0001493152-16-014266.txt : 20161026 0001493152-16-014266.hdr.sgml : 20161026 20161026062544 ACCESSION NUMBER: 0001493152-16-014266 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20161024 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Changes in Control of Registrant ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20161026 DATE AS OF CHANGE: 20161026 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Oncologix Tech Inc. CENTRAL INDEX KEY: 0000799694 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 861006416 STATE OF INCORPORATION: NV FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-15482 FILM NUMBER: 161951465 BUSINESS ADDRESS: STREET 1: P.O. BOX 8832 CITY: KENTWOOD STATE: MI ZIP: 49518-8832 BUSINESS PHONE: 616-977-9933 MAIL ADDRESS: STREET 1: P.O. BOX 8832 CITY: KENTWOOD STATE: MI ZIP: 49518-8832 FORMER COMPANY: FORMER CONFORMED NAME: BESTNET COMMUNICATIONS CORP DATE OF NAME CHANGE: 20001219 FORMER COMPANY: FORMER CONFORMED NAME: WAVETECH INTERNATIONAL INC DATE OF NAME CHANGE: 19980225 FORMER COMPANY: FORMER CONFORMED NAME: WAVETECH INC DATE OF NAME CHANGE: 19920703 8-K 1 form8-k.htm

 

 

 

U.S. SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): October 24, 2016

 

ONCOLOGIX TECH, INC.

(Name of Small Business Issuer as Specified in Its Charter)

 

Nevada   0-15482   86-1006416
(State or other jurisdiction of   (Commission   (I.R.S. Employer
incorporation or organization)   File Number)   Identification No.)

 

1604 W. Pinhook Rd. #200

Lafayette, LA 70508

(Address of principal executive offices)

 

(616) 977-9933

(Issuer’s telephone number)

 

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

[  ]   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

[  ]   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

[  ]   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

[  ]   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

  
  

 

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

The Registrant’s Form 10-K, any Form 10-Q or any Form 8-K of the Registrant or any other written or oral statements made by or on behalf of the Registrant may contain forward-looking statements that are based on management’s beliefs, assumptions, current expectations, estimates and projections about the medical device business, and the Company itself. Statements, including without limitation, those related to: future revenue, earnings, margins, growth, cash flows, operating measurements, tax rates and tax benefits; expected economic returns; projected operating results, future strength of the Company; future brand positioning; achievement of the Company vision; future marketing investments; the introduction of new lines or categories of products; future growth or success in specific countries, categories or market sectors; capital resources and market risk are forward-looking statements. In addition, words such as “anticipates,” “believes,” “estimates,” “expects,” “forecasts,” “intends,” “is likely,” “plans,” “predicts,” “projects,” “should,” “will,” variations of such words and similar expressions are intended to identify forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions (“Risk Factors”) that are difficult to predict with regard to timing, extent, likelihood and degree of occurrence. Therefore, actual results and outcomes may materially differ from what may be expressed or forecasted in such forward-looking statements.

 

Readers are cautioned not to place undue reliance on such forward-looking statements as they speak only of the Registrant’s views as of the date the statement was made. The Registrant undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

 

ITEM 1.01 – Entry into a Material Definitive Agreement

 

ITEM 5.01 – Changes in Control of Registrant

 

Series B Convertible Preferred Stock Series. On August 28, 2016, the Board of Directors of Oncologix Tech, Inc. (the “Company”) approved the designation of 68,000 shares of a new series of preferred stock. The Series B Convertible Preferred Shares (“Preferred Share(s)”) with the following rights and privileges: (i) Each Preferred Share shall have a par value of $0.001; (ii) each Preferred Share shall not be entitled to receive any dividends; (iii) Each Preferred Share shall have the voting power of 0.1% of the shares of common stock and Preferred Shares taken together; (iv) Each Preferred Share shall be convertible into .001% of the number of the issued and outstanding shares of Common Stock at that time. The complete designations are included in Exhibit 99.1.

 

Series B Convertible Preferred Stock Purchase Agreement. On August 31, 2016, Oncologix Tech, Inc. (the “Company”), entered into a Series B Convertible Preferred Stock Purchase Agreement (“Agreement”) with Diversified Innovative Marketing Enterprises, Ltd. (DIMEVC) for the purchase of up to 53,000 shares of its Series B Convertible Preferred Stock for a total investment of up to ten million dollars ($10,000,000) to be utilized for debt restructuring, working capital, and acquisition capital. The ten million dollar investment is to be issued to the Company in three (3) tranches in the amounts of four million dollars, one million dollars and five million dollars, respectively. The tranches are to be delivered over a period of ninety (90) days. The initial tranche of four million dollars was to be delivered on September 2, 2016. As of the filing of this report, no funds have been received by Oncologix pursuant to the executed contracts and DIMEVS is in default. The CEO of DIMEVC stated that the funds were stolen by an offshore party that has not been disclosed to the Company and that they are seeking to recover the funds. Further, the CEO of DIMEVS stated that when the funds are recovered the Company will be funded within thirty (30) days. No shares of Preferred Stock have been, or will be, conferred until successful funding. Upon the successful funding of the ten million dollars, DIME would have effective control of 53% of the Company’s voting and outstanding shares of stock. The Series B Convertible Preferred Stock Purchase Agreement is attached in Exhibit 99.2.

 

Senior Secured Credit Agreement Amendment Payoff. During August 2016, the Company, together with the participation of the CEO at DIMEVC, negotiated in good faith with its senior secured lender, TCA Global Fund (TCA) for a final settlement of its Senior Secured Credit Agreement. The Company, together with DIMEVC executed all legal documents, with a final Settlement payment to TCA of $2,169,972.54. This payoff amount was valid and binding through September 2, 2016. At this time, due to the lapse of time and failure of DMIVES to execute, the Company remains in default under the terms of the TCA Credit Agreement.

 

Extension of Series B Convertible Preferred Stock Purchase Agreement. On September 5, 2016, Oncologix Tech, Inc. (the “Company”) and DIMEVC verbally agreed to an extension of the Stock Purchase Agreement to October 31, 2016. The Company agreed to a thirty (30) extension of the Agreement but has agreed to modify terms to include two (2) separate five million dollar tranches. Based on the Stock Purchase Agreement and DIMEVC representations, the Company believes it will be able to settle with TCA at the previous mutually agreed upon payoff amounts.

 

ITEM 9.01 – Financial Statements and Exhibits

 

99.1 Series B Convertible Preferred Stock Designations

 

99.2 Series B Convertible Preferred Stock Purchase Agreement

 

 2. 
  

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

Dated: October 26, 2016    
     
  ONCOLOGIX TECH, INC.
     
  By: /s/ Roy Wayne Erwin
    Roy Wayne Erwin, Chief Executive Officer
     
  By: /s/ Michael A. Kramarz
    Michael A. Kramarz, Chief Financial Officer,

 

 3. 
  

 EX-99.1 2 ex99-1.htm

 

Exhibit 99.1

 

  BARBARA K. CEGAVSKE
  Secretary of State
  202 North Carson Street
  Carson City, Nevada 89701-4201
  (775) 684 5708
  Website: www.nvsos.gov

 

Important: Read attached instructions before completing form.

