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AGREEMENT AND PLAN OF MERGER,

Agreement and Plan of Merger
AGREEMENT AND PLAN OF MERGER, | Document Parties: AVIATION UPGRADE TECHNOLOGIES INC | ONCOVISTA ACQUISITION CORP | ONCOVISTA, INC | Surviving Corporation You are currently viewing:
This Agreement and Plan of Merger involves

AVIATION UPGRADE TECHNOLOGIES INC | ONCOVISTA ACQUISITION CORP | ONCOVISTA, INC | Surviving Corporation

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Title: AGREEMENT AND PLAN OF MERGER,
Governing Law: Delaware     Date: 10/29/2007

AGREEMENT AND PLAN OF MERGER,, Parties: aviation upgrade technologies inc , oncovista acquisition corp , oncovista inc , surviving corporation
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AGREEMENT AND PLAN OF MERGER , dated as of October 26, 2007 (the “ Agreement ”), among AVIATION UPGRADE TECHNOLOGIES, INC. , a Nevada corporation with executive offices located at 14785 Omicron Drive, Suite 104, San Antonio, Texas 78245 (“ AVUG ”), ONCOVISTA ACQUISITION CORP . , a Delaware corporation and a wholly-owned subsidiary of AVUG with executive offices located at 14785 Omicron Drive, Suite 104, San Antonio, Texas 78245 (“ Acquisition ”), and ONCOVISTA, INC . , a Delaware corporation with executive offices located at 14785 Omicron Drive, Suite 104, San Antonio, Texas 78245 (“ OncoVista ”). OncoVista , in its capacity as the surviving corporation, is hereinafter sometimes referred to as the “ Surviving Corporation ,” and Acquisition and OncoVista are hereinafter sometimes referred to as the “ Constituent Corporations ”.


 
 


( b )   The sole director of AVUG immediately prior to the Effective Time shall appoint the directors of OncoVista at the Effective Time as the directors of AVUG commencing at the close of business on the last day of the Gap Period, each to serve, in each case (subject to the by-laws of AVUG), until their respective successors shall have been elected and qualified. The sole director of AVUG immediately prior to the Effective Time shall appoint the officers of OncoVista at the Effective Time as the officers of AVUG commencing at the Effective Time , each to serve, in each case (subject to the by-laws of AVUG), until their respective successors shall have been elected and qualified.  For purposes of this Agreement , the term “ Gap Period ” shall mean the period commencing at the Effective Time and terminating on the tenth day following the transmission by AVUG to the holders of record of securities of AVUG the information referenced in Section 5.02(m) of this Agreement.  


 



