Exhibit
2.1
Form
8-K
Ogden
Golf Co. Corporation
File
No. 333-105075
AGREEMENT AND PLAN OF MERGER AND
REORGANIZATION
AMONG
OGDEN GOLF CO. CORPORATION,
BIOPATH ACQUISITION CORP.,
and
BIO-PATH, INC.
AGREEMENT AND PLAN OFMERGER AND
REORGANIZATION
This
Agreement and Plan of Reorganization (hereinafter the “
Agreement ”) is entered into
effective as of this 27 th day
of September, 2007, by and among Ogden Golf Co. Corporation, a
Utah corporation (hereinafter “ Ogden
Golf ”); Biopath Acquisition Corp., a
newly formed Utah corporation and wholly owned subsidiary of
Ogden Golf (hereinafter “ Merger
Sub ”);and Bio-Path, Inc., a Utah
corporation (hereinafter the “
Bio-Path ”).
RECITALS
WHEREAS , the boards of directors of each of Ogden Golf,
Merger Sub and Bio-Path deem it advisable and in the best interests
of such corporations and their respective stockholders that Merger
Sub merge with and into Bio-Path pursuant to this Agreement and the
Utah Articles of Merger (in the form attached hereto as Exhibit
A ) and pursuant to applicable provisions of law (such
transaction hereafter referred to as the “
Merger ”).
WHEREAS , the boards of directors of Merger Sub and
Bio-Path have determined to recommend that the sole stockholder of
Merger Sub and the stockholders of Bio-Path adopt and approve this
Agreement and approve the Merger and the transactions contemplated
by this Agreement;
WHEREAS , pursuant to the Merger, among other things, and
subject to the terms and conditions of this Agreement, all of the
capital stock of Bio-Path shall be converted into the right to
receive a number of shares of the Common Stock of Ogden Golf set
forth in Section 2(b) herein;
WHEREAS , Bio-Path, on the one hand, and Ogden Golf and
Merger Sub, on the other hand, desire to make certain
representations, warranties, covenants and other agreements in
connection with the Merger; and
NOW THEREFORE , for the mutual consideration set out
herein, and other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties agree as
follows:
AGREEMENT
1.
Plan of Reorganization
. The parties to this Agreement do hereby agree
that Merger Sub shall be merged with and into Bio-Path upon
the terms and conditions set forth herein and in accordance
with the provisions of the Utah Revised Business Corporation
Act. It is the intention of the parties hereto that this
transaction qualify as a tax-free reorganization under Section
368(a)(2)(E) of the Internal Revenue Code of 1986, as amended,
and related sections thereunder.
2.
Terms of Merger . In
accordance with the provisions of this Agreement and the
requirements of applicable law, Merger Sub shall be merged
with and into Bio-Path as of the Effective Time (the terms
“ Closing ” and “
Effective Time ” are defined
in Section 6 hereof). Bio-Path shall be the surviving
corporation (hereinafter the “ Surviving
Corporation ”) and the separate existence
of Merger Sub shall cease when the Merger shall become
effective. Consummation of the Merger shall be upon
the following terms and subject to the conditions set forth
herein:
(a)
Corporate Existence .
(i) Commencing
with the Effective Time, the Surviving Corporation shall
continue its corporate existence as a Utah corporation and (i)
it shall thereupon and thereafter possess all rights,
privileges, powers, franchises and property (real, personal
and mixed) of each of Merger Sub and Bio-Path (collectively,
the “ Constituent Corporations
”); (ii) all debts due to either of the Constituent
Corporations, on whatever account, all causes in action and
all other things belonging to either of the Constituent
Corporations shall be taken and deemed to be transferred to
and shall be vested in the Surviving Corporation by virtue of
the Merger without further act or deed; and (iii) all rights
of creditors and all liens, if any, upon any property of any
of the Constituent Corporations shall be preserved unimpaired,
limited in lien to the property affected by such liens
immediately prior to the Effective Time, and all debts,
liabilities and duties of the Constituent Corporations shall
thenceforth attach to the Surviving Corporation.
