once_ex101.htm


EXHIBIT 10.1


 


SHARE EXCHANGE AGREEMENT


 







by and among:


 







ISLET SCIENCES, INC.,


 


a Delaware corporation


 







ONE E-COMMERCE CORPORATION,


 


a Nevada corporation


 







DIAKINE THERAPEUTICS, INC.,


 


a Delaware corporation and


 







STOCKHOLDERS OF


DIAKINE THERAPEUTICS, INC.


 







_______________________________


 


Dated as of February 23, 2012


 


_______________________________


 


 




  





  











  






 



TABLE OF CONTENTS




 




	1   DESCRIPTION OF TRANSACTION	1
	 	 
	 	
1.1

	
THE SHARE EXCHANGE.

	1
	 	
1.2

	
CAPITALIZATION.

	1
	 	
1.3

	
CLOSING.

	2
	 	
1.4

	
TAX CONSEQUENCES.

	2
	 	 
	2   REPRESENTATIONS AND WARRANTIES OF DTI AND THE DTI STOCKHOLDERS	2
	 	 
	 	
2.1

	
DUE ORGANIZATION; SUBSIDIARIES; ETC.

	3
	 	
2.2

	
CERTIFICATE OF INCORPORATION AND BYLAWS; RECORDS.

	3
	 	
2.3

	
CAPITALIZATION, ETC.

	4
	 	
2.4

	
FINANCIAL STATEMENTS.

	4
	 	
2.5

	
ABSENCE OF CHANGES.

	5
	 	
2.6

	
TITLE TO ASSETS.

	7
	 	
2.7

	
BANK ACCOUNTS; RECEIVABLES.

	7
	 	
2.8

	
EQUIPMENT; LEASEHOLD.

	7
	 	
2.9

	
INTELLECTUAL PROPERTY.

	7
	 	
2.10

	
CONTRACTS.

	11
	 	
2.11

	
LIABILITIES.

	13
	 	
2.12

	
COMPLIANCE WITH LEGAL REQUIREMENTS.

	13
	 	
2.13

	
GOVERNMENTAL AUTHORIZATIONS.

	13
	 	
2.14

	
TAX MATTERS.

	14
	 	
2.15

	
EMPLOYEE AND LABOR MATTERS; BENEFIT PLANS.

	15
	 	
2.16

	
INSURANCE.

	16
	 	
2.17

	
RELATED PARTY TRANSACTIONS.

	16
	 	
2.18

	
LEGAL PROCEEDINGS; ORDERS.

	16
	 	
2.19

	
AUTHORITY; BINDING NATURE OF AGREEMENT.

	17





 




  





  











  








 



	 	
2.20

	
NON-CONTRAVENTION; CONSENTS.

	17
	 	
2.21

	
REGULATORY COMPLIANCE.

	17
	 	
2.22

	
DTI ACTION.

	18
	 	
2.23

	
ANTI-TAKEOVER LAW.

	18
	 	
2.24

	
NO FINANCIAL ADVISOR.

	18
	 	
2.25

	
CERTAIN PAYMENTS.

	18
	 	
2.26

	
CAPACITY OF THE DTI STOCKHOLDERS; AUTHORIZATION; EXECUTION OF AGREEMENTS.

	19
	 	
2.27

	
TITLE TO SHARES.

	19
	 	 
	3   REPRESENTATIONS AND WARRANTIES OF ONCE AND ISI	19
	 	 
	 	
3.1

	
DUE ORGANIZATION; SUBSIDIARIES; ETC.

	20
	 	
3.2

	
CERTIFICATE OF INCORPORATION AND BYLAWS; RECORDS.

	20
	 	
3.3

	
CAPITALIZATION.

	21
	 	
3.4

	
SEC FILINGS; FINANCIAL STATEMENTS.

	21
	 	
3.5

	
LIABILITIES.

	 22
	 	
3.6

	
LEGAL PROCEEDINGS; ORDERS.

	 22
	 	
3.7

	
NON-CONTRAVENTION; CONSENTS.

	 22
	 	
3.8

	
NO FINANCIAL ADVISOR.

	 23
	 	
3.9

	
AUTHORITY; BINDING NATURE OF AGREEMENT.

	 23
	 	
3.10

	
VALID ISSUANCE.

	 24
	 	 
	4   CERTAIN COVENANTS OF THE PARTIES	 24
	 	 
	 	
4.1

	
ACCESS AND INVESTIGATION.

	 24
	 	
4.2

	
OPERATION OF DTI'S BUSINESS.

	25
	 	
4.3

	
DISCLOSURE SCHEDULE UPDATES.

	25
	 	
4.4

	
NO SOLICITATION.

	26
	 	
4.5

	
ONCE SHARES.

	26





 




  





  











  






 



	5   ADDITIONAL AGREEMENTS OF THE PARTIES	27
	 	 
	 	
5.1

	
REGULATORY APPROVALS.

	27
	 	
5.2

	
INDEMNIFICATION OF OFFICERS AND DIRECTORS.

	27
	 	
5.3

	
ADDITIONAL AGREEMENTS.

	28
	 	
5.4

	
DISCLOSURE.

	28
	 	
5.5

	
OTC BULLETIN BOARD STATUS.

	29
	 	
5.6

	
DIRECTORS AND OFFICERS.

	29
	 	
5.7

	
LOCK-UP AGREEMENT.

	29
	 	
5.8

	
TAX MATTERS.

	29
	 	
5.9

	
LEGENDS.

	29
	 	 
	6   CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY	 30
	 	 
	 	
6.1

	
NO RESTRAINTS.

	 30
	 	
6.2

	
GOVERNMENTAL AUTHORIZATION.

	 30
	 	
6.3

	
ELIGIBILITY FOR QUOTATION.

	 30
	 	
6.4

	
FILING OF CERTIFICATE OF DESIGNATIONS.

	 30
	 	
6.5

	
CONSULTING AGREEMENTS.

	 30
	 	 
	7   ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF ONCE AND ISI	 30
	 	 
	 	
7.1

	
ACCURACY OF REPRESENTATIONS.

	 30
	 	
7.2

	
PERFORMANCE OF COVENANTS.

	 31
	 	
7.3

	
CONSENTS.

	 31
	 	
7.4

	
PAYMENT OF LIABILITIES.

	 31
	 	
7.5

	
AGREEMENTS AND OTHER DOCUMENTS.

	 31
	 	 
	8   ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF DTI.	 31
	 	 
	 	
8.1

	
ACCURACY OF REPRESENTATIONS.

	 32
	 	
8.2

	
PERFORMANCE OF COVENANTS.

	 32
	 	
8.3

	
CONSENTS.

	 32





 




  





  











  






 



	9   TERMINATION	 32
	 	 
	 	
9.1

	
TERMINATION.

	 32
	 	
9.2

	
EFFECT OF TERMINATION.

	 33
	 	
9.3

	
EXPENSES; TERMINATION FEES.

	 33
	 	 
	10   MISCELLANEOUS PROVISIONS	 33
	 	 
	 	
10.1

	
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES.

	 33
	 	
10.2

	
AMENDMENT.

	 33
	 	
10.3

	
WAIVER.

	 33
	 	
10.4

	
ENTIRE AGREEMENT; COUNTERPARTS; EXCHANGES BY FACSIMILE.

	 34
	 	
10.5

	
APPLICABLE LAW; JURISDICTION.

	 34
	 	
10.6

	
ATTORNEYS' FEES.

	 34
	 	
10.7

	
ASSIGNABILITY; NO THIRD PARTY BENEFICIARIES.

	 34
	 	
10.8

	
NOTICES.

	 34
	 	
10.9

	
COOPERATION.

	36
	 	
10.1

	
SEVERABILITY.

	36
	 	
10.11

	
OTHER REMEDIES; SPECIFIC PERFORMANCE.

	36
	 	
10.12

	
CONSTRUCTION.

	36













  





  











  








 


SHARE EXCHANGE AGREEMENT


 


THIS SHARE EXCHANGE AGREEMENT is made and entered into as of February 23, 2012, by and among ISLET SCIENCES, INC., a Delaware corporation ("ISI"); ONE E-COMMERCE CORPORATION, a Nevada corporation ("ONCE"); DIAKINE THERAPEUTICS, INC., a Delaware corporation ("DTI"); and the stockholders of DTI whose names are set forth on Exhibit B attached hereto (collectively, the “DTI Stockholders” and individually, a “DTI Stockholder”). Certain capitalized terms used in this Agreement are defined in Exhibit A.


