biophan, or its wholly owned
subsidiary, shall be $100,000 per year. Biophan has
agreed to defer payment of the management fee until such
time as an aggregate of $2,000,000 in funding as
anticipated under Section 1.2(iii) below is realized.
(d) Reorganization. The parties hereto agree that at
the Closing (i) Antisense shall become a wholly-owned
subsidiary of ITI; and the business operations of ITI
shall be reorganized, and (iii) the name of ITI shall be
changed to GreatBio Technologies, Inc.
SECTION 1.2 Delivery of Shares.
(a) Upon the Closing of this Agreement, ITI shall cause
to be issued and delivered the aggregate of 21,315,533
shares of ITI common stock to be distributed as follows:
(i) A total of 10,759,101 shares shall be
delivered to Biophan, the sole shareholder of
Antisense, in exchange for all the issued and
outstanding shares of Antisense capital stock,
which shares shall be delivered to ITI at the
Closing.
(ii) A total of 10,759,101 shares shall be
delivered to parties to be designated by ITI, in
consideration for the commitment to provide funding
of $325,000 as follows: $175,000 on or before the
second anniversary of this Agreement and $150,000
on or before the third anniversary of this
Agreement, which funding will be in addition to the
advance of $175,000 to be delivered to Antisense at
the Closing. The aggregate of $500,000 in funding
is to be used by Antisense to develop those certain
U.S. Patents and any underlying inventions and
applications directed thereto as depicted in
Attachment 1.1.
(iii) In addition to the provisions of
Section 1.2(a)(ii) above, the parties identified
therein will provide ongoing assistance in raising
capital for the new venture, maintaining good
standing in public markets, and developing the
company. It is anticipated that these parties will
use their reasonable efforts to raise at least $2.0
million, $325,000 of which will be used to fund the
obligations under paragraph (ii) above, and
$1,675,000 of which will be used to fund research
and development and patent acquisitions related to
the MRI-Resistant Cardiac Pacemakers to be acquired
from Biophan sometime after the consummation of
this transaction. All such funds shall be raised
at a price per share which results in a valuation
of ITI following the completion of the offering of
at least $12 million.
(iv) In the event ITI does not fulfill all of its
obligations set forth in this Section 1.2, all of
the patents and intellectual property set forth in
Section 1.1(a) above and being acquired by ITI
hereunder, shall revert back and be fully assigned
and transferred to Biophan.
(b) The 21,315,533 shares of ITI common stock to be
issued hereunder (the "ITI Shares") shall be authorized
but previously unissued shares of ITI common stock. The
ITI Shares shall be issued to those persons and in the
respective amounts set forth in Section 1.2(a) above.
(c) All ITI Shares to be issued hereunder are deemed
"restricted securities" as defined by Rule 144 of the
Securities Act of 1933, as amended (the "1933 Act"), and
the recipients shall represent in writing that they are
acquiring said shares for investment purposes only and
without the intent to make a further distribution of the
ITI Shares. All ITI Shares to be issued under the terms
of this Agreement shall be issued pursuant to an
exemption from the registration requirements of the 1933
Act, under Section 4(2) of the 1933 Act and the rules and
regulations promulgated thereunder. Certificates
representing the ITI Shares to be issued hereunder shall
bear a restrictive legend in substantially the following
form:
The shares represented by this
certificate have not been registered
under the Securities Act of 1933, as
amended, and may not be offered for sale,
sold or otherwise transferred except in
compliance with the registration
provisions of such Act or pursuant to an
exemption from such registration
provisions, the availability of which is
to be established to the satisfaction of
the Company.
SECTION 1.3 Closing. The Closing of this Agreement and the
transactions contemplated hereby (the "Closing") shall take
place at a date and time (the "Closing Date") and place to be
mutually agreed upon by the parties hereto, and shall be
subject to the provisions of Article X of this Agreement. At
the Closing:
(a) Biophan shall deliver to ITI stock certificates
representing 100% of the issued and outstanding shares of
Antisense capital stock, duly endorsed, so as to make ITI
the sole holder thereof, free and clear of all claims and
encumbrances;
(b) ITI shall cause to be delivered to Antisense, an
interest free loan in the sum of $175,000, and ITI agrees
to the further commitment to arrange for funding of an
additional $325,000 as follows: $175,000 on or before
the second anniversary of this Agreement and $150,000 on
or before the third anniversary of this Agreement.
(c) In consideration for shares of Antisense being
acquired, ITI shall deliver to Biophan stock certificates
representing an aggregate of 10,759,101 shares of ITI
common stock, which certificates shall bear a standard
restrictive legend in the form customarily used with
restricted securities and as set forth in Section 1.2(c)
above;
(d) In consideration for the commitment for $325,000 in
additional future funding, ITI shall deliver to those
persons designated by ITI, stock certificates
representing an aggregate of 10,759,101 shares of ITI
common stock, which certificates shall bear a standard
restrictive legend in the form customarily used with
restricted securities and as set forth in Section 1.2(c)
above;
(e) ITI shall deliver an Officer's Certificate as
described in Sections 9.1, 9.2 and 9.4 hereof, dated the
Closing Date, that all representations, warranties,
covenants and conditions set forth herein by ITI are true
and correct as of, or have been fully performed and
complied with by, the Closing Date; and
(f) Biophan and Antisense shall deliver an Officer's
Certificates as described in Sections 8.1, 8.2 and 8.4
hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by
Biophan and Antisense are true and correct as of, or have
been fully performed and complied with by, the Closing
Date;
SECTION 1.4 Unanimous Written Consent by the ITI Board of
Directors. In anticipation of this Agreement, ITI has taken
all necessary and requisite action to call for and hold a
Special Meeting of Board of Directors in order to transact the
following business:
(a) To ratify this Agreement and all transactions
contemplated hereby;
(b) To consent to the appointment of Michael Weiner to
the Board of Directors of ITI immediately after the
Closing Date of this Agreement and, at the election of
Mr. Weiner, he is to be named as Chairman of the Board;
(c) To ratify the amendment to the Articles of
Incorporation whereby following the Closing of this
Agreement, ITI will change its corporate name to GreatBio
Technologies, Inc.;
(d) To consent to the retention of Biophan or its wholly
owned subsidiary as the general manager of ITI; and
(e) To recognize and acknowledge that Biophan and
Michael Weiner do not owe an exclusive duty to ITI in
regard to the acquisition and exploitation of
intellectual property except as such intellectual
property relates to the patents described in Attachment
1.1.