(ii) At
the Effective Time, (i) the Articles of Incorporation of
Bio-Path, as amended, shall be the Certificate of
Incorporation of the Surviving Corporation, and the By-laws of
Bio-Path, as existing immediately prior to the Effective Time,
shall be and remain the By-laws of the Surviving Corporation;
(ii) the members of the Board of Directors of Bio-Path holding
office immediately prior to the Effective Time shall remain as
the members of the Board of Directors of the Surviving
Corporation (if on or after the Effective Time a vacancy
exists on the Board of Directors of the Surviving Corporation,
such vacancy may thereafter be filled in a manner provided by
applicable law and the By-laws of the Surviving Corporation);
and (iii) until the Board of Directors of the Surviving
Corporation shall otherwise determine, all persons who hold
offices of Bio-Path at the Effective Time shall continue to
hold the same offices of the Surviving
Corporation.
(b)
Conversion of Securities
. As of the Effective Time and without any action
on the part of Ogden Golf, Merger Sub, Bio-Path or the holders
of any of the securities of any of the Constituent
Corporations, each of the following shall occur:
(i) Each
share of Bio-Path Common Stock (as defined hereinafter) issued
and outstanding immediately prior to the Effective Time shall
be converted into a number of shares of Ogden Golf Common
Stock (as defined hereinafter) equal to the Conversion Ratio
(as defined hereinafter). At the Effective Time,
all such shares of Bio-Path Common Stock shall no longer be
outstanding and shall automatically be canceled and shall
cease to exist, and each certificate previously evidencing any
such shares shall thereafter represent the right to receive,
upon the surrender of such certificate in accordance with the
provisions of Section 3 hereof, certificates evidencing such
number of shares of Ogden Golf Common Stock, respectively,
into which such shares of Bio-Path Common Stock were
converted. The holders of such certificates
previously evidencing shares of Bio-Path Common Stock
outstanding immediately prior to the Effective Time shall
cease to have any rights with respect to such shares of
Bio-Path Common Stock except as otherwise provided herein or
by law. The shares of Ogden Golf Common Stock issued to the
holders of the capital stock of Bio-Path shall be subject to
certain restrictions on any sale, assignment, transfer,
encumbrance or other manner of disposition as more fully set
forth below;
(ii) Any
shares of capital stock of Bio-Path held in the treasury of
Bio-Path immediately prior to the Effective Time shall
automatically be canceled and extinguished without any
conversion thereof and no payment shall be made with respect
thereto; and
(iii) Each
share of capital stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be canceled in
the Merger.
Notwithstanding
anything in this Agreement to the contrary, any shares of
Bio-Path Capital Stock issued and outstanding immediately
prior to the Effective Time and held by a holder (a “
Dissenting Stockholder ”) who
has not voted in favor of the Merger or consented thereto in
writing and who has properly demanded appraisal for such
shares in accordance with the Utah Revised Business
Corporation Act (“ Dissenting
Shares ”) shall not be converted into a
right to receive the Ogden Golf Common Stock at the Effective
Time, but shall represent and become the right to receive such
consideration as may be determined to be due to such
Dissenting Stockholder pursuant to the laws of the State of
Utah, unless and until such holder fails to perfect or
withdraws or otherwise loses such holder’s right to
appraisal and payment under the Utah Revised Business
Corporation Act (the “ URBC
”). At the Effective Time, by virtue of the
Merger and without any action on the part of the holder
thereof, all Dissenting Shares shall be cancelled and shall
cease to exist. If, after the Effective Time, such Dissenting
Stockholder fails to perfect or withdraws or otherwise loses
such holder’s right to appraisal, such former Dissenting
Shares held by such holder shall be treated as if they had
been converted as of the Effective Time into a right to
receive, upon surrender as provided above, Ogden Golf Common
Stock without any interest thereon. Bio-Path shall give the
Merger Sub, or after the Effective Time, the surviving
corporation, prompt notice of any demands received for
appraisal of shares of Bio-Path capital stock, any withdrawals
of any such demands and any other instruments served pursuant
to the URBC and received by Bio-Path.
(c)
Other Matters .