 


RECITALS


 


A. The DTI Stockholders own 100% of the issued and outstanding shares of common stock, par value $0.001 per share, of DTI (the "DTI Shares")


 


B. ONCE and DTI intend to enter into a share exchange transaction pursuant to which the DTI Stockholders will exchange all of the DTI Shares for 200,000 shares of Series C Preferred Stock, par value $.001 per share of ONCE (the “ONCE Shares”), having the  rights,  preferences  and other  terms set forth in the certificate of designations substantially in the form attached hereto as Exhibit C (the “Certificate of Designations”) and DTI will become a wholly-owned subsidiary of ONCE (the "Share Exchange") in accordance with and subject to the terms of this Agreement. the NRS and the DGCL.


 


C. ONCE and DTI intend that the Share Exchange qualify as a tax-free reorganization within the meaning of Section 368 of the Code.


 


D. The board of directors of ONCE has approved this Agreement, the issuance of the ONCE Shares to the DTI Stockholders, pursuant to the terms of this Agreement, and the other actions contemplated by this Agreement.


 


E. The board of directors of DTI has approved this Agreement, the Share Exchange and the other Contemplated Transactions as required by the DGCL.


 


AGREEMENT


 


The Parties to this Agreement, intending to be legally bound, agree as follows:


 


1. DESCRIPTION OF TRANSACTION


 


1.1 The Share Exchange.  On the Closing Date (as hereinafter defined) and upon the terms and subject to the conditions set forth in this Agreement, the DTI Stockholders shall sell, assign, transfer, convey and deliver to ONCE 12,197,772 DTI Shares (representing 100% of the issued and outstanding ordinary shares of DTI), and ONCE shall accept such securities from the DTI Stockholders in exchange for the issuance to the DTI Stockholders of the number of ONCE Shares set forth opposite the names of the DTI Stockholders on Exhibit B hereto.


 


1.2 Capitalization.  On the Closing Date, immediately before the Share Exchange to be consummated pursuant to this Agreement, ONCE shall have authorized (a) 50,000,000 shares of Common Stock, par value $.001 per share, of which 18,317,200 shares shall be issued and outstanding, all of which will be duly authorized, validly issued and fully paid, and (b) 500,000 shares of preferred stock, par value $0.001 per share, of which there will be issued and outstanding (i) 1,173 shares of Series A Preferred Stock (“Series A Preferred”) automatically convertible into 1,173,000 shares of ONCE Common Stock immediately after the effectiveness of the Reverse Split, and (ii) 38,050.87 shares of Series B Preferred Stock (“Series B Preferred”) automatically convertible into 38,050,870 shares of ONCE Common Stock immediately after the effectiveness of the Reverse Split.


 




  





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1.3 Closing.  Unless this Agreement is earlier terminated pursuant to the provisions of Section 9.1 of this Agreement, and subject to the satisfaction or waiver of the conditions set forth in Sections 6, 7 and 8 of this Agreement, the consummation of the Share Exchange (the "Closing") shall take place at the offices of Guzov Ofsink, LLC, 900 Third Avenue, 5th Floor, New York, New York 10022, as promptly as practicable (but in no event later than the fifth Business Day) following the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 6, 7 and 8 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of each of such conditions) or at such other time, date and place as DTI and ONCE may mutually agree in writing.  The date on which the Closing actually takes place is referred to as the "Closing Date."  At the Closing, the DTI Stockholders shall deliver to ONCE the stock certificates representing the DTI Shares, duly endorsed in blank for transfer or accompanied by appropriate stock powers duly executed in blank.  In full consideration for the DTI Shares, at the Closing ONCE shall issue to the DTI Stockholders 200,000 ONCE Shares representing one (1) ONCE Share for each 60.98886 DTI Shares exchanged.


 


1.4 Tax Consequences.  For federal income tax purposes, the Share Exchange is intended to constitute a reorganization within the meaning of Section 368(a) of the Code. The Parties to this Agreement adopt this Agreement as a "plan of reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.


 


2. REPRESENTATIONS AND WARRANTIES OF DTI AND THE DTI STOCKHOLDERS


 


DTI represents and warrants to ONCE and ISI as follows, except as set forth in the written disclosure schedule delivered or made available by DTI and/or any of the DTI Stockholders to ONCE (the "DTI Disclosure Schedule").  Each of the DTI Stockholders, severally, but not jointly, joins in and makes on its own behalf, the representations and warranties set forth in Sections 2.1, 2.2 and 2.3, and only with respect to the DTI Shares owned by each such DTI Stockholder, Sections 2.26 and 2.27.  The DTI Disclosure Schedule shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Section 2.  The disclosure in any section or subsection of the DTI Disclosure Schedule shall qualify other sections and subsections in this Section 2 only to the extent it is readily apparent that the disclosure contained in such section or subsection of the DTI Disclosure Schedule contains enough information regarding the subject matter of the other representations in this Section 2 as to clearly qualify or otherwise clearly apply to such other representations and warranties.


 




  





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2.1 Due Organization; Subsidiaries; Etc.


 


(a) DTI is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all necessary power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all DTI Contracts.


 


(b) DTI has not conducted any business under or otherwise used, for any purpose or in any jurisdiction, any fictitious name, assumed name, trade name or other name, other than the name "DiaKine Therapeutics, Inc."


 


(c) DTI is not and has not been required to be qualified, authorized, registered or licensed to do business as a foreign corporation in any jurisdiction other than the jurisdictions identified in Part 2.1(c) of the DTI Disclosure Schedule, except where the failure to be so qualified, authorized, registered or licensed, individually or in the aggregate, has not had, and would not reasonably be expected to have, a DTI Material Adverse Effect. Other than as set forth in Part 2.1(c) of the DTI Disclosure Schedule, DTI is in good standing as a foreign corporation in each of the jurisdictions identified therein.


 


(d) Part 2.1(d) of the DTI Disclosure Schedule accurately sets forth (i) the names of the members of the board of directors of DTI, (ii) the names of the members of each committee of the board of directors of DTI and (iii) the names and titles of DTI's officers.


 


(e) DTI has no subsidiaries.


 


(f) DTI does not own any controlling interest in any Entity, and DTI has never owned, beneficially or otherwise, any shares or other securities of, or any direct or indirect equity or other financial interest in, any Entity. DTI has not agreed and is not obligated to make any future investment in or capital contribution to any Entity. Neither DTI nor DTI Parent has ever approved, or commenced any proceeding or made any election contemplating, the dissolution or liquidation of DTI's business or affairs.


 


2.2 Certificate of Incorporation and Bylaws; Records.  DTI has delivered or made available to ONCE accurate and complete copies of:  (a) the certificate of incorporation of DTI (as amended and restated, the "DTI Certificate of Incorporation") and bylaws of DTI, including all amendments; (b) the stock records of DTI; and (c) the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders of DTI, the board of directors of DTI and all committees of the board of directors of DTI (the items described in (a) and (b) above, collectively, the "DTI Constituent Documents"). There have been no formal meetings or actions taken by written consent or otherwise without a meeting of the stockholders of DTI, the board of directors of DTI or any committee of the board of directors of DTI that are not fully reflected in the minutes and other records delivered or made available to ONCE pursuant to clause (c) above.  There has not been any violation in any material respect of the DTI Constituent Documents.  DTI has not taken any action that is inconsistent in any material respect with the DTI Constituent Documents.  The books of account, stock records, minute books and other records of DTI are accurate, up to date and complete in all material respects, and have been maintained in accordance with prudent business practices.  DTI has in place, and has at all times had in place, an adequate and appropriate system of internal controls customarily maintained by comparable Entities.


 




  





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2.3 Capitalization, Etc.


 


(a) The authorized capital stock of DTI consists of 20,000,000 shares of DTI Common Stock, of which 12,261,772 shares are issued and outstanding.  All of the outstanding shares of DTI Common Stock have been duly authorized and validly issued, and are fully paid and non assessable.  All outstanding shares of DTI Common Stock have been issued and granted in compliance with (i) all applicable federal and state securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in DTI Constituent Documents and applicable Contracts.  DTI has no authorized shares other than as set forth in this Section 2.3(a) and there are no issued and outstanding shares of DTI's capital stock other than the shares of DTI Common Stock as set forth in this Section 2.3(a).


 


(b) Other than as set forth on Part 2.3(b) of the DTI Disclosure Schedule, there are no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of capital stock or other securities of DTI; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of capital stock or other securities of DTI; (iii) Contract under which DTI is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities of DTI; or (iv) condition or circumstance that would give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of DTI.  DTI has not issued any debt securities which grant the holder thereof any right to vote on, or veto, any actions by DTI.


 


(c) DTI has never repurchased, redeemed or otherwise reacquired any shares of capital stock or other securities of DTI.


 


2.4 Financial Statements.


 


(a) DTI has delivered or made available to ONCE the following financial statements and notes (collectively, the "DTI Financial Statements").