SECTION 1.5 Consummation of Transaction. If at the Closing,
no condition exists which would permit any of the parties to
terminate this Agreement, or a condition then exists and the
party entitled to terminate because of that condition elects
not to do so, then the transactions herein contemplated shall
be consummated upon such date, and then and thereupon, ITI
shall file any additional necessary documents that may be
required by the State of Nevada.
Article II
Representations And Warranties of ITI
ITI hereby represents, warrants and agrees that:
SECTION 2.1 Organization, Good Standing and Corporate Power
of ITI. ITI is a corporation duly organized, validly existing
and presently in good standing under the laws of the State of
Nevada, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in
which such qualification is necessary, and has the corporate
power and authority to own its properties and assets and to
transact the business in which it is engaged. There are no
corporations or other entities with respect to which (i) ITI
owns any of the outstanding stock or other interest, or (ii)
ITI may be deemed to be in control because of factors or
relationships other that the quantity of stock or other
interest owned.
SECTION 2.2 Capitalization of ITI. Prior to an action to be
taken in contemplation of this Agreement, the authorized
capital stock of ITI consisted of 60,000,000 shares of common
stock, par value $.005 per share, of which 4,047,330 were
issued and outstanding. All shares of ITI common stock
currently issued and outstanding have been duly authorized,
validly issued and are fully paid and non-assessable. There
are no preemptive rights, or other outstanding rights,
options, warrants, conversion rights, stock appreciation
rights, redemption rights, repurchase rights, calls,
agreements or commitments of any character obligating ITI to
issue any shares of its capital stock or any security
representing the right to acquire, purchase or otherwise
receive any such stock. Shares of ITI common stock to be
issued pursuant to this Agreement, when so issued, will be
duly authorized, validly issued, fully paid and non-
assessable.
SECTION 2.3 Charter Documents. Certified copies of the ITI
Articles of Incorporation and By-Laws, as amended to date,
have been or will be delivered to Biophan prior to or at the
Closing.
SECTION 2.4 Corporate Documents. The most recent ITI
shareholders' list and corporate minute books, which have been
made available to Biophan, are complete and accurate as of the
date hereof and the corporate minute books contain the
recorded minutes of all corporate meetings of shareholders and
directors.
SECTION 2.5 Financial Statements. ITI's financial statements
for the periods ended February 29 and August 31, 2000, a copy
of which is annexed hereto as Attachment 2.5 and by this
reference made a part hereof, are true and complete in all
material respects, having been prepared in accordance with
generally accepted accounting principles applied on a
consistent basis for the periods covered by such statements,
and fairly present, in accordance with generally accepted
accounting principles, the financial condition of ITI and
results of its operations for the periods covered thereby.
Except as otherwise disclosed to Biophan in writing and as set
forth herein and in Attachment 2.5, and other than according
to the ordinary and usual course of ITI's business consistent
with such practice, (a) ITI has not engaged in any material
transaction since the date of its financial statements, and
(b) there has not been any material adverse change in the
business operations, assets, properties, prospects or
condition (financial or otherwise) of ITI, taken as a whole,
from that reflected in the financial statements referred to in
this Section 2.5.
SECTION 2.6 Absence of Certain Changes or Events. Since the
date of the ITI financial statements attached hereto as
Attachment 2.5 and except as disclosed otherwise herein, ITI
has not (i) issued or sold any promissory note, stock, bond,
option or other corporate security of which it was an issuer
or other obligor, (ii) discharged or satisfied any lien or
encumbrance or paid any obligation or liability, absolute or
contingent, direct of indirect, (iii) incurred or suffered to
be incurred any liability or obligation other than in the
ordinary and usual course of business, (iv) caused or
permitted any lien, encumbrance or security interest to be
created or arise on or in any of its properties or assets, (v)
declared, set aside or made any dividend, payment or other
distribution to any shareholder or purchased or redeemed or
agreed to purchase or redeem any shares of its capital stock,
(vi) reclassified its shares of capital stock, or (vii)
entered into any agreement or transaction except in the
ordinary and usual course of business or in connection with
the execution and performance of this Agreement.
SECTION 2.7 Tax Returns and Payments. ITI has filed with the
appropriate governmental authority, all tax returns, whether
based upon income, sales or franchise, as required by law to
be filed on or before the date of this Agreement, and ITI has
paid all taxes to be due on said returns, any assessments made
against ITI and all other taxes, fees and similar charges
imposed on ITI by any governmental authority. No tax liens
have been filed and no claims are being assessed and no
returns are under audit with respect to any such taxes, fees
or other similar charges.
SECTION 2.8 SEC Reports. ITI is presently subject to the
reporting requirements of Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), has
filed in a timely manner with the Securities and Exchange
Commission (the "SEC"), all reports required to be filed
pursuant to such Act and is "current" in its reporting
obligations. ITI will continue to file with the SEC all
requisite documents and reports necessary for it to maintain
its current status as a reporting company under the Exchange
Act.
SECTION 2.9 Contracts. ITI is not a party to or bound by any
material contract or commitment, including guaranty whether
written or oral, except as may otherwise be disclosed in
Attachment 2.9, annexed hereto and by this reference made a
part hereof.
SECTION 2.10 Non-Exclusivity. ITI hereby acknowledges that
this agreement does not create an exclusive right of ITI to
future patents or technology to be developed or acquired by
Biophan and/or Michael Weiner, and that Biophan and Michael
Weiner will have the right to offer its future patents and
technology to other parties.
SECTION 2.11 Compliance with Law and Government Regulations.