(i) Upon
the effectiveness of the Merger, each outstanding option or
warrant to purchase Bio-Path Common Stock, whether or not then
exercisable, shall be converted into an option or warrant to
purchase a number of shares of Ogden Golf Common Stock equal
to the Conversion Ratio multiplied by the number of shares of
Bio-Path Common Stock subject to such option or warrant, at a
price per share equal to the exercise price per share in
effect immediately prior to the Merger divided by the
Conversion Ratio. All other terms and conditions of each
option or warrant to purchase Bio-Path Common Stock shall
remain the same.
(ii) At
the Closing, the existing directors of Ogden Golf or its
stockholders shall appoint as officers and nominate and elect
to the Board of Directors of Ogden Golf those set forth listed
on Schedule C (the “ Post Closing
Managers ”), and all of the persons
serving as directors and officers of Ogden Golf immediately
prior to the Closing shall thereafter resign from all of their
positions with Ogden Golf.
(d)
Definitions .
(i) For
purposes of this Agreement, the term “
Conversion Ratio ” shall mean
2.20779528 whereby each share of Bio-Path common stock shall
be converted into 2.20779528 shares of Ogden Golf Common stock
in the Merger. There will be not more than 3,600,000 shares of
Ogden Golf Common Stock issued and outstanding immediately
prior to Closing. Currently, there are 15,511,550 shares of
Bio-Path common stock issued and outstanding. Prior to
Closing, Bio-Path intends to raise additional capital and in
connection therewith issue additional shares of Bio-Path
common stock. The parties anticipate that immediately prior to
Closing there will be not more than 29,911,550 shares of
Bio-Path issued and outstanding. If Bio-Path does
issue additional shares of its common stock prior to the
Effective Time of the Merger, the Conversion Ratio shall
remain the same, 2.20779528. Assuming there are 29,911,550
shares of Bio-Path common stock issued and outstanding at the
time of closing, immediately following the Effective Time
there will be approximately 69,638,579 shares of Ogden Golf
Common Stock issued and outstanding. For purposes of this
Agreement, the term “ Post Closing
Capitalization ” shall mean the actual
number of shares of Ogden Golf Common Stock issued and
outstanding immediately following the Effective Time of the
Merger.
(ii) For
purposes of this Agreement, the term “ Pre
Closing Capitalization ” shall be a
maximum of 3,600,000 shares of the Ogden Golf Common stock
issued and outstanding immediately prior to Closing. No
options, warrants, common stock equivalents or other rights to
acquire any security of the Ogden Golf shall be issued or
outstanding immediately prior to the Closing except as
contemplated by, or described in, this Agreement.
3.
Delivery of Shares . Promptly after
the Effective Time, Ogden Golf shall deliver to each record
holder of certificates formerly representing all of such
holder’s shares of Bio-Path capital stock (the “
Old Certificates ”), at the
address set forth on books of Bio-Path, (i) a notice of the
effectiveness of the Merger and (ii) a Letter of Transmittal
in a form reasonably acceptable to Bio-Path. Upon
surrender of an Old Certificate, together with a Letter of
Transmittal duly executed and completed in accordance with the
instructions thereto, the holder of such Old Certificate
(other than Old Certificates representing Dissenting Shares)
shall be entitled to receive in exchange therefore,
certificates representing the shares of Ogden Golf Common
Stock into which such holder’s shares of Bio-Path
capital stock were converted pursuant to the Merger (the
“ New Certificates ”),
that such holder is entitled to receive, which shall be
delivered by Ogden Golf in accordance with the instructions
provided by such holder in the Letter of Transmittal executed
by such holder. Until surrendered and exchanged as herein
provided, each outstanding certificate which, prior to the
Effective Time, represented Bio-Path Common Stock shall be
deemed for all corporate purposes to evidence ownership of the
same number of shares of Ogden Golf Common Stock into which
the shares of Bio-Path Common Stock represented by such
certificate shall have been so converted. No dividends or
other distributions declared or made with respect to Ogden
Golf Common Stock after the Effective Time will be paid to the
holder of any certificate that prior to the Effective Time
evidenced shares of Bio-Path Common Stock until the holder of
such certificate surrenders or exchanges such certificate as
herein provided. Subject to the effect of any applicable