 


(i) the compiled balance sheets of DTI as of December 31, 2010 and 2011 (the December 31, 2011 balance sheet being referred to herein as the "DTI Compiled Balance Sheet") and the related statements of operations, statements of stockholders' equity and statements of cash flows of DTI for the two years ended December 31, 2010 and 2011, together with the notes thereto.


 


(b) The DTI Financial Statements are consistent with the books and records, are accurate and complete in all material respects and present fairly the financial position of DTI as of the respective dates thereof and the results of operations and consolidated cash flows of DTI for the periods covered thereby.  Except as may be indicated in the notes to the DTI Compiled Balance Sheet, the DTI Compiled Balance Sheet has been prepared in accordance with the U.S. generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods covered.


 




  





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2.5 Absence of Changes.  Since the date of the DTI Compiled Balance Sheet and except as set forth in Part 2.5 of the DTI Disclosure Schedule:


 


(a) there has not been any DTI Material Adverse Effect, and no event has occurred that will, or would reasonably be expected to, cause a DTI Material Adverse Effect;


 


(b) there has not been any material loss, damage or destruction to, or any material interruption in the use of, any of the assets of DTI (whether or not covered by insurance);


 


(c) DTI has not declared, accrued, set aside or paid any dividend or made any other distribution in respect of any shares of its capital stock, and has not repurchased, redeemed or otherwise reacquired any shares of its capital stock or other securities;


 


(d) DTI has not sold, issued, granted or authorized the issuance of (i) any capital stock or other securities; (ii) any option, call or right to acquire any capital stock or any other security of DTI; or (iii) any instrument convertible into or exchangeable for any capital stock or other security of DTI;


 


(e) there has been no amendment to the certificate of incorporation or bylaws of DTI and DTI has not effected or been a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;


 


(f) DTI has not formed any Subsidiary or acquired any equity interest or other interest in any other Entity;


 


(g) DTI has not made any capital expenditure which, when added to all other capital expenditures made on behalf of DTI since the date of the DTI Balance Sheet, exceeds $50,000 in the aggregate;


 


(h) DTI has not (i) entered into or permitted any of the assets owned or used by it to become bound by any Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $50,000 in the aggregate, or (B) the purchase or sale of any product, or performance of services by or to DTI having a value in excess of $50,000 in the aggregate, or (ii) waived any right or remedy under any Contract other than in the Ordinary Course of Business, or amended or prematurely terminated any Contract;


 


(i) DTI has not (i) acquired, leased or licensed any right or other asset from any other Person, (ii) sold or otherwise disposed of, or leased or licensed, any right or other asset to any other Person, or (iii) waived or relinquished any right, except for immaterial rights or immaterial assets acquired, leased, licensed or disposed of in the Ordinary Course of Business;


 




  





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(j) DTI has not written off as uncollectible, or established any extraordinary reserve with respect to, any account receivable or other indebtedness;


 


(k) DTI has not made any pledge of any of its assets or otherwise permitted any of its assets to become subject to any Encumbrance, except for pledges of immaterial assets made in the Ordinary Course of Business;


 


(l) DTI has not (i) lent money to any Person (other than pursuant to routine travel advances made to employees in the Ordinary Course of Business) or (ii) incurred or guaranteed any indebtedness for borrowed money in the aggregate in excess of $50,000 or (iii) issued or sold any debt securities, or options, warrants, calls or similar rights to acquire any debt securities, of DTI;


 


(m) DTI has not (i) established or adopted any employee benefit plan, (ii) paid any bonus or made any profit sharing, incentive compensation or similar payment to, or increased the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees with an annual salary in excess of $50,000, or (iii) hired any new employee having an annual salary in excess of $50,000;


 


(n) DTI has not changed any of its personnel policies or other business policies, or any of its methods of accounting or accounting practices in any respect;


 


(o) DTI has not made any Tax election;


 


(p) DTI has not threatened, commenced or settled any Legal Proceeding;


 


(q) DTI has not entered into any transaction or taken any other action outside the Ordinary Course of Business, other than entering into this Agreement and the Contemplated Transactions;


 


(r) DTI has not paid, discharged or satisfied any claim, liability or obligation (absolute, accrued, asserted or unassorted, contingent or otherwise) other than the payment, discharge or satisfaction of non-material amounts in the Ordinary Course of Business or as required by any DTI Contract or Legal Requirement; and


 


(s) DTI has not agreed to take, or committed to take, any of the actions referred to in clauses "(c)" through "(r)" above, except in connection with the DTI Disclosed Transactions.


 




  





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2.6 Title to Assets.  DTI owns, and has good, valid and marketable title to, all assets (tangible and intangible) purported to be owned by it.  All of such assets are owned by DTI free and clear of any Encumbrances, except for (x) any lien set forth in Part 2.6 of the DTI Disclosure Schedule, (y) any lien for current Taxes not yet due and payable, and (z) minor liens securing an obligation, in the aggregate, of less than $50,000 that have arisen in the Ordinary Course of Business and that do not (individually or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of DTI.


 


2.7 Bank Accounts; Receivables.


 


(a) As of the date hereof, other than its Bank of America Account (Acct. Number 004125062152) DTI has no bank accounts.


 


(b) As of the date hereof, DTI has no accounts receivable.


 


2.8 Equipment; Leasehold.


 


(a) DTI neither owns nor leases any tangible assets or personal property.


 


(b) DTI does not own and does not lease any real property or any interest in real property.


 


2.9 Intellectual Property.


 


(a) Part 2.9(a) of the DTI Disclosure Schedule accurately identifies and describes each proprietary product or service that has been developed or has been commercially sold by DTI within the last five (5) years and any product or service that is currently under development or that is currently commercially sold by DTI.


 


(b) Part 2.9(b) of the DTI Disclosure Schedule accurately identifies (i) each item of DTI IP Rights in which DTI has or purports to have an ownership interest of any nature (whether exclusively, jointly with another Person, or otherwise); (ii) the jurisdiction in which such item of DTI IP Rights has been registered or filed (if applicable) and the applicable registration or serial number; (iii) any other Person that, to the Knowledge of DTI, may have an ownership interest in such item of DTI IP Rights and the nature of such ownership interest; and (iv) each product or service identified in Part 2.9(a) of the DTI Disclosure Schedule that embodies, utilizes, or is based upon or derived from (or, with respect to products and services under development, that is expected to embody, utilize, or be based upon or derived from) such item of DTI IP Rights.  DTI has delivered or made available to ONCE complete and accurate copies of all applications, correspondence, and other material documents related to each item of DTI Registered IP.


 




  





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(c) Part 2.9(c) of the DTI Disclosure Schedule accurately identifies (i) all DTI IP Rights licensed to DTI (other than any non-customized software that (A) is so licensed solely in executable or object code form pursuant to a non-exclusive, internal use software license and (B) is not incorporated into, or used directly in the development, manufacturing, or distribution of, any products or services of DTI); (ii) the corresponding DTI Contracts pursuant to which such DTI IP Rights are licensed to DTI; and (iii) whether the license or licenses granted to DTI are exclusive or non-exclusive.


 


(d) Part 2.9(d) of the DTI Disclosure Schedule accurately identifies each DTI Contract pursuant to which any Person has been granted any license under, or otherwise has received or acquired any right (whether or not currently exercisable) or interest in, any DTI IP Rights.  DTI is not bound by, and no DTI IP Rights are subject to, any Contract containing any covenant or other provision that in any way limits or restricts the ability of DTI to use, exploit, assert, or enforce any DTI IP Rights anywhere in the world.


 


(e) DTI has delivered or made available to ONCE and ISI a complete and accurate copy of each standard form of DTI IP Rights Agreement used by DTI, including each standard form of (i) license agreement; (ii) employee agreement containing intellectual property assignment or license of DTI IP Rights or any confidentiality provision; (iii) consulting or independent contractor agreement containing intellectual property assignment or license of DTI IP Rights or any confidentiality provision; and (iv) confidentiality or nondisclosure agreement. Part 2.9(e) of the DTI Disclosure Schedule accurately identifies each DTI IP Rights Agreement that deviates in any material respect from the corresponding standard form agreement delivered or made available to ONCE.


 


(f) DTI exclusively owns all right, title, and interest to and in DTI IP Rights (other than DTI IP Rights exclusively licensed to DTI, as identified in Part 2.9(c) of the DTI Disclosure Schedule) free and clear of any Encumbrances (other than non-exclusive licenses granted pursuant to the DTI Contracts listed in Part 2.9(d) of the DTI Disclosure Schedule).  Without limiting the generality of the foregoing:


 


(i) To the Knowledge of DTI, all documents and instruments necessary to register or apply for or renew registration of DTI Registered IP have been validly executed, delivered, and filed in a timely manner with the appropriate Governmental Body.