( c )   Subject to the provisions of Section 2.01(b) of this Agreement , after the Effective Time , each holder of an outstanding certificate or certificates (the “ Old Certificates ”) theretofore representing shares of OncoVista Common Stock , upon surrender thereof to  Interwest Transfer Company, Inc. (the “ Exchange Agent ”), shall be entitled to receive in exchange therefor a certificate or certificates (the “ New Certificates ”) for the number of shares of AVUG Common Stock represented by such Old Certificate or Old Certificates , which AVUG agrees to make available to the Exchange Agent as soon as practicable after the Effective Time , representing the number of shares of AVUG Common Stock into and for which the shares of OncoVista Common Stock theretofore represented by such surrendered Old Certificates have been converted. No certificates or scrip for fractional shares of AVUG Common Stock will be issued, no AVUG stock split or dividend shall relate to any fractional share interest, and no such fractional share interest shall entitle the owner thereof to vote or to any rights of a stockholder of AVUG . In lieu of the issuance or recognition of fractional shares of AVUG Common Stock or interests or rights therein, the Exchange Agent shall round such fraction to the next higher whole number of shares of AVUG Common Stock . Until surrendered and exchanged, each Old Certificate shall after the Effective Time be deemed for all corporate purposes, other than the payment of dividends or liquidating or other distributions, if any, to holders of record of AVUG Common Stock , to represent only the right to receive the number of shares of AVUG Common Stock into and for which the shares of OncoVista Common Stock theretofore represented by such Old Certificate shall have been converted. No dividend or liquidating or other distribution, if any, payable to holders of record of shares of OncoVista Common Stock at or after the Effective Time on shares of AVUG Common Stock , or payable subsequent to the Effective Time to holders of record of shares of OncoVista Common Stock at a time prior to the Effective Time shall be paid to the holders of Old Certificates ; provided, however, that upon surrender and exchange of such Old Certificates there shall be paid (subject to the last sentence of this Section 2.01(c) ) to the record holders of the New Certificates issued in exchange therefor (i) the amount, without interest thereon, of dividends and liquidating or other distributions, if any, which theretofore have become payable to holders of record of shares of OncoVista Common Stock on or after the Effective Time with respect to the number of whole shares of AVUG Common Stock represented by such New Certificates and (ii) the amount, without interest thereon, of dividends and liquidating or other distributions, if any, declared by OncoVista payable to holders of record of shares of OncoVista Common Stock at a time prior to the Effective Time , but payable subsequent to the Effective Time .   If outstanding Old Certificates are not surrendered and exchanged for shares of AVUG Common Stock pursuant hereto prior to two years after the Effective Time (or, in any particular case, prior to the date before the second anniversary of the Effective Time on which the shares of AVUG Common Stock pursuant hereto and the dividends and liquidating or other distributions, if any, would otherwise escheat to, or become the property of, any governmental unit or any agency thereof), then the following shall become the property of AVUG (and, to the extent not in its possession, shall be paid over to it), free and clear of all claims or interest of any other person previously entitled thereto: (i) the number of whole shares of AVUG Common Stock into and for which the shares of OncoVista Common Stock theretofore represented by such Old Certificates shall have been converted, (ii) the amount of dividends and liquidating or other distributions, if any, which theretofore have become payable to holders of record on or after the Effective Time with respect to such number of whole shares of AVUG Common Stock , (iii) the amount of dividends and liquidating or other distributions, if any, declared by OncoVista payable to holders of record of shares of OncoVista Common Stock at a time prior to the Effective Time , but payable subsequent to the Effective Time , and (iv) the amount of dividends and liquidating or other distributions, if any, which subsequently become payable with respect to such number of whole shares of AVUG Common Stock .
 
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(a)   At the Effective Time , AVUG shall assume each option (each a “ OncoVista Stock Option ”) outstanding at the Effective Time granted by OncoVista prior to the Effective Time by executing and delivering to such holder an assumption and AVUG shall be substituted for OncoVista with respect to each OncoVista Stock Option so assumed, and thereafter, until any event that affects the exercise price, each OncoVista Stock Option assumed by AVUG as aforesaid shall represent an option to purchase, instead of OncoVista Common Stock , the number of whole shares of AVUG Common Stock which equals the number of shares of OncoVista Common Stock subject to such option immediately prior to the Effective Time ; and the price per share of AVUG Common Stock at which such option shall be exercisable shall (until any event that affects the exercise price) be an amount (to the next higher whole cent) equal to the option price per share of OncoVista Common Stock immediately prior to the Effective Time . Except as aforesaid, the period during which, and the terms upon which, each OncoVista Stock Option may be exercised shall remain unchanged.

(b)   At the Effective Time, AVUG shall assume each warrant (each a “ OncoVista Warrant ”) outstanding at the Effective Time granted or sold by OncoVista prior to the Effective Time by executing and delivering to such holder an assumption and AVUG shall be substituted for OncoVista with respect to each OncoVista Warrant so assumed, and thereafter, until any event that affects the exercise price, each OncoVista Warrant assumed by AVUG as aforesaid shall represent an option to purchase, instead of OncoVista Common Stock, the number of whole shares of AVUG Common Stock which equals the number of shares of OncoVista Common Stock subject to such option immediately prior to the Effective Time; and the price per share of AVUG Common Stock at which such option shall be exercisable shall (until any event that affects the exercise price) be an amount (to the next higher whole cent) equal to the option price per share of OncoVista Common Stock immediately prior to the Effective Time. Except as aforesaid, the period during which, and the terms upon which, each OncoVista Warrant may be exercised shall remain unchanged.
 