abandoned property, escheat or similar laws, following
surrender of any such certificate, there will be paid to the
holder of the certificates evidencing shares of Ogden Golf
Common Stock issued in exchange therefore, without interest,
(i) the amount of dividends or other distributions with a
record date after the Effective Time theretofore paid with
respect to such shares of Ogden Golf Common Stock and (ii) at
the appropriate payment date, the amount of dividends or other
distributions, with a record date after the Effective Time but
prior to the surrender and a payment date occurring after
surrender, payable with respect to such shares of Ogden Golf
Common Stock less any withholding taxes which are required
thereon. No party hereto will be liable to any former holder
of Bio-Path Common Stock for any Ogden Golf Common Stock or
dividends or distributions thereon in each case delivered to a
public official pursuant to any applicable abandoned property,
escheat or similar law. In the event any certificate
representing Bio-Path Common Stock shall have been lost,
stolen or destroyed, upon the making of an affidavit of that
fact by the holder of Bio-Path Common Stock claiming such
certificate to be lost, stolen or destroyed and an agreement
by such holder to indemnify and hold harmless Ogden Golf and
the Surviving Corporation against any claim that may be made
against them with respect to such certificate, Ogden Golf will
issue in exchange for such lost, stolen or destroyed
certificate Ogden Golf Common Stock to which such holder is
entitled pursuant to this Agreement.
4.
Representations of Bio-Path
. Except as set forth in Disclosure Schedule 4,
Bio-Path hereby represents and warrants as follows, which
warranties and representations shall also be true as of the
Closing:
(a) Bio-Path
has the corporate power to enter into this Agreement and to
perform its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of
Directors of Bio-Path. This Agreement has been duly executed
and delivered by Bio-Path and constitutes a legal, valid and
binding obligation of Bio-Path, enforceable against Bio-Path
in accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency or other laws
affecting creditor’s rights generally or by legal
principles of general applicability governing the availability
of equitable remedies.
(b) Bio-Path
will deliver to Ogden Golf within 30 days from the date of
execution of this Agreement, a true and complete copy of its
unaudited financial statements as of and for the period ended
September 30, 2007 (hereinafter referred to as the “
Bio-Path Financial Statements
”). The Bio-Path Financial Statements fairly
present, in all material respects, the financial condition of
Bio-Path as of the date thereof and the results of its
operations for the periods then ended. Other than
as set forth herein or in any schedule or Exhibit attached
hereto, there are no material liabilities (including, but not
limited to, tax liabilities), obligations or claims (whether
such liabilities or claims are contingent or absolute, direct
or indirect, and matured or unmatured) not disclosed or
referenced in Bio-Path Financial Statements or in any exhibit
thereto or notes thereto other than contracts or obligations
occurring in the ordinary course of business since September
30, 2007; and no such contracts or obligations occurring in
the ordinary course of business constitute liens or other
liabilities which materially alter the financial condition of
Bio-Path as reflected in the Bio-Path Financial
Statements. Bio-Path has or will have at the
Closing, good title to all assets shown on the Bio-Path
Financial Statements subject only to dispositions and other
transactions in the ordinary course of business, the
disclosures set forth therein and liens and encumbrances of
record. The Bio-Path Financial Statements have been
prepared in accordance with generally accepted accounting
principles (except as may be indicated therein or in the notes
thereto and except for the absence of footnotes, in the case
of unaudited financial statements).
(c) Except
as set forth in Schedule 4(c), from September 30, 2007 to the
date of Closing, there will not be any material adverse change
in the condition of Bio-Path (financial or
otherwise).
(d) Bio-Path
is not a party to, or the subject of, any pending litigation,
claims, or governmental investigation or proceeding not
reflected in the Bio-Path Financial Statements, and to the
knowledge of its executive officers (herein “
Knowledge ”), there are no
lawsuits, claims, assessments, investigations, or similar
matters, threatened or contemplated against or affecting
Bio-Path or the management or properties of
Bio-Path.