 


(ii) Each Person who is or was an employee or contractor of DTI and who is or was involved in the creation or development of any DTI IP Rights has signed a valid, enforceable agreement containing an assignment of Intellectual Property to DTI, and confidentiality provisions protecting trade secrets and confidential information of DTI. No current or former stockholder, officer, director, or employee of DTI has any claim, right (whether or not currently exercisable), or interest to or in any DTI IP Rights.  No employee of DTI is (a) bound by or otherwise subject to any Contract restricting him or her from performing his or her duties for DTI, or (b) in breach of any Contract with any former employer or other Person concerning DTI IP Rights or confidentiality provisions protecting trade secrets and confidential information in DTI IP Rights.


 


(iii) No funding, facilities, or personnel of any Governmental Body were used, directly or indirectly, to develop or create, in whole or in part, any DTI IP Rights in which DTI has an ownership interest.


 


(iv) DTI has taken all reasonable steps to maintain the confidentiality of and otherwise protect and enforce its rights in all proprietary information that it holds, or purports to hold, as a trade secret.


 


(v) DTI has not assigned or otherwise transferred ownership of, or agreed to assign or otherwise transfer ownership of, any DTI IP Rights to any other Person.


 




  





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(vi) DTI is not now nor has it ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could require or obligate DTI to grant or offer to any other Person any license or right to any DTI IP Rights.


 


(vii) The DTI IP Rights constitute all Intellectual Property necessary for DTI to conduct their respective businesses as currently conducted and planned to be conducted.


 


(g) To DTI's Knowledge, all DTI Registered IP is valid and enforceable.  Without limiting the generality of the foregoing:


 


(i) Each U.S. patent application and U.S. patent in which DTI has or purports to have an ownership interest was filed within one year of the first printed publication, public use, or offer for sale of each invention described in the U.S. patent application or U.S. patent.  Each foreign patent application and foreign patent in which DTI has or purports to have an ownership interest was filed or claims priority to a patent application filed prior to each invention described in the foreign patent application or foreign patent being first made available to the public.


 


(ii) No trademark (whether registered or unregistered) or trade name owned, used, or applied for by DTI conflicts or interferes with any trademark (whether registered or unregistered) or trade name owned, used, or applied for by any other Person.  None of the goodwill associated with or inherent in any trademark (whether registered or unregistered) in which DTI has or purports to have an ownership interest has been impaired.


 


(iii) Each item of DTI IP Rights that is DTI Registered IP is and at all times has been filed and maintained in compliance with all applicable Legal Requirements and all filings, payments, and other actions required to be made or taken to maintain such item of DTI Registered IP in full force and effect have been made by the applicable deadline.  Part 2.9(g)(iii) of the DTI Disclosure Schedule accurately identifies and describes each action, filing, and payment that must, to DTI's Knowledge, be taken or made on or before the date that is 90 days after the Closing Date in order to maintain such item of DTI Registered IP in full force and effect.


 


(iv) No interference, opposition, reissue, reexamination, or other proceeding is pending or, to DTI's Knowledge, threatened, in which the scope, validity, or enforceability of any DTI IP Rights is being, has been, or could reasonably be expected to be contested or challenged.  To DTI's Knowledge, there is no basis for a claim that any DTI IP Rights are invalid or, excluding pending patent applications, unenforceable.


 


(h) To DTI's Knowledge, no Person has infringed, misappropriated, or otherwise violated, and no Person is currently infringing, misappropriating, or otherwise violating, any DTI IP Rights.  Part 2.9(h) of the DTI Disclosure Schedule accurately identifies, and DTI has delivered or made available to ONCE a complete and accurate copy of, each letter or other written or electronic communication or correspondence that has been sent or otherwise delivered in the last five (5) years by or to DTI or any director or officer or, to the Knowledge of DTI, employee of DTI regarding any actual, alleged, or suspected infringement or misappropriation of any DTI IP Rights, and provides a brief description of the current status of the matter referred to in such letter, communication, or correspondence.


 




  





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(i) Neither the execution, delivery, or performance of this Agreement (or any of the agreements contemplated by this Agreement) nor the consummation of any of the Contemplated Transactions will, with or without notice or lapse of time, result in, or give any other Person the right or option to cause or declare, (a) a loss of, or Encumbrance on, any DTI IP Rights; (b) a breach by DTI of any license agreement listed or required to be listed in Part 2.9(c) of the DTI Disclosure Schedule; (c) the release, disclosure, or delivery of any DTI IP Rights by or to any escrow agent or other Person; or (d) the grant, assignment, or transfer to any other Person of any license or other right or interest under, to, or in any of DTI IP Rights.


 


(j) To DTI's Knowledge, DTI has never infringed (directly, contributorily, by inducement, or otherwise), misappropriated, or otherwise violated any Intellectual Property rights of any other Person.  Without limiting the generality of the foregoing:


 


(i) No product or service that has been developed or that is being commercially sold by DTI, nor the performance of making, using, selling or offering for sale or importation of any such product or service, has, to the Knowledge of DTI, infringed, misappropriated, or otherwise violated the Intellectual Property rights of any other Person.


 


(ii) No infringement, misappropriation, or similar claim or Legal Proceeding is pending or, to the DTI's Knowledge, threatened against DTI or against any other Person who may be entitled to be indemnified, defended, held harmless, or reimbursed by DTI with respect to such claim or Legal Proceeding.  DTI has never received any notice or other communication (in writing or otherwise) alleging any actual, alleged, or suspected infringement, misappropriation, or violation of any Intellectual Property rights of another Person.


 


(iii) DTI is not bound by any Contract to indemnify, defend, hold harmless, or reimburse any other Person with respect to any Intellectual Property infringement, misappropriation, or similar claim.  DTI has never assumed, or agreed to discharge or otherwise take responsibility for, any existing or potential liability of another Person for infringement, misappropriation, or violation of any Intellectual Property right.


 


(k) No claim or Legal Proceeding involving any DTI IP Rights is pending or, to DTI's Knowledge, has been threatened, except for any such claim or Legal Proceeding that, if adversely determined, would not adversely affect (i) the use or exploitation of DTI IP Rights by DTI, or (ii) the manufacturing, distribution, or sale of any product or service being developed by DTI, or that is being commercially sold by DTI.


 




  





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2.10 Contracts.


 


(a) Part 2.10(a) of the DTI Disclosure Schedule identifies each DTI Contract, including:


 


(i) each DTI Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor;


 


(ii) each DTI Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Intellectual Property or DTI IP Rights;


 


(iii) each DTI Contract imposing any restriction on the right or ability of DTI (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to, or perform any services for, any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;


 


(iv) each DTI Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;


 


(v) each DTI Contract relating to the creation of any Encumbrance with respect to any asset of DTI;


 


(vi) each DTI Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;


 


(vii) each DTI Contract creating or relating to any collaboration or joint venture or any sharing of technology, revenues, profits, losses, costs or liabilities, including DTI Contracts involving investments by DTI in, or loans by DTI to, any other Entity;


 


(viii) each DTI Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, or otherwise involving as a counterparty, any DTI Related Party;


 


(ix) each DTI Contract relating to indebtedness for borrowed money;


 


(x) each DTI Contract related to the acquisition or disposition of material assets of DTI or any other Person;


 


(xi) any other material DTI Contract that has a term of more than 60 days and that may not be terminated by DTI, as applicable (without penalty), within 60 days after the delivery of a termination notice by DTI, as applicable;


 




  





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(xii) any other DTI Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $50,000 in the aggregate, or (B) the purchase or sale of any product, or performance of services by or to DTI having a value in excess of $50,000 in the aggregate;


 


(xiii) each DTI Contract constituting a commitment of any Person to purchase products (including products in development) of DTI;


 


(xiv) each DTI Contract between DTI and any DTI Affiliate;


 


(xv) each DTI Contract granting a first refusal, first offer or similar preferential right to purchase or acquire any DTI capital stock or assets;


 


(xvi) each DTI Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to DTI in connection with the Contemplated Transactions;


 


(xvii) other material DTI Contracts, plans or arrangement which are not described in clauses (i) through (xvi) above.


 


(b) DTI has delivered or made available to ONCE accurate and complete (except for applicable redactions thereto) copies of all material written DTI Contracts, including all amendments thereto.  There are no DTI Contracts that are not in written form.  Each DTI Contract is valid and in full force and effect, is enforceable by DTI in accordance with its terms, and after the Closing will continue to be legal, valid, binding and enforceable on identical terms. The consummation of the Contemplated Transactions shall not (either alone or upon the occurrence of additional acts or events) result in any payment or payments becoming due from DTI or ONCE to any Person under any DTI Contract or give any Person the right to terminate or alter the provisions of any DTI Contract.