ITI is in compliance with and is not in violation of
applicable federal, state, local or foreign statutes, laws and
regulations (including without limitation, any applicable
building, zoning or other law, ordinance or regulation)
affecting its properties or the operation of its business.
ITI is not subject to any order, decree, judgment or other
sanction of any court, administrative agency or other
tribunal.
SECTION 2.12 Litigation. There is no material litigation,
arbitration, proceeding or investigation pending or threatened
to which ITI is a party or which may result in any material
adverse change in the business or condition, financial or
otherwise, of ITI or in any of its properties or assets, or
which might result in any liability on the part of ITI, or
which questions the validity of this Agreement or of any
action taken or to be taken pursuant to or in connection with
the provisions of this Agreement and, to the best knowledge of
ITI, there is no basis for any such litigation, arbitration,
proceeding or investigation.
SECTION 2.13 Trade Names and Rights. ITI does not use any
trade mark, service mark, trade name, or copyright in its
business, nor does it own any trade marks, trade mark
registrations or application, trade name, service marks,
copyrights, copyright registrations or application. No person
owns any trade mark, trade mark registration or application,
service mark, trade name, copyright, or copyright registration
or application, the use of which is necessary or contemplated
in connection with the operation of ITI's business.
SECTION 2.14 Environmental Matters. There are no actions,
proceedings or investigations pending or, to the actual
knowledge of ITI, threatened before any federal or state
environmental regulatory body, or before any federal or state
court, alleging noncompliance by ITI with the Comprehensive
Environmental Response, Compensation and Liability Act of 1990
("CERCLA") or any other Environmental Laws. To the actual
knowledge of ITI: (i) there is no reasonable basis for the
institution of any action, proceeding or investigation against
ITI under any Environmental Law; (ii) ITI is not responsible
under any Environmental Law for any release by any person at
or in the vicinity of real property of any hazardous substance
(as defined by CERCLA), caused by the spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing of any such hazardous
substance into the environment; (iii) ITI is not responsible
for any costs of any remedial action required by virtue of any
release of any toxic or hazardous substance, pollutant or
contaminant into the environment including, without
limitation, costs arising from security fencing, alternative
water supplies, temporary evacuation and housing and other
emergency assistance undertaken by any environmental
regulatory body; (iv) ITI is in material compliance with all
applicable Environmental Laws; and (v) no real property used,
owned, managed or controlled by ITI contains any toxic or
hazardous substance including, without limitation, any
asbestos, PCBs or petroleum products or byproducts in any
form, the presence, location or condition of which violates
any Environmental Law. For purposes of this Agreement,
"Environmental Laws" shall mean any federal, state, local or
municipal statute, ordinance or regulation, or order, ruling
or other decision of any court, administrative agency or other
governmental authority pertaining to the release of hazardous
substances (as defined in CERCLA) into the environment.
SECTION 2.15 Governmental Consent. No notices, reports or
other filings are required to be made nor are any consents,
registrations, approvals, permits, authorizations or
designations required to be obtained by ITI from any court,
governmental or regulatory authority, agency, commission, body
or other governmental entity, in connection with the execution
and delivery of this Agreement by ITI or the carrying out and
consummation of any transactions contemplated hereby, except
those that the failure to make or obtain are not, individually
or in the aggregate, reasonably likely to have a material
adverse effect or prevent, materially delay or materially
impair the ability of ITI to consummate the transactions
contemplated by this Agreement.
SECTION 2.16 Corporate Authority. ITI has all requisite
corporate power and authority and has taken all corporate
actions necessary in order to execute, deliver and perform its
obligations under this Agreement and to consummate the
transactions contemplated hereby. The ITI Board of Directors
has given unanimous written approval of this Agreement and all
transactions contemplated hereby. The execution and delivery
of this Agreement, the consummation of the transactions
contemplated hereby and compliance by ITI with the provisions
hereof will not (a) conflict with or result in a breach of any
provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default) under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the
properties or assets of ITI under, any of the terms,
conditions or provisions of the Articles of Incorporation or
By-Laws of ITI, or any note, bond, mortgage, indenture,
license, lease, agreement or any instrument or obligation to
which ITI is a party or by which it is bound; or (b) violate
any order, writ, injunction, decree, statute, rule or
regulation applicable to ITI or any of its properties or
assets. Assuming due execution and delivery by the parties
hereto, this Agreement is the valid and binding agreement of
ITI enforceable against ITI in accordance with its respective
terms, except as such enforceability may be limited by
applicable bankruptcy laws or creditors' rights generally or
by general principles of equity.
SECTION 2.17 Legal Proceedings and History. ITI hereby
represents that, unless otherwise disclosed herein or by a
written attachment hereto, no officer, director or affiliate
of ITI nor any person receiving a portion or all of the ITI
Shares to be issued to those persons designated by ITI under
Section 1.1 above, shall have been, within the past five
years; a party to any bankruptcy petition against such person
or against any business of which such person was affiliated;
convicted in a criminal proceeding or subject to a pending
criminal proceeding (excluding traffic violations and other
minor offenses); subject to any order, judgment or decree, not
subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining,
barring, suspending or otherwise limiting their involvement in
any type of business, securities or banking activities; or
found by a court of competent jurisdiction in a civil action,
by the Securities Exchange Commission or the Commodity Futures
Trading Commission to have violated a federal or state
securities or commodities law, and the judgment has not been
reversed, suspended or vacated.
SECTION 2.18 Full Disclosure. None of the representations
and warranties made by ITI herein, or in any attachment or
exhibit annexed hereto, certificate or memorandum furnished or
to be furnished by ITI or on its behalf pursuant hereto,
contains or will contain any untrue statement of material
fact, or omits any material fact, the omission of which would
be misleading.