(e) Bio-Path
has been duly organized and is validly existing and in good
standing under the laws of the State of Utah, and has the
corporate power to own, lease and operate its property and to
carry on its business as now being conducted and is duly
qualified to do business and in good standing to do business
in any jurisdiction where so required except where the failure
to so qualify would have no material adverse effect on
Bio-Path.
(f) Bio-Path
has filed all state, county and local income, excise, property
and other tax, governmental and/or other returns, forms,
filings, or reports, which are due or required to be filed by
it prior to the date hereof and have paid or made adequate
provision in the Bio-Path Financial Statements for the payment
of all taxes, fees, or assessments which have or may become
due pursuant to such returns, filings or reports or pursuant
to any assessments received. Other than with respect to
federal filings, Bio-Path is not delinquent or obligated for
any tax, penalty, interest, delinquency or charge and there
are no tax liens or encumbrances applicable to
it.
(g) As
of the date of this Agreement, Bio-Path’s authorized
capital stock consists of 100,000,000 shares of Common Stock,
$0.001 par value per share (the “ Bio-Path
Common Stock ”), of which 15,511,550
shares of Bio-Path Common Stock are issued and outstanding;
and 10,000,000 shares of Preferred Stock, $0.001, of which no
shares are issued and outstanding. The Parties acknowledge
that Bio-Path will attempt to raise additional capital from
the sale of its common stock prior to the Effective Time of
the Merger. In such event, the total number of Bio-Path shares
issued and outstanding will be greater than
15,511,550. All outstanding shares of capital stock
of Bio-Path are, and shall be at Closing, validly issued,
fully paid and nonassessable. There are no existing
options, convertible or exchangeable securities, calls,
claims, warrants, preemptive rights, registration rights or
commitments of any character relating to the issued or
unissued capital stock or other securities of
Bio-Path. There are no voting trusts, proxies or
other agreements, commitments or understandings of any
character to which Bio-Path is a party or by which Bio-Path is
bound with respect to the voting of any capital stock of
Bio-Path. There is no outstanding stock
appreciation, phantom stock or similar rights with respect to
any capital stock of Bio-Path. There are no outstanding
obligations to repurchase, redeem or otherwise acquire any
shares of capital stock of Bio-Path.
(h) Bio-Path
has not materially breached any material agreement to which it
is a party. Bio-Path has made available to Ogden Golf copies
of or access to all material contracts, commitments and/or
agreements to which Bio-Path is a party, including all
contracts covering relationships or dealings with related
parties or affiliates.
(i) Bio-Path
has no subsidiary corporations.
(j) The
financial records, minute books, and other documents and
records of Bio-Path have been or will be made available to
Ogden Golf prior to the Closing. The records and documents of
Bio-Path that have been delivered to, or otherwise made
available to, Ogden Golf constitute all of the records and
documents of Bio-Path that Bio-Path is aware of or that are in
its possession.
(k) The
execution of this Agreement does not materially violate or
breach any material agreement or contract to which Bio-Path is
a party, and Bio-Path, to the extent required, has (or will
have by Closing) obtained all necessary approvals or consents
required by any agreement to which Bio-Path is a party. The
execution and performance of this Agreement will not violate
or conflict with any provision of the Certificate of
Incorporation or Bylaws of Bio-Path.
(l) Except
as set forth in Schedule 4(l), Bio-Path has complied with all
of the provisions relating to the issuance of securities, and
for the registration thereof, under the Securities Act of
1933, as amended (the “ Securities
Act ”), other applicable securities laws,
and all applicable blue sky laws in connection with any and
all of its stock issuances. There are no outstanding, pending
or threatened stop orders or other actions or investigations
relating thereto involving federal and state securities laws.
All issued and outstanding shares of Bio-Path’s capital
stock were offered and sold in compliance with federal and
state securities laws and were not offered, sold or issued in
violation of any preemptive right, right of first refusal or
right of first offer and are not subject to any right of
rescission.