 


(c) DTI has not materially violated or breached, or committed any material default under, any DTI Contract to which it is a party, and, to the Knowledge of DTI, no other Person has violated or breached, or committed any default under, any DTI Contract.


 


(d) No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (i) result in a material violation or breach of any of the provisions of any DTI Contract, (ii) give any Person the right to declare a default or exercise any remedy under any DTI Contract, (iii) give any Person the right to accelerate the maturity or performance of any DTI Contract, or (iv) give any Person the right to cancel, terminate or modify any DTI Contract.


 


(e) DTI has not received any written notice regarding any actual or possible violation or breach of, or default under, any DTI Contract.


 


(f) DTI has not waived any rights under any DTI Contract.


 




  





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(g) No Person is renegotiating, or has a right pursuant to the terms of any DTI Contract to renegotiate, any amount paid or payable to DTI under any DTI Contract or any other material term or provision of any DTI Contract.


 


(h) The DTI Contracts collectively constitute all of the Contracts necessary to enable DTI to conduct its business in the manner in which its business is currently being conducted and as its business is proposed to be conducted.


 


(i) Part 2.10(i) of the DTI Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by DTI (other than term sheets provided by DTI or to DTI by any party related to the subject matter of this transaction).


 


(j) Part 2.10(j) of the DTI Disclosure Schedule provides an accurate and complete list of all Consents required under any DTI Contract to consummate the Share Exchange and the other Contemplated Transactions as well as a list of clauses in such Contract that would be triggered by the Agreement, the Share Exchange or the Contemplated Transactions.


 


2.11 Liabilities.  DTI does not have any accrued, contingent or other liabilities of any nature, either matured or unmatured (whether or not required to be reflected in financial statements in accordance with GAAP, and whether due or to become due), except for: (i) liabilities identified as such in the "liabilities" column of the DTI Compiled Balance Sheet; (ii) accounts payable or accrued salaries that have been incurred by DTI in the Ordinary Course of Business; (iii) liabilities under DTI Contracts listed in Part 2.11 of the DTI Disclosure Schedule, to the extent the nature and magnitude of such liabilities can be specifically ascertained by reference to the text of such DTI Contracts; (iv) liabilities that have arisen since the date of the DTI Compiled Balance Sheet in the Ordinary Course of Business which do not exceed $50,000 in the aggregate and (v) contractual and other liabilities incurred in the Ordinary Course of Business which are not required by GAAP to be reflected on a balance sheet and which are reflected in Part 2.11 of the DTI Disclosure Schedule.


 


2.12 Compliance with Legal Requirements. DTI is, and has at all times been, in compliance in all material respects with all applicable Legal Requirements, except where the failure to be so in compliance has not had, and would not reasonably be expected to have, a DTI Material Adverse Effect.  DTI has not received, since January 1, 2011, any written notice or other communication from any Governmental Body or any other Person regarding (a) any actual, alleged or potential violation of, or failure to comply with, any Legal Requirement, or (b) any actual, alleged or potential obligation on the part of DTI to undertake, or to bear all or any portion of the cost of, any cleanup or any remedial, corrective or response action of any nature. To the Knowledge of DTI, no Governmental Body has proposed or is considering any Legal Requirement that, if adopted or otherwise put into effect, (a) will, or would reasonably be expected to, cause a DTI Material Adverse Effect, (b) may have an adverse effect on DTI's ability to comply with or perform any covenant or obligation under this Agreement or any of the Related Agreements, or (c) may have the effect of preventing, delaying, making illegal or otherwise interfering with the Share Exchange or any of the Contemplated Transactions.


 


2.13 Governmental Authorizations.  Part 2.13 of the DTI Disclosure Schedule identifies each Governmental Authorization held by DTI, and DTI has delivered or made available to ONCE and ISI accurate and complete copies of all Governmental Authorizations identified in Part 2.13 of the DTI Disclosure Schedule.  The Governmental Authorizations identified in Part 2.13 of the DTI Disclosure Schedule are valid and in full force and effect, and collectively constitute all Governmental Authorizations necessary to enable DTI to conduct its business in the manner in which its business is currently being conducted and is proposed to be conducted.  DTI is in compliance in all material respects with the terms and requirements of the respective Governmental Authorizations identified in Part 2.13 of the DTI Disclosure Schedule or required to be so identified.  DTI has not since January 1, 2011 received any notice or other communication from any Governmental Body regarding (a) any actual or possible violation of or failure to comply with any term or requirement of any Governmental Authorization, or (b) any actual or possible revocation, withdrawal, suspension, cancellation, termination or modification of any Governmental Authorization.


 




  





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2.14 Tax Matters.


 


(a) Except as set forth on Part 2.14 of the DTI Disclosure Schedule, all Tax Returns required to be filed by or on behalf of DTI with any Governmental Body with respect to any taxable period ending on or before the Closing Date (the "DTI Returns") (i) have been or will be filed on or before the applicable due date (including any extensions of such due date), and (ii) have been, or will be when filed, accurately and completely prepared in all material respects.  All Taxes shown on the DTI Returns due on or before the Closing Date have been or will be paid on or before the Closing Date. DTI has delivered or made available to ONCE and ISI accurate and complete copies of all DTI Returns filed which have been requested by ONCE and ISI.  DTI shall establish in its books and records, in the Ordinary Course of Business, reserves adequate for the payment of all unpaid Taxes by DTI for the period from January 1, 2011 through the Closing Date.


 


(b) The DTI Compiled Balance Sheet fully accrued all liabilities for unpaid Taxes with respect to all periods through the date thereof in accordance with GAAP.  The DTI Compiled Balance Sheet makes no accrual for unpaid Taxes as DTI has no accrued but unpaid income tax liability.


 


(c) No DTI Return has ever been examined or audited by any Governmental Body and no examination or audit of any DTI Return is currently in progress or, to the Knowledge of DTI, threatened or contemplated.  DTI has delivered or made available to ONCE and ISI accurate and complete copies of all audit reports, private letter rulings, revenue agent reports, information document requests, notices of proposed deficiencies, deficiency notices, protests, petitions, closing agreements, settlement agreements, pending ruling requests and any similar documents submitted by, received by, or agreed to by or on behalf of DTI relating to DTI Returns.  No extension or waiver of the limitation period applicable to any of DTI Returns has been granted (by DTI or any other Person), and no such extension or waiver has been requested from DTI.  All Taxes that DTI was required by law to withhold or collect have been duly withheld or collected and, to the extent required, have been properly paid to the appropriate Governmental Body.  DTI has not executed or filed any power of attorney with any taxing authority.


 


(d) DTI (i) has never been a member of an affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was DTI), (ii) does not have any liability for the Taxes of any person under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign law), as a transferee or successor, or otherwise, and (iii) has never been a party to any joint venture, collaboration, partnership or other agreement that could be treated as a partnership for Tax purposes.  DTI has not, is not nor has it ever been, a party to or bound by any tax indemnity agreement, tax-sharing agreement, tax allocation agreement or similar Contract. DTI has not been either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (y) in the two years prior to the date of this Agreement or (z) which could otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Share Exchange.


 


(e) No claim or Legal Proceeding is pending or has been threatened against or with respect to DTI in respect of any Tax.  There are no unsatisfied liabilities for Taxes with respect to any notice of deficiency or similar document received by DTI with respect to any Tax (other than liabilities for Taxes asserted under any such notice of deficiency or similar document which are being contested in good faith by DTI and with respect to which adequate reserves for payment have been established).  There are no liens for Taxes upon any of the assets of DTI except liens for current Taxes not yet due and payable.  DTI has not entered into or become bound by any agreement or consent pursuant to Section 341(f) of the Code. DTI has not been, nor will be, required to include any adjustment in taxable income for any tax period (or portion thereof) pursuant to Section 481 or 263 A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions or events occurring, or accounting methods employed, prior to the Closing Date.


 




  





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(f) None of the assets of DTI (i) is property that is required to be treated as being owned by any other Person pursuant to the provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, (ii) is "tax-exempt use property" within the meaning of Section 168(h) of the Code, (iii) directly or indirectly secures any debt the interest on which is tax exempt under Section 103(a) of the Code, or (iv) is subject to a lease under Section 770 l(h) of the Code or under any predecessor section.


 


(g) DTI will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date as a result of any (i) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax law) executed on or prior to the Closing Date, (ii) installment sale or other open transaction disposition made on or prior to the Closing Date, or (iii) prepaid amount received on or prior to the Closing Date.