Article III
Covenants of ITI
SECTION 3.1 Conduct Prior to the Closing. ITI covenants and
agrees as to itself that, after the date hereof and prior to
the Closing (unless Biophan shall otherwise approve in
writing, which approval shall not be unreasonably withheld):
(a) Except within the regular course of business and for
the transactions contemplated by this Agreement, ITI will
not enter into any material agreement, contract or
commitment, whether written or oral, or engage in any
substantive transaction;
(b) ITI will not declare, set aside or pay any dividends
or distributions payable in cash, stock or property, in
respect of its capital stock;
(c) ITI will not amend its Articles of Incorporation or
By-Laws, except as set forth in Section 1.4;
(d) ITI will not authorize, issue, sell, purchase or
redeem or repurchase any shares of its capital stock or
any options, rights or other securities convertible,
exchangeable or exercisable for any shares of its capital
stock, except as set forth in Section 1.2 above;
(e) ITI will comply with all requirements which federal
or state law may impose on it with respect to this
Agreement and the transactions contemplated hereby, and
will promptly cooperate with and furnish written
information to Biophan in connection with any such
requirements imposed upon the parties hereto in
connection therewith;
(f) Except within the regular course of business, ITI
will not incur any indebtedness for money borrowed, issue
or sell any debt securities, incur or suffer to be
incurred any liability or obligation of any nature
whatsoever, cause or permit any lien, encumbrance or
security interest to be created or arise on or in any of
its properties or assets, acquire or dispose of fixed
assets, change employment terms, enter into any material
or long-term contract, guarantee obligations of any third
party, settle or discharge any balance sheet receivable
for less than its stated amount or enter into any other
transaction, except to comply with the terms of this
Agreement; and
(g) ITI shall grant to Biophan and its counsel,
accountants and other representatives, full access during
normal business hours during the period prior to the
Closing to all its respective properties, books,
contracts, commitments and records and, during such
period, furnish promptly to Biophan and such
representatives all information relating to ITI as
Biophan may reasonably request, and shall extend to
Biophan the opportunity to meet with ITI's accountants
and attorneys to discuss the financial condition of ITI.
SECTION 3.2 Affirmative Covenants. Prior to Closing, ITI
will do the following:
(a) Use its best efforts to accomplish all actions
necessary to consummate this Agreement, including
satisfaction of all conditions contained in this
Agreement;
(b) Promptly notify Biophan in writing of any material
adverse change in the financial condition, business,
operations or key personnel of ITI, any threatened
material litigation or investigation, any breach of its
representations or warranties contained herein, and any
material contract, agreement, license or other agreement
which, if in effect on the date of this Agreement, should
have been included in this Agreement or in an attachment
or exhibit annexed hereto and made a part hereof;
(c) Reserve, and promptly after the Closing, issue and
deliver to the respective parties the number of shares of
ITI common stock required hereunder; and
(d) Take any and all other necessary and requisite
corporate actions to accomplish the transactions
anticipated by this Agreement.
Article IV
Representations And Warranties of Antisense And Biophan
Antisense and Biophan hereby represent, warrant and agree
that:
SECTION 4.1 Organization, Good Standing and Corporate Power
of Antisense. Antisense is a corporation duly organized,
validly existing and presently in good standing under the laws
of the State of New York, is duly qualified to do business and
is in good standing as a foreign corporation in each
jurisdiction in which such qualification is necessary, and has
the corporate power and authority to own its properties and
assets and to transact the business in which it is engaged.
There are no corporations or other entities with respect to
which (i) Antisense owns any of the outstanding stock or other
interest, or (ii) Antisense may be deemed to be in control
because of factors or relationships other that the quantity of
stock or other interest owned.
SECTION 4.2 Organization, Good Standing and Corporate Power
of Biophan. Biophan is a limited liability company duly
organized, validly existing and presently in good standing
under the laws of the State of New York, is duly qualified to
do business and is in good standing as a foreign limited
liability company in each jurisdiction in which such
qualification is necessary, and has the power and authority to
own its properties and assets and to transact the business in
which it is engaged.
SECTION 4.3 Charter Documents. Complete and correct copies
of the Articles of Incorporation and By-Laws of Antisense and
all amendments thereto, and the Articles of Organization and
Operating Agreement of Biophan and all amendments thereto,
have been or will be delivered to ITI prior to or at the
Closing.
SECTION 4.4 Financial Statements / Assets and Liabilities.
Antisense's financial statements for the period ended November
29, 2000, a copy of which is annexed hereto as Attachment 4.4
and by this reference made a part hereof, will consist of a
balance sheet which is not to be audited. The balance sheet
is true and complete in all material respects and fairly
present the financial condition of Antisense as of the date of
such report. Except as set forth in Attachment 1.1, Antisense
has good and marketable title to all of its assets and
property to be exchanged with ITI hereunder (by way of Biophan
tendering all of Antisense's outstanding shares of capital
stock to ITI), free and clear of any and all liens, claims and
encumbrances, except as may be otherwise set forth herein and
in its financial statements. Except as otherwise disclosed to
ITI in writing and as set forth herein and in Attachment 4.4,
and other than according to the ordinary and usual course of
Antisense's business, consistent with such practice, (a)
Antisense has engaged only in its routine daily business since
the date of its financial statements, and (b) there has not
been any material adverse change in the business operations,
assets, properties, prospects or condition (financial or
otherwise) of Antisense taken as a whole, from that reflected
in the financial statements referred to in this Section 4.4.
SECTION 4.5 Tax Returns and Payments. All tax returns for
Antisense (federal, state, city, county or foreign) which are
required by law to be filed on or before the date of this
Agreement, have been duly filed or extended with the
appropriate governmental authority. Because Antisense is a
newly formed entity, it has not filed, or been required to
file any tax returns as of the date hereof. No tax liens have
been filed and no claims are being assessed with respect to
any such taxes, fees or other similar charges.
SECTION 4.6 Required Authorizations. There have been or will
be timely filed, given, obtained or taken, all applications,
notices, consents, approvals, orders, registrations,
qualifications waivers or other actions of any kind required
by virtue of execution and delivery of this Agreement by
Antisense and Biophan or the consummation by them of the
transactions contemplated hereby.
SECTION 4.7 Compliance with Law and Government Regulations.