(m) Bio-Path
is and has been in compliance with, and Bio-Path has conducted
any business previously owned or operated by it in compliance
with, all applicable laws, orders, rules and regulations of
all governmental bodies and agencies, including applicable
securities laws and regulations and environmental laws and
regulations, except where such noncompliance has and will
have, in the aggregate, no material adverse effect. Bio-Path
has not received notice of any noncompliance with the
foregoing, nor does it have knowledge of any claims or
threatened claims in connection therewith.
(n) Without
limiting the foregoing, (i) Bio-Path and any other person or
entity for whose conduct Bio-Path is legally held responsible
are and have been in compliance with all applicable federal,
state, regional, and local laws, statutes, ordinances,
judgments, rulings and regulations relating to any matters of
pollution, protection of the environment, health or safety, or
environmental regulation or control, and (ii) neither Bio-Path
nor any other person for whose conduct Bio-Path is legally
held responsible has manufactured, generated, treated, stored,
handled, processed, released, transported or disposed of any
hazardous substance on, under, from or at any of
Bio-Path’s properties or in connection with
Bio-Path’s operations. There is no pending or, to
Bio-Path’s knowledge, threatened civil or criminal
litigation, written notice of violation, formal administrative
proceeding or investigation, inquiry or information request by
any federal, state or foreign court, administrative agency or
commission or other governmental authority or instrumentality
(a “ Governmental Authority
”) or other entity relating to any environmental law
involving Bio-Path.
(o) Assuming
the consent of the stockholders of Bio-Path is obtained, and
assuming the appropriate filings are made with the Division of
Corporations of the State of Utah, the execution and delivery
by Bio-Path of this Agreement and the closing documents and
the consummation by Bio-Path of the transactions contemplated
hereby do not and will not (i) require the consent, approval
or action of, or any filing or notice to, any corporation,
firm, person or other entity or any public, governmental or
judicial authority (except for such consents, approvals,
actions, filing or notices the failure of which to make or
obtain will not in the aggregate have a material adverse
effect), other than the consent of the stockholders of
Bio-Path; (ii) violate any order, writ, injunction, decree,
judgment, ruling, law, rule or regulation of any Governmental
Authority applicable to Bio-Path, or its business or assets;
(iii) constitute a material breach of any agreement,
indenture, mortgage, license or other instrument or document
to which Bio-Path is a party or to which it is otherwise
subject; and (iv) violate or conflict with any provision of
the Articles of Incorporation or Bylaws Bio-Path.
(p) There
are no disagreements of any kind presently existing, or
reasonably anticipated by Bio-Path to arise, between the
accountants and lawyers formerly or presently employed by
Bio-Path.
(q) Neither
Bio-Path nor any of its past or present officers or directors
is, or ever has been, the subject of any formal or informal
inquiry or investigation by the the Securities and Exchange
Commission (“ SEC ”) or
The National Association of Securities Dealers, Inc. (“
NASD ”).
(r) No
representation or warranty by Bio-Path contained in this
Agreement and no statement contained in any certificate,
schedule or other communication furnished pursuant to or in
connection with the provisions hereof contains or shall
contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. There is no current or prior
event or condition of any kind or character pertaining to
Bio-Path that may reasonably be expected to have a material
adverse effect on Bio-Path. Except as specifically indicated
elsewhere in this Agreement, all documents delivered by
Bio-Path in connection herewith have been and will be complete
originals, or exact copies thereof.
5.
Representations of Ogden Golf and Merger
Sub . Except as set forth in
Disclosure Schedule 5, Ogden Golf and Merger Sub hereby
represent and warrant as follows, each of which
representations and warranties shall also be true as of the
Closing:
(a) As
of the Closing, the shares of Ogden Golf Common Stock to be
issued and delivered to the stockholders of Bio-Path (the
“ Bio-Path Stockholders
”) hereunder and in connection herewith will, when so
issued and delivered, constitute duly authorized, validly and
legally issued, fully-paid, nonassessable shares of Ogden Golf
capital stock, will not be issued in violation of any
preemptive or similar rights and will be issued free and clear
of all liens and encumbrances. As of the Closing, the shares
of Ogden Golf Common Stock to be reserved for issuance to the
holders of options and warrants to purchase Bio-Path Common
Stock, when so issued and delivered in accordance with such
options or warrants, will constitute duly authorized, validly
and legally issued, fully-paid, nonassessable shares of Ogden
Golf capital stock, will not be issued in violation of any
preemptive or similar rights and will be issued free and clear
of all liens and encumbrances.