(c) At the Effective Time, each note convertible into OncoVista Common Stock outstanding at the Effective Time granted or sold by OncoVista prior to the Effective Time (each an “ OncoVista Note ”) shall be convertible into, instead of OncoVista Common Stock, the number of whole shares of AVUG Common Stock which equals the number of shares of OncoVista Common Stock subject to such convertible note immediately prior to the Effective Time; and the price per share of AVUG Common Stock at which such convertible note shall be convertible shall (until any event that affects the conversion price) be an amount (to the next higher whole cent) equal to the conversion price per share of OncoVista Common Stock immediately prior to the Effective Time. Except as aforesaid, the period during which, and the terms upon which, each OncoVista Note may be exercised shall remain unchanged.
 


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Section 3. 0 1   Stockholder Approval s; Board of Directors’ Recommendation s . Meetings of the stockholders of Acquisition and of OncoVista shall be held in accordance with the law of their respective jurisdiction of incorporation (or actions by written consent in lieu of a meeting of stockholders shall be executed in accordance with the law of their respective jurisdiction of incorporation) as promptly as possible, after at least 10 days’ prior written notice thereof to the stockholders of the respective corporations in the case of a meeting of stockholders, in each case, among other things, to consider and vote upon the adoption and approval of this Agreement , the Merger , and the other transactions contemplated by this Agreement . AVUG , as the sole stockholder of Acquisition , shall, prior to the Effective Time , vote all shares of capital stock of Acquisition in favor of the adoption and approval of this Agreement , the Merger , and the other transactions contemplated hereby . In the event that the stockholders of AVUG are required to approve the Merger , subject to Section 2.03 hereof and its fiduciary duty to stockholders, the Board of Directors of AVUG shall recommend to its stockholders that this Agreement , the Merger , and the other transactions contemplated hereby be adopted and approved.


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Section 4. 0 1   Effects Under the DGC L .   When the Merger becomes effective, the separate existence of Acquisition shall cease, Acquisition shall be merged into OncoVista , and the Surviving Corporation shall possess all the rights, privileges, powers, and franchises as well of a public as of a private nature, and shall be subject to all the restrictions, disabilities, and duties of each of the Constituent Corporations ; and all and singular, the rights, privileges, powers, and franchises of each of the Constituent Corporations , and all property, real, personal, and mixed, and all debts due to either of the Constituent Corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to each of the Constituent Corporations shall be vested in the Surviving Corporation ; and all property, rights, privileges, powers, and franchises, and all and every other interest shall be thereafter as effectually the property of the Surviving Corporation as they were of the several and respective Constituent Corporations ; and the title to any real estate vested by deed or otherwise, under the laws of the State of Delaware or any other jurisdiction, in either of the Constituent Corporations , shall not revert or be in any way impaired by reason of the Merger ; but all rights of creditors and all liens upon any property of either of the Constituent Corporations shall be preserved unimpaired, and all debts, liabilities, and duties of the respective Constituent Corporations shall thenceforth attach to the Surviving Corporation , and may be enforced against it to the same extent as if such debts, liabilities, and duties had been incurred or contracted by it.

 





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(d)   Until the Release Time , OncoVista will conduct its affairs so that at the Effective Time no representation or warranty of OncoVista will be inaccurate, no covenant or agreement of OncoVista will be breached, and no condition in this Agreement will remain unfulfilled by reason of the actions or omissions of OncoVista . Except as otherwise consented to by AVUG in writing, until the Release Time , OncoVista will use its best efforts to preserve the business operations of OncoVista intact, to keep available the services of its present personnel, to preserve in full force and effect the contracts, agreements, instruments, leases, licenses, arrangements, and understandings of OncoVista , and to preserve the good will of its suppliers, customers, and others having business relations with any of them. Until the Release Time , OncoVista will conduct its affairs in all respects only in the ordinary course, other than in connection with the matters referenced herein.

(e)   Until the Release Time , OncoVista will immediately advise AVUG in a detailed written notice of any material fact or occurrence or any pending or threatened material occurrence of which it obtains knowledge and which (if existing and known at the date of the execution of this Agreement ) would have been required to be set forth or disclosed in or pursuant to this Agreement which (if existing and known at any time prior to or at the Effective Time ) would make the performance by any party of a covenant contained in this Agreement impossible or make such performance materially more difficult than in the absence of such fact or occurrence, or which (if existing and known at the time of the Effective Time ) would cause a condition to any party’s obligations under this Agreement not to be fully satisfied.