Antisense is in compliance with all applicable federal, state,
local or foreign statutes, laws and regulations (including
without limitation, any applicable building, zoning or other
law, ordinance or regulation) affecting their properties or
operation of their businesses. Antisense is not subject to
any order, decree, judgment or other sanction of any court,
administrative agency or other tribunal.
SECTION 4.8 Litigation. There is no material litigation,
arbitration, proceeding or investigation pending or threatened
to which Antisense is a party or which may result in any
material change in the business or condition, financial or
otherwise, of Antisense or in any of its properties or assets,
or which if determined against Antisense, would have a
material adverse effect against Antisense, or which might
result in any liability on the part of Antisense, or which
questions the validity of this Agreement or of any action
taken or to be taken pursuant to or in connection with the
provisions of this Agreement, and to the best knowledge of
Antisense, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 4.9 Patents, Trade Names and Rights. Attachment 4.9
annexed hereto and by this reference made a part hereof,
contains a complete list of all patents, trademarks, service
marks, trademark, service mark and copyright registrations,
applications and licenses with respect to the foregoing owned
or held by Antisense. Antisense has no knowledge of any facts
and nothing has come to its attention that would lead it to
believe that Antisense has infringed or misappropriated or are
infringing upon any trademark, copyright, patent or other
similar right of any person. No claim relating thereto is
pending or to the knowledge of Antisense is threatened.
SECTION 4.10 Employee Benefit Plans. Antisense represents
that unless otherwise set forth by an attachment or exhibit
annexed hereto as Attachment 4.10, there are not now nor have
there ever been any bonus, deferred compensation, incentive
compensation, stock purchase, stock option, severance or
termination pay, hospitalization or other medical, life or
other insurance, supplemental unemployment benefits, profit-
sharing, pension, or retirement plan, program, agreement or
arrangement, other employee benefit plan, program, agreement
or arrangement (other than arrangements involving the payment
of wages), sponsored, maintained or contributed to or required
to be contributed to by Antisense or any of its subsidiaries
or by any trade or business, whether or not incorporated (an
"ERISA Affiliate") that together with Antisense or any of its
subsidiaries would be deemed a "single employer" within the
meaning of Section 4001(a)(14) of the Employee Retirement
Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder ("ERISA"), for the benefit
of any current or former employee, director or officer of
Antisense or any of its subsidiaries or any ERISA Affiliate
whether formal or informal and whether legally binding or not
with respect to which Antisense or any of its subsidiaries or
any ERISA Affiliate has or may in the future have any
liability or obligation to contribute or make payments or any
kind.
SECTION 4.11 Governmental Consent. No notices, reports or
other filings are required to be made nor are any consents,
registrations, approvals, permits, authorizations or
designations required to be obtained by Antisense or Biophan
from any court, governmental or regulatory authority, agency,
commission, body or other governmental entity, in connection
with the execution and delivery of this Agreement by Antisense
or Biophan or the carrying out and consummation of any
transactions contemplated hereby, except those that the
failure to make or obtain are not, individually or in the
aggregate, reasonably likely to have a material adverse effect
or prevent, materially delay or materially impair the ability
of Antisense or Biophan to consummate the transactions
contemplated by this Agreement.
SECTION 4.12 Authority. Antisense and its sole shareholder,
Biophan, have approved this Agreement and duly authorized the
execution and delivery hereof. Biophan has full power,
authority and legal right to enter into this Agreement, to
consummate the transactions contemplated hereby, and all
corporate action necessary to authorize the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly
taken. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and
compliance by Antisense and Biophan with the provisions hereof
will not (a) conflict with or result in a breach of any
provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default) under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the
properties or assets of Antisense or Biophan under, any of the
terms, conditions or provisions of the Articles of
Incorporation or By-Laws of Antisense, or the Articles of
Organization or Operating Agreement of Biophan, or any note,
bond, mortgage, indenture, license, agreement or any
instrument or obligation to which Antisense or Biophan is
party or by which they are bound; or (b) violate any order,
writ, injunction, decree, statute, rule or regulation
applicable to Antisense or Biophan or any of their properties
or assets. Assuming due execution and delivery by the parties
hereto, this Agreement represents the valid and binding
agreement of Antisense and Biophan. enforceable against each
in accordance with its respective term, except as such
enforceability may limited by applicable bankruptcy laws or
creditors' rights generally or by general principles or
equity.
SECTION 4.13 Legal Proceedings and History. Antisense and
Biophan hereby represent that, unless otherwise disclosed
herein or by a written attachment hereto, no officer, director
or affiliate of Antisense or Biophan nor any person receiving
a portion or all of the ITI Shares to be issued to Biophan
hereunder, shall have been, within the past five years; a
party to any bankruptcy petition against such person or
against any business of which such person was affiliated;
convicted in a criminal proceeding or subject to a pending
criminal proceeding (excluding traffic violations and other
minor offenses); subject to any order, judgment or decree, not
subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining,
barring, suspending or otherwise limiting their involvement in
any type of business, securities or banking activities; or
found by a court of competent jurisdiction in a civil action,
by the Securities Exchange Commission or the Commodity Futures
Trading Commission to have violated a federal or state
securities or commodities law, and the judgment has not been
reversed, suspended or vacated.
SECTION 4.14 Ownership of Shares. Biophan, the sole
shareholder of Antisense representing 100% of the Antisense
capital stock currently issued and outstanding and which stock
is to be transferred to ITI under this Agreement, has full
power and authority to transfer such shares of Antisense
capital stock to ITI hereunder, and such shares are free and
clear of any liens, charges, mortgages, pledges or
encumbrances and such shares are not subject to any claims as
to the ownership thereof, or any rights, powers or interest
therein, by any third party.
SECTION 4.15 Investment Purpose . Biophan represents that
the ITI Shares it will receive hereunder are being acquired
for investment purposes only and acknowledges that the ITI
Shares issued hereunder are "restricted securities" and may
not be sold, traded or otherwise transferred without
registration under the 1933 Act or exemption therefrom.