 


(h) DTI has not engaged in any "listed transaction" for purposes of Treasury Regulation sections 1.6011-4(b)(2) or 301.611 l-2(b)(2) or any analogous provision of state or local law.


 


2.15 Employee and Labor Matters; Benefit Plans.


 


(a) DTI has no employees other than Mary Ann Latona Nadler.


 


(b) Part 2.15(b) of the DTI Disclosure Schedule accurately identifies each former employee of DTI who is receiving or is scheduled to receive (or whose spouse or other dependent is receiving or is scheduled to receive) any benefits (from DTI) relating to such former employee's employment with DTI, as applicable; and Part 2.15(b) of the DTI Disclosure Schedule accurately describes such benefits.


 


(c) DTI is not a party to or bound by, and has never been a party to or bound by any union contract, collective bargaining agreement or similar Contract.


 


(d) Except for Jerry L. Nadler, since January 1, 2011, there have not been any independent contractors who have provided services to DTI for a period of six consecutive months or longer.  DTI has never had any temporary or leased employees.


 


(e) DTI: (i) is, and at all times has been, in substantial compliance with all applicable Legal Requirements respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to their employees, including the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of HIPAA and any similar provisions of state law; (ii) have withheld and reported all amounts required by applicable Legal Requirements or by Contract to be withheld and reported with respect to wages, salaries and other payments to its employees; (iii) is not liable for any arrears of wages or any taxes or any penalty for failure to comply with the Legal Requirements applicable to the foregoing; and (iv) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect to unemployment compensation benefits, social security or other benefits or obligations for their employees (other than routine payments to be made in the normal course of business and consistent with past practice).  There are no pending or, to the Knowledge of DTI, threatened or reasonably anticipated claims or Legal Proceedings against DTI under any worker's compensation policy or long-term disability policy.


 




  





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(f) To the Knowledge of DTI, no officer or employee of DTI is subject to any injunction, writ, judgment, decree, or order of any court or other Governmental Body that would interfere with such employee's efforts to promote the interests of DTI, or that would interfere with the business of DTI.  Neither the execution nor the delivery of this Agreement, nor the carrying on of the business of DTI as presently conducted nor any activity of any employees of DTI in connection with the carrying on of the business of DTI as presently conducted will, to the Knowledge of DTI, conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default under, any Contract under which any employee of DTI may be bound.


 


2.16 Insurance.  DTI currently has no insurance policies in force or in effect.  Except as set forth on Part 2.16 of the DTI Disclosure Schedule, since January 1, 2009, DTI has not received any written notice or other communication regarding any actual or possible (a) cancellation or invalidation of any insurance policy, (b) refusal of any coverage or rejection of any claim under any insurance policy, or (c) material adjustment in the amount of the premiums payable with respect to any insurance policy.


 


2.17 Related Party Transactions.  Other than as set forth on Part 2.17 of DTI Disclosure Schedule, (a) no DTI Related Party has, and no DTI Related Party has at any time since DTI's inception had, any direct or indirect interest in any material asset used in or otherwise relating to the business of DTI; (b) no DTI Related Party is, or has been, indebted to DTI; (c) since DTI's inception, no DTI Related Party has entered into, or has had any direct or indirect financial interest in, any DTI Contract, transaction or business dealing involving DTI; (d) no DTI Related Party is competing, or has at any time competed, directly or indirectly, with DTI; and (e) no DTI Related Party has any claim or right against DTI (other than rights under capital stock of DTI and rights to receive compensation for services performed as an employee of DTI).


 


2.18 Legal Proceedings; Orders.


 


(a) There is no pending Legal Proceeding, and to the Knowledge of DTI, no Person has threatened to commence any Legal Proceeding:  (i) that involves DTI or any of the assets owned, used or controlled by DTI or any Person whose liability DTI has or may have retained or assumed, either contractually or by operation of law claiming damages in an amount in excess of $50,000; or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Share Exchange or any of the other Contemplated Transactions.  To the Knowledge of DTI, no event has occurred, and no claim, dispute or other condition or circumstance exists, that will, or that would reasonable be expected to, give rise to or serve as a basis for the commencement of any such Legal Proceeding.


 


(b) There is no order, writ, injunction, judgment or decree to which DTI or any of the assets owned or used by DTI is subject.  To the Knowledge of the DTI, none of its Related Parties is subject to any order, writ, injunction, judgment or decree that relates to the businesses of, or to any assets owned or used by DTI.


 




  





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2.19 Authority; Binding Nature of Agreement. DTI has the absolute and unrestricted right, power and authority to enter into and to perform its obligations under this Agreement and the Related Agreements to which it is a party; and the execution, delivery and performance by DTI of this Agreement and the Related Agreements to which it is a party have been duly authorized by all necessary action on the part of DTI and the board of directors of DTI.  This Agreement and each of the Related Agreements to which DTI is a party has been duly executed and delivered by DTI, and assuming due authorization, execution and delivery by the other Parties thereto, constitutes the legal, valid and binding obligation of DTI, enforceable against DTI in accordance with its terms, subject to (a) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (b) rules of law governing specific performance, injunctive relief and other equitable remedies.


 


2.20 Non-Contravention; Consents. Neither (a) the execution, delivery or performance of this Agreement or any of the Related Agreements, nor (b) the consummation of the Share Exchange or any of the other Contemplated Transactions, will directly or indirectly (with or without notice or lapse of time):


 


(a) contravene, conflict with or result in a violation of any of the provisions of DTI Constituent Documents;


 


(b) contravene, conflict with or result in a violation of, or give any Governmental Body or other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any order, writ, injunction, judgment or decree to which DTI, or any of the assets owned or used by DTI, is subject;


 


(c) contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by DTI or that otherwise relates to the businesses of, or to any of the assets owned or used by, DTI;


 


(d) result in a material conflict, violation or breach of, or result in a material default under, any provision of any DTI Contract, or give any Person the right to (i) declare a default or exercise any remedy under any such DTI Contract, (ii) accelerate the maturity or performance of any such DTI Contract, or (iii) cancel, terminate or modify any such DTI Contract; or


 


(e) result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by DTI (except for minor liens that will not, in any case or in the aggregate, materially detract from the value of the assets subject thereto or materially impair the operations of DTI).


 


Except for those filings, notices or Consents disclosed in Part 2.20 of the DTI Disclosure Schedule, no filing with, notice to or Consent from any Person is required in connection with (y) the execution, delivery or performance of this Agreement or any of the Related Agreements, or (z) the consummation of the Share Exchange or any of the other Contemplated Transactions.


 


2.21 Regulatory Compliance. All DTI Products that are subject to the jurisdiction of any Governmental Body are being manufactured, labeled, stored, tested, developed, distributed, and marketed in compliance in all material respects with all applicable Legal Requirements.


 




  





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2.22 DTI Action. The board of directors of DTI (at a meeting duly called and held in accordance with the DTI Constituent Documents) has (a) unanimously determined that the Share Exchange is advisable and in the best interests of DTI and (b) unanimously approved this Agreement.


 


2.23 Anti-Takeover Law. The board of directors of DTI has taken all action necessary or required to render inapplicable to the Share Exchange, this Agreement or any agreement contemplated hereby and the Contemplated Transactions (a) any takeover provision in the DTI Constituent Documents, (b) any takeover provision in any DTI Contract, and (c) any takeover provision in any applicable state law.


 


2.24 No Financial Advisor. No broker, finder or investment banker is entitled to any brokerage fee, finder's fee, opinion fee, success fee, transaction fee or other fee or commission in connection with the Share Exchange or any of the other Contemplated Transactions based upon arrangements made by or on behalf of DTI or the DTI Stockholders.


 


2.25 Certain Payments. Neither DTI nor to DTI's Knowledge any officer, employee, agent or other Person associated with or acting for or on behalf of DTI, has at any time, directly or indirectly:


 


(a) used any corporate funds (i) to make any unlawful political contribution or gift or for any other unlawful purpose relating to any political activity, (ii) to make any unlawful payment to any governmental official or employee, or (iii) to establish or maintain any unlawful or unrecorded fund or account of any nature;


 


(b) made any false or fictitious entry, or failed to make any entry that should have been made, in any of the books of account or other records of DTI;


 


(c) made any payoff, influence payment, bribe, rebate, kickback or unlawful payment to any Person;


 


(d) performed any favor or given any gift which was not deductible for federal income tax purposes;


 


(e) made any payment (whether or not lawful) to any Person, or provided (whether lawfully or unlawfully) any favor or anything of value (whether in the form of property or services, or in any other form) to any Person, for the purpose of obtaining or paying for (i) favorable treatment in securing business, or (ii) any other special concession; or


 


(f) agreed or committed to take any of the actions described in clauses "(a)" through "(e)" above.