 

ABOVE SPACE IS FOR OFFICE USE ONLY

 

Certificate of Designation For

Nevada Profit Corporations

(Pursuant to NRS 78.1955)

 

1. Name of corporation:

 

ONCOLOGIX TECH, INC.

 

2. By resolution of the board of directors pursuant to a provision in the articles of incorporation, this certificate establishes the following regarding the voting powers, designations, preferences, limitations, restrictions and relative rights of the following class of series of stock:

 

A. Designation and Number.

 

Sixty Eight Thousand (68,000) of the Ten Million (10,000,000) authorized shares of Preferred Stock of the Corporation shall be designated Series B Convertible Preferred Stock (the “Series B Preferred Stock”) and shall possess the rights and privileges set forth below.

 

B. Par Value Stated Value, Purpose of Issuance and Certificates.

 

Each share of Series B Preferred Stock shall have a par value of $0.001, certificates representing the shares of Series B Preferred Stock purchased shall be issued by the Corporation in accordance with the actions of the Board of Directors.

 

C. No Dividends.

 

The shares of Series B Preferred Stock shall not be entitled to receive any dividends.

 

D. Voting

 

(a) Voting Rights. The holders of the Series B Preferred Stock will have the voting rights as described in this Section E or as required by law. For so long as any shares of the Series B Preferred Stock remain issued and outstanding, each share of Series B Preferred Stock shall have the voting power of 0.1% of the voting power of the shares of common stock and preferred stock taken together. For example if there are 500,000,000 shares of the Company’s common stock issued and outstanding at the time of a shareholder vote and 51,000 shares of Series B Preferred Stock, the holders of the Series B Preferred Stock voting with the common stock would have 51,000 (shares) X 0. 1% (of voting power per share) which = 51% of the combined voting power of the common and Series B Preferred voting together.

 

 1. 
  

 

(b) Amendments to Articles and Bylaws. So long as the Series B Preferred stock is outstanding, the Company shall not, without the affirmative vote of the holders of at least 66-2/3% of all outstanding shares of the Series B Preferred Stock, voting separately as a class (i) amend, alter or repeal any provision of the certificate of incorporation or the bylaws of the Company so as to adversely affect the designations, preferences, limitations and relative rights of the Series B Preferred Stock, or (ii) effect any reclassification of the Series B Preferred Stock.

 

(c) Amendment of Rights of Series B Preferred Stock. The Company shall not, without the affirmative vote of the holders of at least 66-2/3% of all outstanding shares of the Series B Preferred Stock, amend, alter or repeal any provision of this Statement of Designations, PROVIDED, HOWEVER, that the Company may, by any means authorized by law and without any vote of the holders of the shares of the Series B Preferred Stock, make technical, corrective, administrative or similar changes in this Statement of Designations, that do not, individually or in the aggregate, adversely affect the rights or preferences of the holders of shares of the Series B Preferred Stock.

 

(d) Special Class Voting Rights. In addition to any other rights provided by law, so long as any Series B Preferred Stock is outstanding, the Corporation, without first obtaining the affirmative vote or written consent of the holders of not less than a majority of such outstanding shares of Series B Preferred Stock, voting separately as a class, will not:

 

(i) authorize or issue shares of any class or series of stock having any preference or priority as to dividends, assets or other rights superior to any such preference or priority of the Series B Preferred Stock, or authorize or issue shares of stock of any class or any bonds, debentures, notes or other obligations convertible into or exchangeable for, or having option rights to purchase, any shares of stock of the Corporation having any preference or priority as to dividends, assets or other rights superior to any such preference or priority of the Series B Preferred Stock; or

 

(ii) reclassify any class or series of stock of the Corporation, that is junior in rights to the Series B Preferred Stock, into a class or series of stock which has any rights senior to or in parity with the Series B Preferred Stock; or

 

(iii) reclassify any class or series of stock of the Corporation, that is in parity with the Series B Preferred Stock, into a class or series of stock which has any rights senior to the Series B Preferred stock.

 

E. Liquidation Preference.

 

In the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary (a “Liquidation”), the Series B Preferred Stock then issued and outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its shareholders on a pari passu basis, whether from capital, surplus or earnings, before any payment shall be made to the holders of shares of Common Stock or upon any other series of Preferred Stock of the Corporation junior to the Series B Preferred Stock, an amount per share equal to the $188.69 per share (the “Stated Value”). If, upon any Liquidation of the Corporation, the assets of the Corporation available for distribution to its shareholders shall be insufficient to pay the holders of shares of the Series B Preferred Stock and the holders of any other series of Preferred Stock with a liquidation preference equal to the liquidation preference of the Series B Preferred Stock the full amounts to which they shall respectively be entitled, the holders of shares of the Series B Preferred Stock and the holders of any other series of Preferred Stock with a liquidation preference equal to the liquidation preference of the Series B Preferred Stock shall receive all the assets of the Corporation available for distribution and each such holder of the Series B Preferred Stock and the holders of any other series of preferred stock with a liquidation preference equal to the liquidation preference of the Series B Preferred Stock shall share ratably in any distribution in accordance with the amounts due such shareholders. After payment shall have been made to the holders of shares of the Series B Preferred Stock of the full amount to which they shall be entitled, as aforesaid, the holders of shares of the Series B Preferred Stock shall be entitled to no further distributions thereon and the holders of shares of the Common Stock and of shares of any other series of stock of the Corporation shall be entitled to share, according to their respective rights and preferences, in all remaining assets of the Corporation available for distribution to its shareholders.

 

F. Conversion Rights.

 

Subject to any limitations on the right of the holders of the Series B Preferred Stock to convert their shares of Series B Preferred Stock into shares Common Stock, the holders of Series B Preferred Stock shall have the following conversion rights:

 

(a) Conversion. Subject to and upon compliance with the provisions of this Section F, the holder of any shares of Series B Preferred Stock shall have the right at such holder’s option, at any time or from time to time after September 1, 2017, to convert any of such shares of Series B Preferred Stock into fully paid and non-assessable shares of Common Stock at the rate of One Thousandths of 1 Percent (0.001%) of the issued and outstanding shares of Common Stock at that time. for each Share of Series B Preferred Stock (the “Conversion Rate”), subject to adjustment as set forth herein. For example if there are 125,000,000 shares of the Company’s common stock issued and outstanding at the time of conversion, the holders of the Series B Preferred Stock will have the right to convert each Series B Preferred Share into 1,250 shares.

 

 2. 
  

 

(b) Mechanics of Conversion. The holder of any shares of Series B Preferred Stock may exercise the conversion right specified in Subsection F(a) above by surrendering to the Corporation or any transfer agent of the Corporation the certificate or certificates for the shares to be converted, accompanied by written notice specifying the number of shares to be converted. Conversion shall be deemed to have been effected on the date when delivery of notice of an election to convert and certificates for shares is made and such date is referred to herein as the “Conversion Date.” Subject to the provisions of Section F, as promptly as practicable thereafter, the Corporation shall issue and deliver to or upon the written order of such holder a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled and a check or cash with respect to any fractional interest in a share of Common Stock as provided herein. Subject to the provisions of Section F, the person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a holder of record of such Common Stock on the applicable Conversion Date. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Series B Preferred Stock surrendered for conversion, the Corporation shall issue and deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Corporation, a new certificate covering the number of shares of Series B Preferred Stock representing the unconverted portion of the certificate so surrendered.