SECTION 4.16 Full Disclosure. None of the representations
and warranties made by Antisense and/or Biophan herein, or in
any attachment, exhibit, certificate or memorandum furnished
or to be furnished by Antisense and Biophan, contains or will
contain any untrue statement of material fact, or omit any
material fact, the omission of which would be misleading.
Article V
Covenants of Antisense and Biophan
SECTION 5.1 Conduct Prior to the Closing. Antisense and
Biophan covenant and agree that, after the date hereof and
prior to the Closing (unless ITI shall otherwise approve in
writing, which approval shall not be unreasonably withheld):
(a) Antisense will not declare, set aside or pay any
dividends or distributions payable in cash, stock or
property, in respect of its capital stock;
(b) Antisense will not amend, nor will Biophan cause the
amendment of the Antisense Articles of Incorporation or
By-Laws;
(c) Antisense and Biophan will comply with all
requirements which federal or state law may impose on it
with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and
furnish written information to ITI in connection with any
such requirements imposed upon the parties hereto in
connection therewith;
(d) Except within the regular course of business,
Antisense will not incur any indebtedness for money
borrowed, issue or sell any debt securities, incur or
suffer to be incurred any liability or obligation of any
nature whatsoever, cause or permit any lien, encumbrance
or security interest to be created or arise on or in any
of its properties or assets, acquire or dispose of fixed
assets, change employment terms, enter into any material
or long-term contract, guarantee obligations of any third
party, settle or discharge any balance sheet receivable
for less than its stated amount or enter into any other
transaction, except to comply with the terms of this
Agreement; and
(e) Antisense and Biophan shall grant to ITI and its
counsel, accountants and other representatives, full
access during normal business hours during the period
prior to the Closing to all Antisense's respective
properties, books, contracts, commitments and records
and, during such period, furnish promptly to ITI and such
representatives all information relating to Antisense as
ITI may reasonably request, and shall extend to ITI the
opportunity to meet with Antisense's accountants and
attorneys to discuss the financial condition of
Antisense.
SECTION 5.2 Affirmative Covenants. Prior to Closing,
Antisense and Biophan will do the following:
(a) Use their best efforts to accomplish all actions
necessary to consummate this Agreement, including
satisfaction of all the conditions contained in this
Agreement; and
(b) Promptly notify ITI in writing of any materially
adverse change in the financial condition, business,
operations or key personnel of Antisense, any breach of
its representations or warranties contained herein, and
any material contract, agreement, license or other
agreement which, if in effect on the date of this
Agreement, should have been included in this Agreement.
Article VI
Additional Agreements
SECTION 6.1 Expenses. Whether or not the transactions
contemplated in this Agreement are consummated, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expense or as otherwise agreed to herein.
SECTION 6.2 Brokers and Finders. Each of the parties hereto
represents, as to itself, that no agent, broker, investment
banker or firm or person is or will be entitled to any
broker's or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by
this Agreement, except as may be otherwise set forth herein or
by separate document.
SECTION 6.3 Necessary Actions. Subject to the terms and
conditions herein provided, each of the parties hereto agrees
to use all reasonable efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement. In the event at any time
after the Closing, any further action is necessary or
desirable to carry out the purposes of this Agreement, the
proper officers and/or directors of ITI, Antisense or Biophan,
as the case may be, shall take all such necessary action.
SECTION 6.4 Indemnification.
(a) From and after the Closing of this Agreement,
Antisense and Biophan agree to indemnify, defend and hold
harmless ITI against all loss, damage or expense,
(including reasonable legal and accounting fees), caused
by or arising out of (i) any breach or default in the
performance by Antisense and/or Biophan of any covenant
or agreement of Antisense and/or Biophan contained in
this Agreement, (ii) any breach of warranty or inaccurate
or erroneous representations made by Antisense and/or
Biophan herein or in any certificate or other instrument
delivered by or on behalf of Antisense or Biophan
pursuant hereto, and (iii) any and all actions, suits,
proceedings, claims, demands, judgments, costs and
expenses, (including reasonable legal and accounting
fees) incident to the foregoing.
(b) From and after the Closing of this Agreement, ITI
agrees to indemnify, defend and hold harmless Antisense
and Biophan against all loss, damage or expense,
(including reasonable legal and accounting fees), caused
by or arising out of (i) any breach or default in the
performance by ITI of any covenant or agreement of ITI
contained in this Agreement, (ii) any breach of warranty
or inaccurate or erroneous representations made by ITI
herein or in any certificate or other instrument
delivered by or on behalf of ITI pursuant hereto, and
(iii) any and all actions, suits, proceedings, claims,
demands, judgments, costs and expenses, (including
reasonable legal and accounting fees) incident to the
foregoing.
SECTION 6.5 Board of Directors. The parties hereto agree that
immediately after the Closing Date, the ITI Board of Directors
will appoint Michael Weiner to the Board and, at the election
of Mr. Weiner, he is to be named as Chairman of the Board. It
is further agreed that so long as Biophan is the beneficial
owner of at least five percent (5%) of the aggregate
outstanding shares of ITI common stock, Biophan will be
permitted to name at least two directors to the ITI Board of
Directors.
SECTION 6.6 Confidentiality. All parties hereto agree to
keep confidential this Agreement and all information and
documents relating to this Agreement until such time as the
Agreement and the transactions contemplated hereunder are made
public by means of an appropriate press release or by any
other means reasonably assured to make such information
publicly available.
Article VII
Conditions to Obligations of the Parties
The respective obligations of each party to this
Agreement are subject to the fulfillment, satisfaction or
waiver at or prior to the Closing of each of the following
conditions:
SECTION 7.1 Legal Action. No federal or state court or other
governmental entity of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, judgment, decree, preliminary or permanent
injunction or other order that is in effect and restrains,
enjoins or otherwise prohibits consummation of the
transactions contemplated by this Agreement (collectively, an
"Order"), and no governmental entity shall have instituted any
proceeding or formally threatened to institute any proceeding
seeking any such Order and such proceeding or threat remains
unresolved.