(f)   OncoVista shall use its commercially reasonable efforts to insure that all confidential information which OncoVista or any of its respective officers, directors, employees, counsel, agents, investment bankers, or accountants may now possess or may hereafter create or obtain relating to the financial condition, results of operations, businesses, properties, assets, liabilities, or future prospects of OncoVista , any affiliate of OncoVista , or any customer or supplier of any of them or any such affiliate shall not be published, disclosed, or made accessible by any of them to any other person or entity at any time or used by any of them except in the ordinary course of business and for the benefit of OncoVista ; provided, however, that the restrictions of this sentence shall not apply (A) after the Merger is abandoned or terminated pursuant to Article VII or Article VIII or otherwise, (B) as may otherwise be required by law, (C) as may be necessary or appropriate in connection with the enforcement of this Agreement , or (D) to the extent the information shall have otherwise become publicly available.



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(i)   OncoVista shall furnish, or cause to be furnished, for inclusion in the periodic reports of AVUG on Forms 8-K, 10-Q, 10-K, or otherwise (such periodic reports, together with all financial statements, exhibits, amendments, and supplements thereto, in the form filed by AVUG with the Securities and Exchange Commission (the “ SEC ”) being hereinafter called the “ Periodic Reports ”), to be filed pursuant to the Securities Exchange Act of 1934 , as amended (the “ Exchange Act ”), in connection with the Merger , or for inclusion in AVUG ’s filings under state “blue-sky,” securities, or take-over laws, such information about OncoVista or OncoVista ’s security holders as may be required or as may be reasonably requested by AVUG , and shall continue to furnish or cause to be furnished such information as is necessary to keep such information correct and complete in all material respect until the Release Time . OncoVista represents and warrants that the information that it has furnished to date, taken as a whole, does not now, and will not at any time prior to the Release Time , (i) contain an untrue statement of a material fact or (ii) omit to state a material fact required to be stated therein or necessary to make the statements therein not false or misleading .
 
 
 

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( c )   Until the Release Time , AVUG and Acquisition will conduct their respective affairs, so that at the Effective Time no representation or warranty of AVUG or Acquisition will be inaccurate, no covenant or agreement of AVUG or Acquisition will be breached, and no condition in this Agreement will remain unfulfilled by reason of the actions or omissions of AVUG . Until the Release Time , Acquisition will conduct no affairs except in connection with this Agreement , the Merger , or any of the other transactions contemplated by this Agreement . Except as otherwise consented to by OncoVista in writing and except as otherwise contemplated by this Agreement , until the Release Time and until the expiration of the Gap Period , AVUG will conduct its affairs in all respects only in the ordinary course.

( d )   Until the Release Time , AVUG will immediately advise OncoVista in a detailed written notice of any material fact or occurrence or any pending or threatened material occurrence of which it obtains knowledge and which (if existing and known at the date of the execution of this Agreement ) would have been required to be set forth or disclosed in or pursuant to this Agreement or in any schedule hereto, which (if existing and known at any time prior to or at the Effective Time ) would make the performance by any party of a covenant contained in this Agreement impossible or make such performance materially more difficult than in the absence of such fact or occurrence, or which (if existing and known at the time of the Effective Time ) would cause a condition to any party’s obligations under this Agreement not to be fully satisfied.

( e )   Each of AVUG and Acquisition shall use its commercially reasonable efforts to insure that all confidential information which AVUG , Acquisition , or any of their respective officers, directors, employees, counsel, agents, investment bankers, or accountants may now possess or may hereafter create or obtain relating to the financial condition, results of operations, businesses, properties, assets, liabilities, or future prospects of OncoVista , any affiliate of OncoVista , or any customer or supplier of or any such affiliate shall not be published, disclosed, or made accessible by any of them to any other person or entity without the prior written consent of OncoVista , which written consent shall not be unreasonably withheld; provided, however, that the restrictions of this sentence shall not apply (i) as may otherwise be required by law, (ii) as may be necessary or appropriate in connection with the enforcement of this Agreement , or (iii) to the extent the information shall have otherwise become publicly available. AVUG and Acquisition shall, and shall cause all other such persons and entities to, deliver to OncoVista all tangible evidence of the confidential information relating to OncoVista , any affiliate of OncoVista , or (insofar as such confidential information was provided by, or on behalf of, OncoVista , or any such affiliate of OncoVista ) any customer or supplier of any of them or any such affiliate to which the restrictions of the foregoing sentence apply immediately after the abandonment or termination of the Merger pursuant to Article VII or Article VIII or otherwise.
 