 

(c) Conversion Rate Adjustments. The Conversion Rate shall be subject to the adjustment provisions of Section F below.

 

F. Anti-Dilution Rights.

 

(a) Adjustments for Dividends, Reclassifications, etc. In case the Corporation shall hereafter (i) declare a dividend or make a distribution on its outstanding shares of Common Stock in shares of Common Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into a greater number of shares, or (iii) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares, the Conversion Rate in effect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, combination or reclassification shall be adjusted so that it shall equal the price determined by multiplying the Conversion Rate by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding after giving effect to such action, and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such action. Such adjustment shall be made successively whenever any event listed above shall occur.

 

(b) Adjustment for Reorganization, Consolidation and Merger. In case of any reorganization of the Corporation (or any other corporation the stock or other securities of which are at the time receivable on the conversion of the Series B Preferred Stock) after the Initial Issuance Date, or in case, after such date, the Corporation (or any such other corporation) shall consolidate with or merge into another corporation or entity or convey all or substantially all its assets to another corporation or entity, then and in each such case the holders of the Series B Preferred Stock, upon the conversion thereof as provided in Section E at any time after the consummation of such reorganization, consolidation, merger or conveyance, shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the conversion of their shares of Series B Preferred Stock prior to such consummation, the stock or other securities or property to which such holders would have been entitled upon such consummation if such holders had converted their shares of Series B Preferred Stock immediately prior thereto, all subject to further adjustment as provided in Section F(a) above.

 

(c) Minimum Adjustment. No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least one (1) percent in such rate; provided, however, that any adjustments which by reason of this Section F(c) are not required to be made shall be carried forward and taken into account in any subsequent adjustment required to be made hereunder. All calculations under this Section F shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. Anything in this Section F to the contrary notwithstanding, the Corporation shall be entitled, but shall not be required, to make such changes in the Conversion Rate, in addition to those required by this Section F, as it shall determine, in its sole discretion, to be advisable in order that any dividend or distribution in shares of Common Stock, or any subdivision, reclassification or combination of Common Stock, hereafter made by the Corporation shall not result in any Federal Income tax liability to the holders of Common Stock or securities convertible into Common Stock.

 

(d) Notices. Whenever the Conversion Rate is adjusted, as herein provided, the Corporation shall promptly but no later than ten (10) days after any request for such an adjustment by the holder, cause a notice setting forth the adjusted Conversion Rate and adjusted number of shares of Common Stock issuable upon conversion of Series B Preferred Stock, and, if requested, information describing the transactions giving rise to such adjustments, to be mailed to the holders at their last addresses appearing on the Corporation’s records, and shall cause a certified copy thereof to be mailed to its transfer agent, if any. The Corporation may retain a firm of independent certified public accountants selected by the Board of Directors (who may be the regular accountants employed by the Corporation) to make any computation required by this Section F, and a certificate signed by such firm shall be conclusive evidence of the correctness of such adjustment.

 

 3. 
  

 

(e) Receipt of Stock other than Common Stock. In the event that at any time, as a result of an adjustment made pursuant to this Section F, the holder of Series B Preferred Stock thereafter shall become entitled to receive any shares of the Corporation, other than Common Stock, thereafter the number of such other shares so receivable upon conversion of Series B Preferred Stock shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained herein.

 

(g) Continuation of Rate and Number of Series B Preferred Stock. Irrespective of any adjustments in the Conversion Rate or the number or kind of shares purchasable upon conversion of Series B Preferred Stock, Series B Preferred Stock theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Series B Preferred Stock initially issuable pursuant to this Certificate of Designation.

 

(h) Holder acknowledges that the Company does not have a sufficient number of shares of authorized common stock to allow the conversion of the Series B Preferred Stock as specified herein. The Company will use its reasonable best efforts to affect a reverse stock split or an increase of its authorized common stock (the “Change”) prior to September 1, 2017 to allow full conversion of the Series B Preferred Stock, notwithstanding anything to the contrary provided herein, holder of the Series B Preferred Stock shall have no conversion rights until the Change has been affected.

 

G. Miscellaneous

 

(a) Lost or Stolen Certificates. Upon receipt by the Corporation of evidence of the loss, destruction, theft or mutilation of any Series B Preferred Stock certificates (the “Certificates”) and (in the case of loss, theft or destruction) of indemnity or security reasonably satisfactory to the Corporation, and upon surrender and cancellation of the Certificates, if mutilated, the Corporation shall execute and deliver new Series B Preferred Stock Certificates of like tenor and date. However, the Corporation shall not be obligated to re issue such lost or stolen Series B Preferred Stock Certificates if the Holder thereof contemporaneously requests the Corporation to convert such Series B Preferred Stock into Common Stock, in which event the Corporation shall be entitled to rely on an affidavit of loss, destruction or theft of the Series B Preferred Stock Certificate or, in the case of mutilation, tender of the mutilated certificate, and shall issue the shares of Common Stock issuable upon conversion.

 

(b) No Fractional Shares. If the number of shares of Common Stock issuable upon the conversion of Series B Preferred Stock results in any fractional shares, the Corporation shall not be required to issue fractions of shares, upon conversion of the Series B Preferred Stock or otherwise, or to distribute certificates that evidence fractional shares. With respect to any fraction of a share called for upon any conversion hereof, the Corporation shall pay to the holder an amount in cash equal to such fraction multiplied by the current market value of such fractional share, determined as follows:

 

(c) If the Common Stock is listed on a national securities exchange or admitted to unlisted trading privileges on such exchange or listed for trading on the NMS, the current market value shall be the average of the last reported sale prices of the Common Stock on such exchange for the ten (10) trading days prior to the date of conversion of Series B Preferred Stock; provided that if no such sale is made on a day within such period or no closing sale price is quoted, that day’s market value shall be the average of the closing bid and asked prices for such day on such exchange or system; or

 

(d) If the Common Stock is listed in the over the counter market (other than on NMS) or admitted to unlisted trading privileges, the current market value shall be the mean the average of the last reported bid and asked prices reported by the National Quotation Bureau, Inc. for the ten (10) trading days prior to the date of the conversion of the Series B Preferred Stock; or if the Common Stock is not so listed or admitted to unlisted trading privileges and bid and asked prices are not so reported, the current market value shall be an amount determined in a reasonable manner by the Board of Directors of the Corporation.

 

(e) Status of Converted Stock. In the event any shares of Series B Preferred Stock shall be converted as contemplated hereby, the shares so converted shall be cancelled, shall return to the status of authorized but unissued shares of Preferred Stock of no designated class or series, and shall not be issuable by the Corporation as Series B Preferred Stock.

 

a.          Effective Date of Filing (optional):

 

b.          Officer Signature _______________________________

 

Filing Fee: $175.00

 

IMPORTANT: Failure to include any of the above information and submit the proper fees may cause this filing to be rejected.