SECTION 7.2 Absence of Termination. The obligations to
consummate the transactions contemplated hereby shall not have
been canceled pursuant to Article X hereof.
SECTION 7.3 Required Approvals. ITI and Antisense shall have
received all such approvals, consents, authorizations or
modifications as may be required to permit the performance by
ITI and Antisense of the respective obligations under this
Agreement, and the consummation of the transactions herein
contemplated, whether from governmental authorities or other
persons, and ITI and Antisense shall each have received any
and all permits and approvals from any regulatory authority
having jurisdiction required for the lawful consummation of
this Agreement.
SECTION 7.4 Blue Sky Compliance. There shall have been
obtained any and all permits, approvals and consents of the
Securities or "Blue Sky" Commissions of any jurisdictions, and
of any other governmental body or agency, which counsel for
ITI may reasonably deem necessary or appropriate so that
consummation of the transactions contemplated by this
Agreement may be in compliance with all applicable laws.
Article VIII
Conditions Precedent to Obligations of ITI
All obligations of ITI under this Agreement are subject
to the fulfillment and satisfaction by Antisense and Biophan
prior to or at the time of the Closing, of each of the
following conditions, any one or more of which may be waived
by ITI.
SECTION 8.1 Representations and Warranties True at the
Closing. All representations and warranties of Antisense and
Biophan contained in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and,
except to the extent such representations and warranties speak
as of an earlier date, as of the time of the Closing as though
made on and as of the Closing, and Antisense and Biophan shall
have delivered to ITI closing certificates, dated the date of
the Closing, to such effect and in the form and substance
satisfactory to ITI, and signed, in the case of Antisense and
Biophan, by their president and secretary or other authorized
persons.
SECTION 8.2 Performance. Each of the obligations of
Antisense and Biophan to be performed on or before the Closing
pursuant to the terms of this Agreement shall have been duly
performed at such time, and Antisense and Biophan shall have
delivered to ITI a closing certificate, dated the date of the
Closing, to such effect and in form and substance satisfactory
to ITI.
SECTION 8.3 Authority. All action required to be taken by,
or on the part of Antisense and Biophan to authorize the
execution, delivery and performance of this Agreement by
Antisense and Biophan and the consummation of the transactions
contemplated hereby, shall have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There
shall not have occurred, since the date hereof, any adverse
change in the business, condition, (financial or otherwise),
assets or liabilities of Antisense, or any event or condition
of any character adversely affecting Antisense, and Antisense
shall have delivered to ITI, a closing certificate, dated the
date of the Closing, to such effect and in form and substance
satisfactory to ITI and signed, in the case of Antisense, by
its president and secretary.
Article IX
Conditions Precedent to Obligations of Antisense and Biophan
All obligations of Antisense and Biophan under this
Agreement are subject to the fulfillment and satisfaction by
ITI, prior to or at the time of Closing, of each of the
following conditions, any one or more of which may be waived
by Antisense and Biophan.
SECTION 9.1 Representations and Warranties True at the
Closing. All representations and warranties of ITI contained
in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and, except to the
extent such representations and warranties speak as of an
earlier date, as of the time of the Closing as though made on
and as of the Closing, and ITI shall have delivered to Biophan
a certificate, dated the date of the Closing, to such effect
and in the form and substance satisfactory to Biophan, and
signed, in the case of ITI, by its president and secretary.
SECTION 9.2 Performance. Each of the obligations of ITI to
be performed on or before the Closing pursuant to the terms of
this Agreement shall have been duly performed at the time of
the Closing, and ITI shall have delivered to Biophan a closing
certificate, dated the date of the Closing, to such effect and
in form and substance satisfactory to Biophan, and signed, in
the case of ITI, by its president and secretary.
SECTION 9.3 Authority. All action required to be taken by,
or on the part of ITI, to authorize the execution, delivery
and performance of this Agreement by ITI, and the consummation
of the transactions contemplated hereby shall be duly and
validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There
shall not have occurred, since the date hereof, any adverse
change in the business, condition, (financial or otherwise),
assets or liabilities of ITI or any event or condition of any
character adversely affecting ITI and ITI shall have delivered
to Biophan, a closing certificate, dated the date of the
Closing, to such effect and in form and substance satisfactory
to Biophan and signed, in the case of ITI by its president and
secretary.
SECTION 9.5 Action by ITI Board of Directors. Prior to the
Closing of this Agreement, ITI's Board of Directors shall have
approved this Agreement and all other actions set forth in
Section 1.4 above
Article X
Termination
SECTION 10.1 Termination. Notwithstanding anything herein or
elsewhere to the contrary, this Agreement may be terminated
and the transactions contemplated hereby abandoned an/or
rescinded:
(a) By mutual written agreement of all the parties
hereto at any time, whether before or after the approval
of this Agreement by the respective parties;
(b) By the board of directors of ITI at any time prior
to the Closing if:
(i) a condition to ITI's performance under this
Agreement or a covenant of Antisense or Biophan
contained herein shall not be fulfilled on or
before the time of the Closing or at such other
time and date specified for the fulfillment for
such covenant or condition;
(ii) a material default or breach of this Agreement
shall be made by Antisense or Biophan; or
(iii) the Closing shall not have taken place on
or prior to ___________, 2000.
(c) By the board of directors of Biophan at any time
prior to the Closing if:
(i) a condition to Biophan's performance under
this Agreement or a covenant of ITI contained in
this Agreement shall not be fulfilled on or before
the Closing or at such other time and date
specified for the fulfillment of such covenant or
conditions;
(ii) a material default or breach of this Agreement
shall be made by ITI; or
(iii) the Closing shall not have taken place on
or prior to ______,2000.