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( h )   AVUG and Acquisition shall promptly prepare all required or, in the reasonable opinion of the parties hereto, appropriate Periodic Reports relating to this Agreement , the Merger , and the other transactions contemplated hereby and in connection herewith. AVUG and Acquisition each shall furnish or cause to be furnished, for inclusion in the Periodic Reports , such information about AVUG , Acquisition , and AVUG ’s security holders as may be required or as may be reasonably requested by OncoVista , and shall continue to furnish or cause to be furnished such information as is necessary to keep such information correct and complete in all material respects until the Release Time . AVUG and Acquisition each represents and warrants that the information that it has furnished to date, taken as a whole, does not now, and will not at any time prior to the Release Time , (i) contain an untrue statement of a material fact or (ii) omit to state a material fact required to be stated therein or necessary to make the statements therein not false or misleading . AVUG and Acquisition each shall also take any action required to be taken by it under state “blue-sky,” securities, or take-over laws in connection with the issuance of AVUG Common Stock pursuant to the Merger . The filings made by AVUG since January 1, 2004 with the SEC were, if filed under the Exchange Act , prepared in accordance with the then existing requirements of the Exchange Act and the rules and regulations thereunder and, if filed under the Securities Act , prepared in accordance with the then existing requirements of the Securities Act and the rules and regulations thereunder. Such filings when filed, and the press releases and other public statements AVUG has made subsequent to the last such filing when considered together with such filings, did not at the time of filing or issuance of the press releases or other public statements, as the case may be, and (with respect to the press releases and other public statements, when considered together with such filings) do not now (i) contain an untrue statement of a material fact or (ii) omit to state a material fact required to be stated therein or necessary to make the statements therein not false or misleading .
 
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( i )   If, prior to the Release Time , AVUG Common Stock shall be recapitalized or reclassified or AVUG shall effect any stock dividend, stock split, or reverse stock split of AVUG Common Stock (other than the Stock Split), then the shares of AVUG Common Stock to be delivered under this Agreement or upon exercise, conversion, or exchange of any security to be delivered under this Agreement or assumed by AVUG as contemplated by this Agreement shall be appropriately and equitably adjusted to the kind and amount of shares of stock and other securities and property to which the holders of such shares of AVUG Common Stock or such other security would have been entitled to receive had such stock or such other security been issued and outstanding as of the record date for determining stockholders entitled to participate in such corporate event.


 
 
 


(n) Commencing at the Effective Time , AVUG and Acquisition agree to indemnify and hold harmless OncoVista and OncoVista’s officers, directors, employees, agents, and counsel, in each case past, present, or as they may exist at any time after the date of this Agreement , and each person, if any, who controls, controlled, or will control OncoVista (collectively the “ OncoVista Indemnitees ”) within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act , and, if the Merger is abandoned or terminated pursuant to Article VII or Article VIII or otherwise except solely as a result of a breach of this Agreement by OncoVista, against any and all losses, liabilities, claims, damages, and expenses whatsoever (which shall include, for all purposes of this Section 5.02(n) of this Agreement , but not be limited to reasonable counsel fees and any and all reasonable expenses whatsoever incurred in investigating, preparing, or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation, in each case whether or not involving a third party) as and when incurred, arising out of, based upon, or in connection with (i) any untrue statement or alleged untrue statement of a material fact contained in (A) Periodic Reports or any amendment or supplement thereto or (B) any application or other document or communication filed with any governmental authority in connection with the Merger or filed with any securities exchange; or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading , provided in each case that such untrue statement, alleged untrue statement, omission, or alleged omission relates to information furnished by, or on behalf of, or pertaining to, AVUG or Acquisition or AVUG or Acquistion security holder, or (ii) any breach of any representation, warranty, covenant, or agreement of AVUG or Acquistion contained in this Agreement . The foregoing agreement to indemnify shall be in addition to any liability AVUG or Acquisition may otherwise have, including liabilities arising under this Agreement .
 