 

 4. 
  
 EX-99.2 3 ex99-2.htm

 

Exhibit 99.2

 

Oncologix Tech, INC.

 

SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT

 

This Series B CONVERTIBLE Preferred Stock Purchase Agreement (the “Agreement”) is made and entered into as of August 31, 2016, by and among Oncologix Tech, Inc., a Nevada corporation (the “Company”), and Diversified Innovative Marketing Enterprise Ltd., a Georgia Corporation, “Purchaser”).

 

Recitals

 

Whereas, the Company has authorized the sale and issuance of an aggregate of 53,000 shares of its Series B Convertible Preferred Stock (the “Shares”);

 

Whereas, the Purchaser agrees to provide to Company Ten Million ($10,000,000) U.S. Dollars in consideration for Company Shares in various tranches over a mutually agreed time frame; and

 

Whereas, Purchasers desire to purchase the Shares on the terms and conditions set forth herein; and

 

Whereas, the Company desires to issue and sell the Shares to Purchasers on the terms and conditions set forth herein.

 

Agreement

 

Now, Therefore, in consideration of the foregoing recitals and the mutual promises, representations, warranties, and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Agreement To Sell And Purchase.

 

1.1 Authorization of Shares. The Company has authorized the sale and issuance to Purchaser of the 53,000 of the Series B Shares (the “Shares”). The Shares have the rights, preferences, privileges and restrictions set forth in the Certificate of Designations in the form attached hereto as Exhibit A and, in general each Series B Share shall have the number of votes equal to .1% of the voting power of the shares of common stock and preferred stock taken together. The Series B Shares shall be convertible into 0.001% of the issued and outstanding common stock of the Company at any time after September 12, 2017.

 

1.2 Sale and Purchase. Subject to the terms, conditions and consideration hereof, at the Closing (as hereinafter defined), the Company hereby agrees to issue and sell to Purchaser, and Purchaser agrees to purchase from the Company, severally and not jointly, Fifty-Three Thousand (53,000) Shares, at a purchase price of One Hundred Eighty-Eight Dollars and 68/100 cents ($188.68) per share to total a $10,000,000 investment.

 

1.3 Change of Control. The Company has authorized and the Purchaser recognizes a Change of Control in ownership of the Company whereby with the completion of this Agreement, Purchaser will control, by both ownership and voting power, 53% of the Company.

 

2. Closing, Delivery And Payment.

 

2.1 Closing. The closing of the sale and purchase of the Shares under this Agreement (the “Closing”) shall take place at 10:00 a.m. on the date hereof, at the offices of Oncologix Tech, Inc. in Alexandria , Louisiana or at such other time or place as the Company and Purchaser may mutually agree (such date is hereinafter referred to as the “Closing Date”).

 

2.2 Delivery. At the Closing, subject to the terms and conditions hereof, the Company will deliver to the Purchaser certificates representing the number of Shares to be purchased at the Closing by such Purchaser, against payment of the purchase price therefor by check, wire transfer made payable to the order of the Company, cancellation or conversion of indebtedness or any combination of the foregoing based upon the following Schedule.

 

 1. 
  

 

2.3 Consideration Payment Schedule.

 

Tranche # 1- Four Million ($4,000,000) U.S. Dollars - August 31, 2016, represented by 36,000 Series B Shares

 

Tranche # 2- One Million ($1,000,000) U.S. Dollars- September 16, 2016, represented by 4,000 Series B Shares

 

Tranche # 3- Five Million ($5,000,000) U.S. Dollars- October 21, 2016 (such aggregate of $10,000,000 is hereinafter referred to as the “Purchase Price”.), represented by 13,000 Series B Shares.

 

2.4

 

3. Representations And Warranties Of The Company.

 

Except as set forth on a Schedule of Exceptions delivered by the Company to Purchasers at the Closing, the Company hereby represents and warrants to each Purchaser as of the date of this Agreement as set forth below.

 

3.1 Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. The Company has all requisite corporate power and authority to own and operate its properties and assets, to execute and deliver this Agreement, to issue and sell the Shares and the Conversion Shares, and to carry out the provisions of this Agreement, the Related Agreements and the Restated Charter and to carry on its business as presently conducted and as presently proposed to be conducted. The Company is duly qualified to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on the Company or its business.

 

3.2 Subsidiaries. The Company currently owns five Corporations, Amian Angels Inc., Esteemcare Inc., Affordable Medical Equipment Solutions Inc., Dotolo Research Corporation, Advanced Medical Products and Technologies Inc.

 

3.3 Capitalization; Voting Rights.

 

(a) The authorized capital stock of the Company, immediately prior to the Closing, consists of (i) 750,000,000 shares of Common Stock, 736,615,725 shares of which are issued and outstanding, and (ii) 10,000,000 shares of Preferred Stock, of which are 64,531 shares are designated Series A Preferred Stock and are issued and outstanding, 200,000 shares are designated Series D Convertible Preferred Stock of which 78,564 shares are issued, and 68,000 shares of Series B Convertible Preferred Stock, none of which are issued and outstanding. Within three (3) months of this Agreement, the Company shall, with its best efforts, affect an increase in its authorized common stock to 5 billion shares.

 

(b) Under the Company’s 2000 Stock Option plan, (i) 6,173,750 options have been granted and are currently outstanding and (iii) 473,253 shares of Common Stock remain available for future issuance to officers, directors, employees and consultants of the Company. Under the Company’s 2013 Omnibus Incentive Plan, (i) 3,000,000 shares have been issued to consultants and (iii) 7,000,000 shares of Common Stock remain available for future issuance to officers, directors, employees and consultants of the Company. The Company has not made any representations regarding equity incentives to any officer, employee, director or consultant that are inconsistent with the share amounts and terms set forth in the Company’s board minutes.

 

 2. 
  

 

(c) Other than the shares reserved for issuance under the stock plans and except as may be granted pursuant to this Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or stockholder agreements or agreements of any kind for the purchase or acquisition from the Company of any of its securities.

 

(d) All issued and outstanding shares of the Company’s Common Stock and Preferred Stock (i) have been duly authorized and validly issued and are fully paid and non-assessable, (ii) were issued in compliance with all applicable state and federal laws concerning the issuance of securities; and (iii) with respect to Common Stock only, are subject to a right of first refusal in favor of the Company upon transfer.

 

(e) The rights, preferences, privileges and restrictions of the Shares are as stated in the designations. Each outstanding series of Preferred Stock, except the Series B Preferred Stock, is convertible into Common Stock as of the date hereof and the consummation of the transactions contemplated hereunder will not result in any anti-dilution adjustment or other similar adjustment to the outstanding shares of Preferred Stock. The Conversion Shares will be duly and validly reserved for issuance upon the increase in the authorized Common Stock. When issued in compliance with the provisions of this Agreement and the Restated Charter, the Shares and the Conversion Shares will be validly issued, fully paid and non-assessable, and will be free of any liens or encumbrances other than (i) liens and encumbrances created by or imposed upon Purchasers and (ii) any right of first refusal set forth in the Company’s Bylaws; provided, however, that the Shares and the Conversion Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed. The sale of the Shares and the subsequent conversion of the Shares into Conversion Shares are not and will not be subject to any preemptive rights or rights of first refusal that have not been properly waived or complied with.