SECTION 10.2 Effect of Termination. If this Agreement is
terminated, this Agreement, except as to Section 11.1 and
Section 11.2, shall become void and of no further effect and
there shall be no liability on the part of any party hereto or
any of its respective directors, officers, employees, agents,
shareholders, legal, accounting and financial advisors or
other representatives; provided however, that in the case of
a Termination without cause by a party or a termination
pursuant to Sections 10.1(b)(i) or 10.1(c)(i) hereof because
of a prior material default under or a material breach of this
Agreement by another party, the damages which the aggrieved
party or parties may recover from the defaulting party or
parties shall in no event exceed the amount of out-of-pocket
costs and expenses actually incurred by such aggravated party
or parties in connection with this Agreement, and no party to
this Agreement shall be entitled to any injunctive relief. It
is further agreed to by the parties hereto that upon the
termination of this Agreement pursuant to Section 10.1 above,
all shares of ITI common stock (ITI Shares) issued hereunder
shall be returned to ITI to be canceled on its stock ledger
and, in the event such ITI Shares are not returned to ITI, ITI
will have the absolute right to immediately proceed with the
cancellation of the ITI Shares without having possession
thereof.
Article XI
Miscellaneous
SECTION 11.1 Cost and Expenses. All costs and expenses
incurred in connection with this Agreement will be paid by the
party incurring such expenses. In the event of any
termination of this Agreement pursuant to Section 10.1,
subject to the provisions of Section 10.2, ITI, Antisense and
Biophan will each bear their own respective expenses.
SECTION 11.2 Extension of Time: Waivers. At any time prior
to the Closing date:
(a) ITI may (i) extend the time for the performance of
any of the obligations or other acts of Antisense or
Biophan, (ii) waive any inaccuracies in the
representations and warranties of Antisense or Biophan
contained herein or in any document delivered pursuant
hereto by Biophan, and (iii) waive compliance with any of
the agreements or conditions contained herein to be
performed by Antisense or Biophan. Any agreement on the
part of ITI to any such extension or waiver shall be
valid only if set forth in an instrument, in writing,
signed on behalf of ITI;
(b) Biophan may (i) extend the time for the performance
of any of the obligations or other acts of ITI, (ii)
waive any inaccuracies in the representations and
warranties of ITI contained herein or in any document
delivered pursuant hereto by ITI and (iii) waive
compliance with any of the agreements or conditions
contained herein to be performed by ITI. Any agreement
on the part of Biophan and to any such extension or
waiver shall be valid only if set forth in an instrument,
in writing, signed on behalf of Biophan.
SECTION 11.3 Notices. Any notice to any party hereto
pursuant to this Agreement shall be in writing and given by
Certified or Registered Mail or by facsimile, addressed as
follows:
Copy to:
Idaho Technical, Inc. Leonard E. Neilson
4004 Sunnyside Road Attorney at Law
Sandpoint, Idaho 83864 8160 South Highland
Drive, Suite 209
Sandy, Utah 84093
Copy to:
Biophan, LLC Melissa A. Mahler, Esq.
150 Lucius Gordon Drive Boylan, Brown, Code,
Suite 201 Vigor & Wilson, LLP
West Henrietta, New York 14586 2400 Chase Square
Rochester, New York 14604
Additional notices are to be given as to each party, at
such other address as should be designated in writing
complying as to delivery with the terms of this Section 11.3.
All such notices shall be effective when sent, addressed as
aforesaid.
SECTION 11.4 No Personal Liability. This Agreement shall not
create or be deemed to create any personal liability or
obligation on the part of any direct or indirect shareholder
of ITI, Antisense or Biophan, or any of their respective
officers, directors, employees, agents or representative.
SECTION 11.5 Parties in Interest. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and
the respective successors and assigns. Nothing in this
Agreement is intended to confer, expressly or by implication,
upon any other person any rights or remedies under or by
reason of this Agreement.
SECTION 11.6 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original and together shall constitute one document. The
delivery by facsimile of an executed counterpart of this
Agreement shall be deemed to be an original and shall have the
full force and effect of an original executed copy.
SECTION 11.7 Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or
unenforceability of any provision hereof shall not affect the
validity or enforceability of any of the other provisions
hereof. If any provisions of this Agreement, or the
application thereof to any person or any circumstance, is
illegal, invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted therefor in order to
carry out, so far as may be valid and enforceable, the intent
and purpose of such invalid or unenforceable provision, and
(b) the remainder of this Agreement and the application of
such provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall
such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof,
in any other jurisdiction.
SECTION 11.8 Headings. The Article and Section headings are
provided herein for convenience of reference only and do not
constitute a part of this Agreement and shall not be deemed to
limit or otherwise affect any of the provisions hereof.
SECTION 11.9 Governing Law. This Agreement shall be deemed
to be made in and in all respects shall be interpreted,
construed and governed by and in accordance with the law of
the State of Nevada without regard to the conflict of law
principles thereof. Any action to enforce the provisions of
this Agreement shall be brought in a court of competent
jurisdiction in the State of Nevada and in on other place.
SECTION 11.10 Survival of Representations and Warranties.
All terms, conditions, representations and warranties set
forth in this Agreement or in any instrument, certificate,
opinion, or other writing provided for in it, shall survive
the Closing and the delivery of the Shares of ITI common stock
to be issued hereunder at the Closing, regardless of any
investigation made by or on behalf of any of the parties
hereto.
SECTION 11.11 Assignability. This Agreement shall not be
assignable by operation of law or otherwise and any attempted
assignment of this Agreement in violation of this subsection
shall be void.
SECTION 11.12 Amendment. This Agreement may be amended with
the approval of the boards of directors of ITI and Biophan at
any time before or after approval thereof by ITI and Biophan,
if required; but after such approval, if required, no
amendment shall be made which substantially and adversely
changes the terms hereof. This Agreement may not be amended
except by an instrument, in writing, signed on behalf of each
of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement in a manner legally binding upon them
as of the date first above written.
"ITI"
Idaho Technical, Inc. Attest:
By: _____________________________ ___________________________
Its: President Secretary
"Biophan"
Biophan, LLC Attest:
By: _____________________________ _________________________
Its: C.E.O. Secretary
"Antisense"
LTR Antisense Technology, Inc. Attest:
By: _____________________________ ___________________________
Its: President Secretary