 
(a) (i) The information contained in OncoVista’s private placement memorandum dated July 25, 2007, as amended by Supplement No. 1 thereto, dated July 30, 2007 (the “ PPM ”) is accurate, complete, and correct in all material respects and does not contain or omit any information that would make the information contained therein misleading in any material respects. Since July 25, 2007:
 
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(A) There has at no time been a material adverse change in the financial condition, results of operations, businesses, properties, assets, liabilities, or future prospects of OncoVista;
 
(B)   OncoVista has not authorized, declared, paid, or effected any dividend or liquidating or other distribution in respect of its capital stock or any direct or indirect redemption, purchase, or other acquisition of any stock of OncoVista; and
 
(C)   Except as set forth in the PPM, the operations and businesses of OncoVista have been conducted in all respects only in the ordinary course, except:
 
(1)   OncoVista sold an aggregate of 970,712 units in the offering described in the PPM; and
 
(2)   Without giving effect to the Stock Split, OncoVista acquired an aggregate of 10,963,851 shares of AVUG Common Stock, representing approximately 95.7% of the issued and outstanding AVUG Common Stock;
 
(3)   On coVista discontinued its preclinical development of targeted nanoparticles (OVI-111).
 
(ii)   After the Effective Time, OncoVista will maintain disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act and OncoVista believes that such controls and procedures will be effective to ensure that:

(A)   all material information concerning OncoVista will be made known on a timely basis to the individuals to be responsible for the preparation of AVUG’s filings with the SEC and other public disclosure documents following the Effective Time;

(B)   transactions will be executed in accordance with management’s general or specific authorizations;
 
(C)   transactions will be recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles and to maintain asset accountability;

(D)   access to assets will be permitted only in accordance with management’s general or specific authorization; and

(E)   the recorded accountability for assets will be compared with the existing assets at reasonable intervals and appropriate action will be taken with respect to any differences.

(iii)   OncoVista has made available to AVUG copies of, all written descriptions of, and all policies, manuals and other documents promulgating, such disclosure controls and procedures.  The books, records and accounts of OncoVista accurately and fairly reflect, in reasonable detail, the transactions in, and dispositions of, the assets of, and the results of operations of, OncoVista all to the extent required by generally accepted accounting principles.  
 
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(c)   Other than as disclosed on Schedule 6.01(c) , OncoVista has no subsidiaries or affiliated corporation or owns any interest in any other enterprise (whether or not such enterprise is a corporation) (such entities disclosed in Schedule 6.01(c) , the “ OncoVista Subsidiaries ”). OncoVista and each OncoVista Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation or formation, with full power and authority (corporate and other) to own, lease and operate its respective properties and conduct its respective business; except as otherwise disclosed on Schedule 6.01(c) , OncoVista and eac h OncoVista Subsidiary is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the ownership or leasing of its respective properties or the conduct of its respective business requires such qualification, except where the failure to be so qualified or be in good standing would not have a material adverse effect on the business, prospects, condition (financial or otherwise), and results of operations of OncoVista and the OncoVista Subsidiaries taken as a whole ; no proceeding has been instituted in any such jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification; OncoVista and each OncoVista Subsidiary is in possession of , and operating in compliance with , all authorizations, licenses, certificates, consents, orders and permits from state, federal , foreign and other regulatory authorities that are material to the conduct of its respective business, all of which are valid and in full force and effect; neither OncoVista nor any OncoVista Subsidiary is in violation of its respective charter or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material bond, debenture, note or other evidence of indebtedness, or in any material lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its respective properties or assets may be bound , which violation or default would have a material adverse effect on the business, prospects, financial condition or results of operations of OncoVista and the OncoVista Subsidiaries taken as a whole ; and neither OncoVista nor any OncoVista Su bsidiaries is in violation of any law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction thereover or over its respective properties or assets , which violation would have a material adverse effect on the business, prospects, financial condition or results of operations of OncoVista and the OncoVista Subsidiaries taken as a whole .
 