(b) Each
of Ogden Golf and Merger Sub has the corporate power to enter
into this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly authorized by the respective Boards of Directors of Ogden
Golf and Merger Sub and by Ogden Golf as the sole stockholder
of Merger Sub. This Agreement has been duly executed and
delivered by each of Ogden Golf and Merger Sub and constitutes
a legal, valid and binding obligation of Ogden Golf and Merger
Sub, enforceable against Ogden Golf and Merger Sub in
accordance with its terms except as enforcement may be limited
by applicable bankruptcy, insolvency or other laws affecting
creditor’s rights generally or by legal principles of
general applicability governing the availability of equitable
remedies.
(c) Ogden
Golf has delivered to Bio-Path a true and complete copy of its
audited financial statements as of and for the fiscal years
ended June 30, 2005 and 2006. Ogden Golf will deliver, or
otherwise make available, its audited financial statements as
of and for the fiscal year ended June 30, 2007, when they
are available (the 2005, 2006 and 2007 audited
financial states of Ogden Golf are hereafter referred to as
the “ Ogden Golf Financial
Statements ”). The Ogden Golf
Financial Statements do, and will, fairly present, in all
material respects, the financial condition of Ogden Golf as of
the date thereof and the results of its operations for the
periods then ended. The Ogden Golf Financial
Statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
(except as may be indicated therein or in the notes thereto
and except for the absence of footnotes, in the case of
unaudited financial statements). Merger Sub has no
financial statements because it was recently formed solely for
the purpose of effectuating the Merger and it has been, is and
will remain inactive except for purposes of the Merger, and it
has no assets, liabilities, contracts or obligations of any
kind other than as incurred in the ordinary course of business
in connection with its incorporation in
Utah. Except as described in Disclosure Schedule
5(c) , Ogden Golf has no subsidiaries (other than Merger
Sub) or affiliates and does not have any direct or indirect
equity participation or similar interest in any corporation,
partnership, limited liability company, joint venture, trust
or other business. Merger Sub has no subsidiaries
or affiliates (other than Ogden Golf) and does not have any
direct or indirect equity participation or similar interest in
any corporation, partnership, limited liability company, joint
venture, trust or other business.
(d) Since
June 30, 2007, there has not been any material adverse change
in the condition of the Ogden Golf or Merger Sub (financial or
otherwise).
(e) Neither
Ogden Golf nor Merger Sub is a party to, or the subject of,
any pending litigation, claims, or governmental investigation
or proceeding not reflected in the Ogden Golf Financial
Statements, and to the knowledge of any Principal Shareholder,
Ogden Golf and Merger Sub, there are no lawsuits, claims,
assessments, investigations, or similar matters, threatened or
contemplated against or affecting Merger Sub, Ogden Golf, or
the management or properties of Ogden Golf or Merger
Sub. Ogden Golf is not subject to any order,
judgment, injunction or decree of any Governmental Authority
or arbitrator.
(f) Ogden
Golf and Merger Sub are each duly organized, validly existing
and in good standing under the laws of the jurisdiction of
their incorporation; each has the corporate power to own,
lease and operate its property and to carry on its business as
now being conducted and is duly qualified to do business and
in good standing to do business in any jurisdiction where so
required except where the failure to so qualify would have no
material adverse effect on Ogden Golf and Merger
Sub. Neither corporation is required to be
qualified to do business in any state other than the State of
Utah.
(g) Ogden
Golf and Merger Sub have each filed all federal, state, county
and local income, excise, property and other tax, governmental
and/or other returns, forms, filings, or reports, which are
due or required to be filed by it prior to the date hereof and
have paid or made adequate provision in the Ogden Golf
Financial Statements for the payment o