 




  





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2.26 Capacity of the DTI Stockholders; Authorization; Execution of Agreements. DTI represents and warrants to ONCE and ISI with respect to each DTI Stockholder, and each of the DTI Stockholders, severally and not jointly, represents and warrants to ONCE and ISI only with respect to the DTI Shares owned by each such DTI Stockholder, that (i) the DTI Stockholder has all requisite power, authority and capacity to enter into this Agreement and to perform the transactions and obligations to be performed by him, her or it hereunder, and (ii) this Agreement constitutes a valid and legally binding agreement of the DTI Stockholder, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of the United States (both state and federal), affecting the enforcement of creditors’ rights or remedies in general from time to time in effect and the exercise by courts of equity powers or their application of principles of public policy.


 


2.27 Title to Shares.  DTI represents and warrants to ONCE and ISI with respect to each DTI Stockholder, and each of the DTI Stockholders, severally and not jointly, represents and warrants to ONCE and ISI only with respect to the DTI Shares owned by each such DTI Stockholder, that (i) the DTI Stockholder is the sole record and beneficial owner of the Shares held by him, her or it and has sole managerial and dispositive authority with respect to such Shares, (ii) the DTI Stockholder has not granted any person a proxy with respect to the Shares that has not expired or been validly withdrawn, and (iii) the transfer and delivery by the DTI Stockholder of the Shares to ONCE pursuant to this Agreement will vest in ONCE legal and valid title to the Shares, free and clear of all Encumbrances.


 


3. REPRESENTATIONS AND WARRANTIES OF ONCE AND ISI


 


ONCE and ISI represent and warrant to DTI as follows, except as set forth in the written disclosure schedule delivered or made available by ONCE and ISI to DTI (the "ONCE Disclosure Schedule") or in the ONCE Reports where indicated.  The ONCE Disclosure Schedule shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Section 3.  The disclosure in any section or subsection of the ONCE Disclosure Schedule shall qualify other sections and subsections in this Section 3 only to the extent it is readily apparent that the disclosure contained in such section or subsection of the ONCE Disclosure Schedule contains enough information regarding the subject matter of the other representations in this Section 3 as to clearly qualify or otherwise clearly apply to such other representations and warranties.


 




  





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3.1 Due Organization; Subsidiaries; Etc.


 


(a) ONCE and ISI are corporations duly organized, validly existing and in good standing under the laws of the State of Nevada and the laws of the State of Delaware, respectively, with the corporate power and authority to carry on their business as now being conducted and as currently proposed to be conducted.


 


(b) Neither ONCE nor ISI has conducted any business under or otherwise used, for any purpose or in any jurisdiction, any fictitious name, assumed name, trade name or other name, other than the name "One E-Commerce Corporation," or "Islet Sciences, Inc.," as applicable.


 


(c) ONCE and ISI are not and have not been required to be qualified, authorized, registered or licensed to do business as a foreign corporation in any jurisdiction other than the jurisdictions identified in Part 3.l(c) of the ONCE Disclosure Schedule, except where the failure to be so qualified, authorized, registered or licensed has not had, and would not be reasonably expected to have, a ONCE Material Adverse Effect.  ONCE and ISI are each in good standing as a foreign corporation in each of the jurisdictions identified in Part 3.1(c) of the ONCE Disclosure Schedule.


 


(d) Part 3.1(d) of the ONCE Disclosure Schedule accurately sets forth (i) the names of the members of the board of directors of each of ONCE and ISI, (ii) the names of the members of each committee of the board of directors of each of ONCE and ISI, and (iii) the names and titles of officers of each of ONCE and ISI.


 


(e) ONCE has no subsidiaries other than ISI, a wholly-owned subsidiary of ONCE.  ISI has no subsidiaries.


 


(f) Neither ONCE nor ISI owns any controlling interest in any Entity, except for ONCE’s ownership in ISI. Neither ONCE nor ISI has agreed nor is it obligated to make any future investment in or capital contribution to any Entity. Neither ONCE nor ISI has ever approved, or commenced any proceeding or made any election contemplating, the dissolution or liquidation of ONCE's or ISI’s business or affairs.


 


(g) ONCE is not an "issuing corporation" as that term is defined in the Revised Statutes of the State of Nevada.


 


3.2 Certificate of Incorporation and Bylaws; Records. ONCE and ISI have delivered or made available to DTI copies of:  (a) ONCE's certificate of incorporation and bylaws, including all amendments thereto, and the certificate of incorporation and bylaws of ISI; (b) the stock records of ONCE and ISI; and (c) the minute and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders of ONCE and ISI (the "ONCE Constituent Documents").  There have been no formal meetings or other proceedings of the stockholders of ONCE and ISI, the board of directors of ONCE and ISI or any committee of the board of directors of ONCE and ISI that are not fully reflected in the minutes and other records delivered or made available to DTI pursuant to clause (c) above.  There has not been any violation in any material respect of the ONCE Constituent Documents, and none of ONCE or ISI has taken any action that is inconsistent in any material respect with the ONCE Constituent Documents.  The books of account, stock records, minute books and other records of ONCE and ISI are accurate, up to date and complete in all material respects, and have been maintained in accordance with prudent business practices.


 




  





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3.3 Capitalization.


 


(a) On the Closing Date, immediately before the Share Exchange to be consummated pursuant to this Agreement, ONCE shall have authorized (a) 50,000,000 shares of Common Stock, par value $.001 per share, of which 18,317,200 shares shall be issued and outstanding, all of which will be duly authorized, validly issued and fully paid, and (b) 500,000 shares of preferred stock, par value $0.001 per share, of which there will be issued and outstanding (i) 1,173 shares of Series A Preferred automatically convertible into 1,173,000 shares of ONCE Common Stock immediately after the effectiveness of the Reverse Split, and (ii) 38,050.87 shares of Series B Preferred automatically convertible into 38,050,870 shares of ONCE Common Stock immediately after the effectiveness of the Reverse Split.


 


(b) Except as set forth on Part 3.3(b) of the ONCE Disclosure Schedule, there are no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of capital stock or other securities of ONCE; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of capital stock or other securities of ONCE; (iii) Contract under which ONCE is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities of ONCE; or (iv) condition or circumstance that would give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of ONCE.  ONCE has not issued any debt securities which grant the holder thereof any right to vote on, or veto, any actions by ONCE.


 


3.4 SEC Filings; Financial Statements.


 


(a) Since January 1, 2011, ONCE has made all filings with the SEC required under the applicable requirements of the Securities Act and the Exchange Act. ONCE has delivered or made available to DTI accurate and complete copies (excluding copies of exhibits) of each report, schedule, registration statement and definitive proxy statement filed by ONCE with the SEC on or after January 1, 2011 and prior to the date of this Agreement (the "ONCE SEC Documents").  All ONCE SEC Documents (x) at the time filed (or, if amended or superseded by a later filing prior to the date of this Agreement, than on the date of such later filing), were prepared in compliance in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such ONCE SEC Documents, and (y) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading.


 




  





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(b) The financial statements contained in the ONCE SEC Documents (including, in each case, any related notes thereto): (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered, except as may be indicated in the notes to such consolidated financial statements and except that the unaudited interim consolidated financial statements contained in the ONCE SEC Documents do not contain footnotes as permitted by the applicable laws; and (iii) fairly present the consolidated financial position of ONCE as of the respective dates thereof and the consolidated results of operations and cash flows of ONCE for the periods covered thereby, except that the unaudited interim consolidated financial statements contained in the ONCE SEC Documents were or are subject to normal year-end audit adjustments.


 


3.5 Liabilities.  ONCE does not have any accrued, contingent or other liabilities of any nature, either matured or unmatured (whether or not required to be reflected in financial statements in accordance with GAAP, and whether due or to become due), except for: (i) liabilities identified as such in the “liabilities” column of the most recent financial statements contained in the ONCE Reports; (ii) liabilities that have arisen since the date of the most recent financial statements contained in the ONCE Reports in the Ordinary Course of Business; and (iii) contractual and other liabilities incurred in the Ordinary Course of Business which are not required by GAAP to be reflected on a balance sheet.


 


3.6 Legal Proceedings; Orders.


 


(a) Except as described in part 3.6(a) of the ONCE Disclosure Schedule, there is no pending Legal Proceeding, and to the Knowledge of ONCE and ISI, no Person has threatened to commence any Legal Proceeding:  (i) that involves ONCE or ISI or any assets owned or used by ONCE or ISI or any Person whose liability ONCE or ISI has or may have retained or assumed, either contractually or by operation of law claiming damages in an amount in excess of $50,000; or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with the Share Exchange or any of the Contemplated Transactions. To the Knowledge of ONCE and ISI, no event has occurred, and no claim, dispute or other condition or circumstance exists, that will, or that would reasonably be expected to, give rise to or serve as a basis for the commencement of any such Legal Proceeding.