(d)   OncoVista has all requisite power and authority to execute, deliver, and perform this Agreement. Except as set forth in this Agreement, all necessary proceedings of OncoVista have been duly taken to authorize the execution, delivery, and performance of this Agreement thereby. This Agreement has been duly authorized, executed, and delivered by OncoVista, constitutes the legal, valid, and binding obligation of OncoVista, and is enforceable as to OncoVista in accordance with its respective terms. Except as otherwise set forth in this Agreement, no consent, authorization, approval, order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other governmental authority or any court or other tribunal is required by OncoVista or any OncoVista Subsidiary for the execution, delivery, or performance of this Agreement thereby. No consent, approval, authorization or order of , or qualification with , any court, government or governmental agency or body, domestic or foreign, having jurisdiction over OncoVista , any OncoVista Subsidiary, or over its respective properties or assets is required for the execution and delivery of this Agreement and the consummation by OncoVista of the transactions herein and therein contemplated, except such as may be required under the Securities Act or under state or other securities or b lue s ky laws, all of which requirements have been , or in accordance therewith will be, satisfied in all material respects. No consent of any party to any material contract, agreement, instrument, lease, license, arrangement, or understanding to which OncoVista or any OncoVista Subsidiary is a party, or to which it or any of its respective businesses, properties, or assets are subject, is required for the execution, delivery, or performance of this Agreement; and the execution, delivery, and performance of this Agreement will not violate, result in a breach of, conflict with, or (with or without the giving of notice or the passage of time or both) entitle any party to terminate or call a default under, entitle any party to receive rights or privileges that such party was not entitled to receive immediately before this Agreement was executed under, or create any obligation on the part of OncoVista, the Surviving Corporation, or any OncoVista Subsidiary to which it was not subject immediately before this Agreement was executed under, any term of any such material contract, agreement, instrument, lease, license, arrangement, or understanding, or violate or result in a breach of any term of the certificate of incorporation or by-laws or analogous governing document of OncoVista or any OncoVista Subsidiary or (if the provisions of this Agreement are satisfied) violate, result in a breach of, or conflict with any law, rule, regulation, order, judgment, decree, injunction, or writ of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over OncoVista or any OncoVista Subsidiary or over its respective properties or assets .
 
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(e)   There is not any pending or, to OncoVista’ s knowledge, threatened, action, suit, claim or proceeding against OncoVista or any OncoVista Subsidiary , or any of the officers of either of the foregoing, or any of the respective properties, assets or rights of OncoVista or any OncoVista Subsidiary , before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over OncoVista or any OncoVista Subsidiary or over the officers or the properties of either of the foregoing, or otherwise that (i) is reasonably likely to result in any material adverse change in the respective business, prospects, financial condition or results of operations of OncoVista and the OncoVista Subsidiaries taken as a whole or might materially and adversely affect their properties, assets or rights taken as a whole, (ii) might prevent consummation of the transactions contemplated by this Agreement, or (iii) alleging violation of any Federal or state securities laws .
 
(f)   The authorized capital stock of OncoVista consists of 30,000,000 shares of Common Stock, of which 16,888,427 shares of Common Stock are outstanding. Each of such outstanding shares of Common Stock is duly and validly authorized, validly issued, fully paid, and nonassessable, has not been issued and is not owned or held in violation of any preemptive or similar right of stockholders. Each share of capital stock of each OncoVista Subsidiary is duly and validly authorized, validly issued, fully paid, and nonassessable, has not been issued and is not owned or held in violation of any preemptive or similar right of stockholders. Except as set forth in the PPM, (i) there is no commitment, plan, or arrangement to issue, and no outstanding option, warrant, or other right calling for the issuance of, any share of capital stock of, or any security or other instrument convertible into, exercisable for, or exchangeable for capital stock of, OncoVista, and (ii) except as described in the PPM or Schedule 6.01(f) , there is outstanding no security or other instrument convertible into or exchangeable for capital stock of OncoVista. The description of OncoVista's stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted and exercised thereunder, set forth in the PPM accurately and fairly presents the information required to be shown with respect to such plans, arrangements, options and rights under the Securities Act , the Exchange Act, and the r ules and r egulations promulgated thereunde

 
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