 

(f) All options granted are fully vested. No stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any equity securities or rights to purchase equity securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of (i) termination of employment or consulting services (whether actual or constructive); (ii) any merger, consolidation sale of stock or assets, change of control or any other transaction(s) by the Company; or (iii) the occurrence of any other event of combination of events.

 

(g) All outstanding shares of Common Stock and Preferred Stock, and all shares of Common Stock and Preferred Stock issuable upon the exercise or conversion of outstanding options, warrants or other exercisable or convertible securities are subject to a market standoff or “lockup” agreement of not less than 180 days following the Company’s initial public offering.

 

3.4 Authorization; Binding Obligations. All corporate actions on the part of the Company, its officers, directors and stockholders necessary for the authorization of this Agreement and the Related Agreements, the performance of all obligations of the Company hereunder and thereunder at the Closing and the authorization, sale, issuance and delivery of the Shares pursuant hereto and the Conversion Shares pursuant to the Restated Charter has been taken. The Agreement and the Related Agreements, when executed and delivered, will be valid and binding obligations of the Company enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights, (b) general principles of equity that restrict the availability of equitable remedies, and (c) to the extent that the enforceability of the indemnification provisions in the Investor Rights Agreement may be limited by applicable laws.

 

3.5 Financial Statements. The Company has made available to each Purchaser (a) its unaudited balance sheet as at August 31, 2015 and unaudited statement of income for the 12 months ending August 31, 2015 and (b) its unaudited balance sheet as at May 31, 2016 (the “Statement Date”) and unaudited consolidated statement of income 9 month period ending on the Statement Date (collectively, the “Financial Statements”). The Financial Statements, have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated, except as disclosed therein, and present fairly the financial condition and position of the Company as of August 31, 2015 and the Statement Date; provided, however, that the unaudited financial statements are subject to normal recurring year-end audit adjustments (which are not expected to be material either individually or in the aggregate), and do not contain all foot-notes required under generally accepted accounting principles.

 

 3. 
  

 

3.6 Liabilities. The Company has disclosed all material liabilities and, to the best of its knowledge no material contingent liabilities, except current liabilities incurred in the ordinary course of business that have not been, either in any individual case or in the aggregate, materially adverse.

 

3.7 Agreements; Action.

 

(a) Except for agreements explicitly contemplated hereby and agreements between the Company and its employees with respect to the sale of the Company’s outstanding Common Stock, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, employees, affiliates or any affiliate thereof.

 

(b) The Company has disclosed agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) future obligations (contingent or otherwise) of, or payments to, the Company in excess of $100,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses by the Company of “off the shelf” or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company’s products or services or (iv) indemnification by the Company with respect to infringements of proprietary rights.

 

(c) The Company has not (i) accrued, declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred or guaranteed any indebtedness for money borrowed or any other liabilities (other than trade payables and liabilities already disclosed, which were incurred in the ordinary course of business) individually in excess of $100,000 or, in the case of indebtedness and/or liabilities individually less than $100,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business.

 

(d) For the purposes of subsections (b) and (c) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

 

3.8 Obligations to Related Parties. There are no obligations of the Company to officers, directors, stockholders, or employees of the Company other than (a) current and past due payment of salary for services rendered; (b) the repayment of a loan to an officer of Amian Angels less than ten thousand ($10,000) dollars. None of the officers, directors or, to the best of the Company’s knowledge, key employees or stockholders of the Company or any members of their immediate families, is indebted to the Company or has any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation that competes with the Company, other than (i) passive investments in publicly traded companies (representing less than 1% of such company) which may compete with the Company and (ii) investments by venture capital funds with which directors of the Company may be affiliated and service as a board member of a company in connection therewith due to a person’s affiliation with a venture capital fund or similar institutional investor in such company. No officer, director or stockholder, or any member of their immediate families, is, directly or indirectly, interested in any material contract with the Company (other than such contracts as relate to any such person’s ownership of capital stock or other securities of the Company).

 

3.9 Changes. Since the Statement Date, there has not been to the Company’s knowledge:

 

(a) Any change in the assets, liabilities, financial condition, prospects or operations of the Company from that reflected in the Financial Statements, other than changes in the ordinary course of business, none of which individually or in the aggregate has had or is reasonably expected to have a material adverse effect on such assets, liabilities, financial condition, prospects or operations of the Company;

 

 4. 
  

 

(b) Any resignation or termination of any officer, key employee or group of employees of the Company;

 

(c) Any material change, except in the ordinary course of business, in the contingent obligations of the Company by way of guaranty, endorsement, indemnity, warranty or otherwise;

 

(d) Any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the properties, business or prospects or financial condition of the Company;

 

(e) Any waiver by the Company of a valuable right or of a material debt owed to it;

 

(f) Material changes in any compensation arrangement or agreement with any employee, officer, director or stockholder, that have not been disclosed to Purchaser;

 

(g) Any labor organization activity related to the Company;

 

(h) Any debt, obligation or liability incurred, assumed or guaranteed by the Company, except those for immaterial amounts and for current liabilities incurred in the ordinary course of business;

 

(i) Any sale, assignment, or exclusive license or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets;

 

(j) Any change in any material agreement to which the Company is a party or by which it is bound which materially and adversely affects the business, assets, liabilities, financial condition, operations or prospects of the Company, other than items disclosed to Purchaser;

 

(k) Any other event or condition of any character that, either individually or cumulatively, has materially and adversely affected the business, assets, liabilities, financial condition, prospects or operations of the Company; or

 

(l) Any arrangement or commitment by the Company to do any of the acts described in subsection (a) through (k) above].

 

3.10 Title to Properties and Assets; Liens, Etc. The Company has good and marketable title to its properties and assets and good title to its leasehold estates, in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than (a) those resulting from taxes which have not yet become delinquent, (b) minor liens and encumbrances which do not materially detract from the value of the property subject thereto or materially impair the operations of the Company, and (c) those that have otherwise arisen in the ordinary course of business.

 

3.11 Intellectual Property.

 

(a) The Company owns or possesses sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information and other proprietary rights and processes necessary for its business as now conducted and as presently proposed to be conducted, without any known infringement of the rights of others. There are no outstanding options, licenses or agreements of any kind relating to the foregoing proprietary rights, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information and other proprietary rights and processes of any other person or entity other than such licenses or agreements arising from the purchase of “off the shelf” or standard products.

 

 5. 
  

 

(b) The Company has not received any communications alleging that the Company has violated or, by conducting its business as presently proposed to be conducted, would violate any of the patents, trademarks, service marks, trade names, copyrights or trade secrets or other proprietary rights of any other person or entity.

 

(c) The Company is not aware that any of its employees is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with their duties to the Company or that would conflict with the Company’s business as proposed to be conducted. Each former and current employee, officer and consultant of the Company has executed a proprietary information and inventions agreement in a form made available to the Purchasers. No former or current employee, officer or consultant of the Company has excluded works or inventions made prior to his or her employment with the Company from his or her assignment of inventions pursuant to such employee, officer or consultant’s proprietary information and inventions agreement. The Company does not believe it is or will be necessary to utilize any inventions, trade secrets or proprietary information of any of its employees made prior to their employment by the Company, except for inventions, trade secrets or proprietary information that have been assigned to the Company.

 

(d) The Company will establish and maintain appropriate procedures, in consultation with the Board, for developing software and using any “free” or “open source” software. Neither the Company, the Company’s products, nor any software or technology developed by or for the Company is subject to any obligation or condition that would require that any of the Company’s products or any other software or other technology developed by or for the Company (i) be disclosed, distributed, or made available in source code form; (ii) be licensed with the permission to create derivative works; or (iii) be redistributable at no charge.

 

3.12 Compliance with Other Instruments. The Company is not in violation or default of any term of its charter documents, each as amended, or of any provision of any mortgage, indenture, contract, lease, agreement, instrument or contract to which it is party or by which it is bound or of any judgment, decree, order or writ other than any such violation that would not have a material adverse effect on the Company. The execution, delivery, and performance of and compliance with this Agreement, and the Related Agreements, and the issuance and sale of the Shares pursuant hereto and of the Conversion Shares pursuant to the Restated Charter, will not, with or without the passage of time or giving of notice, result in any such material violation, or be in conflict with or constitute a material default under any such term or provision, or result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company or the suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.

 

3.13 Litigation. All actions, suit, proceeding or investigation pending or, to the Company’s knowledge, currently threatened against the Company that would reasonably be expected to result, either individually or in the aggregate, in any material adverse change in the assets, condition, affairs or prospects of the Company, financially or otherwise, or any change in the current equity ownership of the Company or that questions the validity of this Agreement or the right of the Company to enter into any of such agreements, or to consummate the transactions contemplated hereby or thereby, have hereby been disclosed to Purchaser. The foregoing includes, without limitation, actions pending or, to the Company’s knowledge, threatened or any basis therefore known by the Company involving the prior employment of any of the Company’s employees, their use in connection with the Company’s business of any information or techniques allegedly proprietary to any of their former employers, or their obligations under any agreements with prior employers.

 

3.14 Tax Returns and Payments. The Company is and always has been a Subchapter C Corporation. The Company has timely filed all tax returns (federal, state and local) required to be filed by it. All taxes shown to be due and payable on such returns, any assessments imposed, and to the Company’s knowledge all other taxes due and payable by the Company on or before the Closing, have been paid or will be paid prior to the time they become delinquent. The Company has not been advised (a) that any of its returns, federal, state or other, have been or are being audited as of the date hereof, or (b) of any deficiency in assessment or proposed judgment to its federal, state or other taxes. The Company has no knowledge of any liability of any tax to be imposed upon its properties or assets as of the date of this Agreement that is not adequately provided for.

 

 6. 
  

 

3.15 Employees. The Company has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to the Company’s knowledge, threatened with respect to the Company. The Company is not a party to or bound by any currently effective employment contract, deferred compensation arrangement, bonus plan, incentive plan, profit sharing plan, retirement agreement or other employee compensation plan or agreement. No employee of the Company has been granted the right to continued employment by the Company or to any material compensation following termination of employment with the Company. To the Company’s knowledge, no employee of the Company, nor any consultant with whom the Company has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, the Company; and to the Company’s knowledge the continued employment by the Company of its present employees, and the performance of the Company’s contracts with its independent contractors, will not result in any such violation. The Company has not received any notice alleging that any such violation has occurred. The Company is not aware that any officer, key employee or group of employees intend to terminate his, her or their employment with the Company, nor does the Company have a present intention to terminate the employment of any officer, key employee or group of employees. There are no actions pending, or to the Company’s knowledge, threatened, by any former or current employee concerning such person’s employment by the Company.

 

3.16 Obligations of Management. Each officer and key employee of the Company is currently devoting substantially all of his or her business time to the conduct of the business of the Company. The Company is not aware that any officer or key employee of the Company is planning to work less than full time at the Company in the future. No officer or key employee is currently working or, to the Company’s knowledge, plans to work for a competitive enterprise, whether or not such officer or key employee is or will be compensated by such enterprise.

 

3.17 Registration Rights and Voting Rights. Except as required pursuant to the Investor Rights Agreement, the Company is presently not under any obligation, and has not granted any rights, to register under the Securities Act of 1933, as amended (the “Securities Act”), any of the Company’s presently outstanding securities or any of its securities that may hereafter be issued. To the Company’s knowledge, except as contemplated in the Voting Agreement, no stockholder of the Company has entered into any agreement with respect to the voting of equity securities of the Company.

 

3.18 Compliance with Laws; Permits. The Company is not in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its properties, which violation would materially and adversely affect the business, assets, liabilities, financial condition, operations or prospects of the Company. No governmental orders, permissions, consents, approvals or authorizations are required to be obtained and no registrations or declarations are required to be filed in connection with the execution and delivery of this Agreement or the issuance of the Shares or the Conversion Shares, except such as have been duly and validly obtained or filed, or with respect to any filings that must be made after the Closing, as will be filed in a timely manner. The Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business as now being conducted by it, the lack of which could materially and adversely affect the business, assets, properties or financial condition of the Company and believes it can obtain, without undue burden or expense, any similar authority for the conduct of its business as planned to be conducted.

 

3.19 Environmental and Safety Laws. To its knowledge, the Company is not in violation of any applicable statute, law or regulation relating to the environment or occupational health and safety, and to its knowledge, no material expenditures are or will be required in order to comply with any such existing statute, law or regulation.

 

3.20 Offering Valid. Assuming the accuracy of the representations and warranties of Purchasers contained in Section 4.2 hereof, the offer, sale and issuance of the Shares and the Conversion Shares will be exempt from the registration requirements of the Securities Act, and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws. Neither the Company nor any agent on its behalf has solicited or will solicit any offers to sell or has offered to sell or will offer to sell all or any part of the Shares to any person or persons so as to bring the sale of such Shares by the Company within the registration provisions of the Securities Act or any state securities laws.

 

 7. 
  

 

3.21 Full Disclosure. The Company has provided Purchasers with all information requested by Purchasers in connection with their decision to purchase the Shares. Neither this Agreement, the exhibits hereto nor the Related Agreements contain any untrue statement of a material fact nor, to the Company’s knowledge, omit to state a material fact necessary in order to make the statements contained herein or therein not misleading.

 

3.22 Minute Books. The minute books of the Company made available to Purchasers contain a complete summary of all meetings of directors and stockholders since the time of incorporation.

 

3.23 Section 83(b) Elections. To the Company’s knowledge, all elections and notices permitted by Section 83(b) of the Code and any analogous provisions of applicable state tax laws have been timely filed by all employees who have purchased shares of the Company’s common stock under agreements that provide for the vesting of such shares.

 

3.24 Real Property Holding Corporation. The Company is not a real property holding corporation within the meaning of Code Section 897(c)(2) and any regulations promulgated thereunder.

 

3.25 Executive Officers. To the knowledge of the Company, no executive officer or person nominated to become an executive officer of the Company (a) has been convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding minor traffic violations) or (b) is or has been subject to any judgment or order of, the subject of any pending civil or administrative action by the Securities and Exchange Commission or any self-regulatory organization.

 

4. Representations And Warranties Of Purchasers.

 

Each Purchaser hereby represents and warrants to the Company, severally and not jointly, as follows (provided that such representations and warranties do not lessen or obviate the representations and warranties of the Company set forth in this Agreement):

 

4.1 Requisite Power and Authority. Purchaser has all necessary power and authority to execute and deliver this Agreement and the Related Agreements and to carry out their provisions. All action on Purchaser’s part required for the lawful execution and delivery of this Agreement and the Related Agreements has been taken. Upon their execution and delivery, this Agreement and the Related Agreements will be valid and binding obligations of Purchaser, enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights, (b) as limited by general principles of equity that restrict the availability of equitable remedies, and (c) to the extent that the enforceability of the indemnification provisions of the Investor Rights Agreement may be limited by applicable laws.

 

4.2 Investment Representations. Purchaser understands that neither the Shares nor the Conversion Shares have been registered under the Securities Act. Purchaser also understands that the Shares are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part upon Purchaser’s representations contained in the Agreement. Purchaser hereby represents and warrants as follows:

 

(a) Purchaser Bears Economic Risk. Purchaser has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. Purchaser must bear the economic risk of this investment indefinitely unless the Shares (or the Conversion Shares) are registered pursuant to the Securities Act, or an exemption from registration is available. Purchaser understands that the Company has no present intention of registering the Shares, the Conversion Shares or any shares of its Common Stock. Purchaser also understands that there is no assurance that any exemption from registration under the Securities Act will be available and that, even if available, such exemption may not allow Purchaser to transfer all or any portion of the Shares or the Conversion Shares under the circumstances, in the amounts or at the times Purchaser might propose.

 

 8. 
  

 

(b) Acquisition for Own Account. Purchaser is acquiring the Shares and the Conversion Shares for Purchaser’s own account for investment only, and not with a view towards their distribution.

 

(c) Purchaser Can Protect Its Interest. Purchaser represents that by reason of its, or of its management’s, business or financial experience, Purchaser has the capacity to protect its own interests in connection with the transactions contemplated in this Agreement, and the Related Agreements. Further, Purchaser is aware of no publication of any advertisement in connection with the transactions contemplated in the Agreement.

 

(d) Accredited Investor. Purchaser represents that it is an accredited investor within the meaning of Regulation D under the Securities Act.

 

(e) Company Information. Purchaser has had an opportunity to discuss the Company’s business, management and financial affairs with directors, officers and management of the Company and has had the opportunity to review the Company’s operations and facilities. Purchaser has also had the opportunity to ask questions of and receive answers from, the Company and its management regarding the terms and conditions of this investment.

 

(f) Rule 144. Purchaser acknowledges and agrees that the Shares, and, if issued, the Conversion Shares are “restricted securities” as defined in Rule 144 promulgated under the Securities Act as in effect from time to time and must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser has been advised or is aware of the provisions of Rule 144, which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things: the availability of certain current public information about the Company, the resale occurring following the required holding period under Rule 144 and the number of shares being sold during any three-month period not exceeding specified limitations.

 

(g) Residence. If Purchaser is an individual, then Purchaser resides in the state or province identified in the address of Purchaser set forth on Exhibit A; if Purchaser is a partnership, corporation, limited liability company or other entity, then the office or offices of Purchaser in which its investment decision was made is located at the address or addresses of Purchaser set forth on Exhibit A.

 

4.3 Transfer Restrictions. Each Purchaser acknowledges and agrees that the Shares and, if issued, the Conversion Shares are subject to restrictions on transfer as set forth in the Investor Rights Agreement.

 

5. Conditions To Closing.

 

5.1 Conditions to Purchasers’ Obligations at the Closing. Purchasers’ obligation to purchase the Shares at the Closing are subject to the satisfaction, at or prior to the Closing Date, of the following conditions:

 

(a) Representations and Warranties True; Performance of Obligations. The representations and warranties made by the Company in Section 3 hereof shall be true and correct in all material respects as of the Closing Date with the same force and effect as if they had been made as of the Closing Date, and the Company shall have performed all obligations and conditions herein required to be performed or observed by it on or prior to the Closing.

 

(b) Legal Investment. On the Closing Date, the sale and issuance of the Shares and the proposed issuance of the Conversion Shares shall be legally permitted by all laws and regulations to which Purchasers and the Company are subject.

 

 9. 
  

 

(c) Filing of Certificate of Designation for the Series B Preferred Stock. The Certificate of Designation of the Series B Preferred Stock shall have been filed with the Secretary of State of Nevada.

 

(d) Corporate Documents. The Company shall have delivered to Purchaser copies of all corporate documents of the Company as Purchasers shall reasonably request.

 

(e) Compliance Certificate. The Company shall have delivered to Purchasers a Compliance Certificate, executed by the CEO/President of the Company, dated the Closing Date, to the effect that the conditions specified in subsections (a), and (c) of this Section 5.1 have been satisfied.

 

(f) Secretary’s Certificate. Purchasers shall have received from the Company’s Secretary, a certificate having attached thereto (i) the Company’s Bylaws as in effect at the time of the Closing, (ii) resolutions approved by the Board of Directors of the Company (the “Board”) authorizing the transactions contemplated hereby, (iii) resolutions approved by the Company’s stockholders authorizing the filing of the Restated Charter and (iv) good standing certificates with respect to the Company from the applicable authorities in Nevada, dated a recent date before the Closing.

 

(g) Board of Directors. Upon the Closing, the authorized size of the Board shall be three (3) members and the Board shall consist of Tony O. Beaton, Roy Wayne Erwin and Michael A. Kramarz , with vacancies existing. The parties further agree to vote all of their shares for said Directors until at least three (3) years from the first closing and not to elect any additional directors without the unanimous approval of all Board of Directors.

 

(h) Legal Opinion. Purchasers shall have received from legal counsel to the Company an opinion addressed to it, dated as of the Closing Date, in a form acceptable to Purchasers.

 

(i) Indemnification Agreements. An indemnification agreement in a form acceptable to Purchasers shall have been executed and delivered by the parties thereto.

 

(j) Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing hereby and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to Purchasers, and Purchasers shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request.

 

(k) Officers to Purchase Series B Shares. The current officers of the Company, Roy Wayne Erwin and Michael A. Kramarz, are each allowed, within the next (1) year duration, to purchase up to 5,000 shares of Series B Preferred for $5,000. Roy Wayne Erwin will also have the option to exchange his Series D Convertible Preferred Stock shares for an additional 5,000 Series B Preferred.

 

5.2 Conditions to Obligations of the Company. The Company’s obligation to issue and sell the Shares at each Closing is subject to the satisfaction, on or prior to such Closing, of the following conditions:

 

(a) Representations and Warranties True. The representations and warranties in Section 4 made by those Purchasers acquiring Shares shall be true and correct in all material respects at the date of the Closing, with the same force and effect as if they had been made on and as of said date.

 

(b) Performance of Obligations. Such Purchasers shall have performed and complied with all agreements and conditions herein required to be performed or complied with by such Purchasers on or before the Closing.

 

 10. 
  

 

6. Miscellaneous.

 

6.1 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Louisiana and shall be binding upon the parties hereto in the United States and worldwide. Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any federal or state court within Rapides Parish, State of Louisiana in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein or any other matter relating to the equity interests of the Purchasers in the Company (whether based on breach of contract, tort, breach of duty or any other theory), agrees that process may be served upon it in any manner authorized by the laws of the State of Louisiana for such persons and waives and covenants not to assert or plead any objection that they might otherwise have to jurisdiction, venue and such process. Each party agrees not to commence any legal proceedings based upon or arising out of this Agreement or the matters contemplated herein or any other matter relating to the equity interests of the Purchasers in the Company (whether based on breach of contract, tort, breach of duty or any other theory) except in such courts.

 

6.2 Survival. The representations, warranties, covenants and agreements made herein shall survive the closing of the transactions contemplated hereby. All statements as to factual matters contained in any certificate or other instrument delivered by or on behalf of the Company pursuant hereto in connection with the transactions contemplated hereby shall be deemed to be representations and warranties by the Company hereunder solely as of the date of such certificate or instrument. The representations, warranties, covenants and obligations of the Company, and the rights and remedies that may be exercised by Purchasers, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, Purchasers or any of its representatives.

 

6.3 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon the parties hereto and their respective successors, assigns, heirs, executors and administrators and shall inure to the benefit of and be enforceable by each person who shall be a holder of the Shares from time to time; provided, however, that prior to the receipt by the Company of adequate written notice of the transfer of any Shares specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such Shares in its records as the absolute owner and holder of such Shares for all purposes.

 

6.4 Entire Agreement. This Agreement, the exhibits and schedules hereto, the Related Agreements and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable for or bound to any other in any manner by any oral or written representations, warranties, covenants and agreements except as specifically set forth herein and therein.

 

6.5 Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

 

6.6 Amendment and Waiver. This Agreement may be amended or modified, and the obligations of the Company and the rights of the holders of the Shares and the Conversion Shares under the Agreement may be waived, only upon the written consent of the Company and holders of a majority of the Shares purchased or agreed to be purchased pursuant to this Agreement (treated as if converted and including any Conversion Shares into which the then outstanding Shares have been converted that have not been sold to the public).

 

6.7 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or non-compliance by another party under this Agreement, the Related Agreements or the Restated Charter, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character on any party’s part of any breach, default or noncompliance under this Agreement, the Related Agreements or under the Restated Charter or any waiver on such party’s part of any provisions or conditions of the Agreement, the Related Agreements, or the Restated Charter must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, the Related Agreements, the Restated Charter, by law, or otherwise afforded to any party, shall be cumulative and not alternative.

 

 11. 
  

 

6.8 Waiver of Conflicts. Each party to this Agreement acknowledges that Frank Hariton, outside general counsel to the Company, has not in the past performed and is or may now or in the future represent one or more Purchaser’s or their affiliates in matters unrelated to the transactions contemplated by this Agreement (the “Financing”), including representation of such Purchasers or their affiliates in matters of a similar nature to the Financing. The applicable rules of professional conduct require that Company General Counsel inform the parties hereunder of this representation and obtain their prior consent. Frank Hariton has served as outside general counsel to the Company and has negotiated the terms of the Financing solely on behalf of the Company. The Company and each Purchaser hereby (a) acknowledge that they have had an opportunity to ask for and have obtained information relevant to such representation, including disclosure of the reasonably foreseeable adverse consequences of such representation; (b) acknowledge that with respect to the Financing, Frank Hariton has represented solely the Company, and not any Purchaser or any stockholder, director or employee of the Company or any Purchaser; and (c) gives its informed consent to Frank Hariton’s representation of the Company in the Financing.

 

6.9 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail, telex or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company at the address as set forth on the signature page hereof and to Purchaser at the address set forth on Exhibit A attached hereto or at such other address or electronic mail address as the Company or Purchaser may designate by 10 days’ advance written notice to the other parties hereto.

 

6.10 Expenses. Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of the Agreement; provided, however, that the Company shall, at the Closing, reimburse the reasonable legal fees and expenses of l counsel for Purchasers.

 

6.11 Costs and Attorneys’ Fees. In the event that any action, suit or other proceeding is instituted based upon or arising out of this Agreement or the matters contemplated herein or any other matter relating to the equity interests of the Purchasers in the Company (whether based on breach of contract, tort, breach of duty or any other theory), the prevailing party shall recover all of such party’s costs (including, but not limited to expert witness costs) and reasonable attorneys’ fees incurred in each such action, suit or other proceeding, including any and all appeals or petitions therefrom.

 

6.12 Titles and Subtitles. The titles of the sections and subsections of the Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

 

6.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

 

6.14 Broker’s Fees. Each party hereto represents and warrants that Tammy Wheeler was the agent, broker, investment banker, person or firm acting on behalf of both parties to this transactions hereto and is entitled to 1% Broker’s or finder’s fee or any other commission directly or indirectly in connection with the transactions contemplated herein, paid to Broker from proceeds at closing. Each party hereto further agrees to indemnify each other party for any claims, losses or expenses incurred by such other party as a result of the representation in this Section 6.14 being untrue.

 

6.15 Exculpation Among Purchasers. Purchaser acknowledges that it is not relying upon any person, firm, or corporation, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Purchaser agrees that no Purchaser nor the respective controlling persons, officers, directors, partners, agents, or employees of any Purchaser shall be liable to any other Purchaser for any action heretofore taken or omitted to be taken by any of them in connection with the purchase of the Shares and Conversion Shares.

 

6.16 Pronouns. All pronouns contained herein, and any variations thereof, shall be deemed to refer to the masculine, feminine or neutral, singular or plural, as to the identity of the parties hereto may require.

 

 12. 
  

 

In Witness Whereof, the parties hereto have executed the Series B Preferred Stock Purchase Agreement as of the date set forth in the first paragraph hereof.

 

COMPANY:   PURCHASER:
Oncologix Tech , Inc.   Diversified Innovative Marketing Enterprise Ltd.
         
      By:  
        Tony O. beaton
        its Chairman and CEO
         
By:     By:  
  Roy Wayne Erwin   Name: Tony O. Beaton
  Chairman and CEO   Title: Chairmen and CEO

 

Address: 1604 W. Pinhook Rd., #200
  Lafayette, LA 70508

 

Signature Page to
Series B Preferred Stock Purchase Agreement

 

 13. 
  

 

Exhibit A

 

schedule of purchaser

 

Name and Address  Shares   Aggregate
Purchase Price		 
         
Diversified Innovative Marketing Enterprise Ltd.
2550 Akers Mill Road
Atlanta, GA 30339
Attn: Tony O. Beaton
   53,000   $[10,000,000] 
           
Total:   53,000   $10,000,000 

 

 14.