 


(b) There is no order, writ, injunction, judgment or decree to which ONCE or ISI, or any of the assets owned or used by ONCE or ISI, is subject. To the Knowledge of ONCE, no officer or other employee of ONCE or ISI is subject to any order, writ, injunction, judgment or decree that relates to ONCE's or ISI's business or to any assets owned or used by ONCE or ISI.


 


3.7 Non-Contravention; Consents.  Neither (a) the execution, delivery or performance of this Agreement or any of the Related Agreements, nor (b) the consummation of the Share Exchange or any of the other Contemplated Transactions, will (with or without notice or lapse of time):


 




  





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(a) contravene, conflict with or result in a violation of any of the provisions of ONCE's or ISI’s certificate of incorporation or bylaws;


 


(b) contravene, conflict with or result in a violation of, or give any Governmental Body or other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any order, writ, injunction, judgment or decree to which ONCE or ISI, or any of the assets owned or used by ONCE or ISI, is subject;


 


(c) contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by ONCE or ISI or that otherwise relates to ONCE's or ISI's business or to any of the assets owned or used by ONCE or ISI;


 


(d) result in a material conflict, violation or breach of, or result in a material default under, any provision of any material ONCE and ISI Contract, or give any Person the right to (i) declare a default or exercise any remedy under any such ONCE and ISI Contract, (ii) accelerate the maturity or performance of any such ONCE and ISI Contract, or (iii) cancel, terminate or modify any such ONCE and ISI Contract; or


 


(e) result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by ONCE or ISI (except for minor liens that will not, in any case or in the aggregate, materially detract from the value of the assets subject thereto or materially impair the operations of ONCE or ISI).


 


Except for those filings, notices or Consents disclosed in Part 3.7 of the ONCE Disclosure Schedule, ONCE and ISI are not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Person in connection with (y) the execution, delivery or performance of this Agreement or any of the Related Agreements, or (z) the consummation of the Share Exchange or any of the other Contemplated Transactions.


 


3.8 No Financial Advisor.  Except as set forth in Part 3.8 of the ONCE Disclosure Schedule, no broker, finder or investment banker is entitled to any brokerage fee, finder's fee, opinion fee, success fee, transaction fee or other fee or commission in connection with the Share Exchange or any of the other Contemplated Transactions based upon arrangements made by or on behalf of ONCE or ISI.


 


3.9 Authority; Binding Nature of Agreement.  ONCE and ISI have the absolute and unrestricted right, power and authority to enter into and perform their obligations under this Agreement; and the execution, delivery and performance by ONCE and ISI of this Agreement (including the contemplated issuance of ONCE Shares pursuant to the Share Exchange in accordance with this Agreement) have been duly authorized by all necessary action on the part of ONCE and ISI and their respective boards of directors.  This Agreement has been duly executed and delivered by ONCE and ISI, and, assuming due authorization, execution and delivery by the other Parties hereto, constitutes the legal, valid and binding obligation of ONCE and ISI, enforceable against them in accordance with its terms, subject to (a) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (b) rules of law governing specific performance, injunctive relief and other equitable remedies.


 




  





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3.10 Valid Issuance.  The ONCE Shares to be issued pursuant to the Share Exchange will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and non-assessable.


 


4. CERTAIN COVENANTS OF THE PARTIES


 


4.1 Access and Investigation.  Subject to the terms of the Confidentiality Agreement which the Parties agree will continue in full force following the date of this Agreement, during the period commencing on the date of this Agreement and ending at the earlier of the termination of this Agreement pursuant to its terms or the Closing Date (the "Pre-Closing Period"), upon reasonable notice ONCE, ISI and DTI shall, and shall cause such Party's Representatives to: (a) provide the other Party and such other Party's Representatives with reasonable access during normal business hours to such Party's Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the other Party and such other Party's Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the other Party may reasonably request; and (c) permit the other Party's officers and other employees to meet, upon reasonable notice and during normal business hours, with the officers and managers of such Party responsible for such Party's financial statements and the internal controls of such Party to discuss such matters as the other Party may deem necessary or appropriate in order to enable the other Party to satisfy its obligations under the Sarbanes-Oxley Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period, each of ONCE, ISI and DTI shall promptly provide the other Party with copies of:


 


(i) the unaudited monthly consolidated balance sheets of such Party as of the end of each calendar month and the related profit and loss statements for such calendar month, which shall be delivered within twenty (20) days after the end of such calendar month;


 


(ii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write off reports, hiring reports and capital expenditure reports prepared for its senior management;


 


(iii) any written materials or communications sent by or on behalf of a Party to its stockholders;


 


(iv) any notice, document or other communication sent by or on behalf of a Party to any party to any material ONCE and ISI Contract or material DTI Contract, as applicable, or sent to a Party by any party to any material ONCE and ISI Contract or material DTI Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such material ONCE and ISI Contract or material DTI Contract, as applicable, and that is of the type sent in the Ordinary Course of Business);


 


(v) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body on behalf of a Party in connection with the Share Exchange or any of the Contemplated Transactions;


 


(vi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and


 


(vii) any material notice, report or other document received by a Party from any Governmental Body.


 


Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party or its Subsidiaries to restrict or prohibit access to any such properties or information.


 




  





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4.2 Operation of DTI's Business.


 


(a) Except as set forth on Part 4.2 of the DTI Disclosure Schedule, during the Pre-Closing Period: (i) DTI shall conduct its business and operations: (A) in the Ordinary Course of Business; and (B) in compliance with all applicable Legal Requirements and the requirements of all Contracts that constitute material Contracts; (ii) DTI shall preserve intact its current business organization, keep available the services of its current officers and other employees and maintains its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with DTI; and (iii) DTI shall promptly notify ONCE and ISI of:  (A) any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the Contemplated Transactions; and (B) any Legal Proceeding against, relating to, involving or otherwise affecting DTI that is commenced, or, to the Knowledge of DTI, threatened against, DTI.


 


(b) Except as set forth in Part 4.2 of the DTI Disclosure Schedule, and subject to any Legal Requirement applicable to DTI, during the Pre-Closing Period, DTI agrees that it shall not, without the prior written consent of ONCE and ISI (which shall not be unreasonably withheld, conditioned or delayed) take any action set forth in Section 2.5(c)-(t).


 


4.3 Disclosure Schedule Updates.  During the Pre-Closing Period, DTI shall promptly notify ONCE and ISI in writing, by delivery of an updated DTI Disclosure Schedule of: (i) the discovery by DTI of any event, condition, fact or circumstance that occurred or existed on or prior to the date of this Agreement and that caused or constitutes a material inaccuracy in any representation or warranty made by DTI in this Agreement; (ii) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by DTI in this Agreement if: (A) such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance; or (B) such event, condition, fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; (iii) any material breach of any covenant or obligation of DTI; and (iv) any event, condition, fact or circumstance that could reasonably be expected to make the timely satisfaction of any of the conditions set forth in Sections 6 and 7 impossible or materially less likely. Without limiting the generality of the foregoing, DTI shall promptly advise ONCE and ISI in writing of any Legal Proceeding or claim threatened, commenced or asserted against or with respect to, or otherwise affecting, DTI or (to the Knowledge of such Party) any director, officer or Key Employee of DTI.  No notification given pursuant to this Section 4.3 shall change, limit or otherwise affect any of the representations, warranties, covenants or obligations of DTI contained in this Agreement or its Disclosure Schedule for purposes of Section 7.1 or 7.2.


 




  





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4.4 No Solicitation.


 


(a) DTI agrees that it shall not authorize or permit any of the officers, directors, investment bankers, attorneys or accountants retained by it to, and that it shall use commercially reasonable efforts to cause its non-officer employees and other agents not to (and shall not authorize any of them to) directly or indirectly:  (i) solicit, initiate, encourage, induce or knowingly facilitate the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish any information regarding DTI to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction.


 


(b) If DTI or any Representative of DTI receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then it shall promptly (and in no event later than 24 hours after it becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise ONCE and ISI orally and in writing of the receipt of such Acquisition Proposal or Acquisition Inquiry.  DTI shall keep ONCE and ISI fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto.


 


4.5 ONCE Shares. As set forth in the Certificate of Designations, ONCE Shares issuable to the DTI Stockholders at the Closing shall have the aggregate liquidation preference of three million U.S. dollars ($3,000,000) and be convertible into an aggregate of 2,000,000 shares of ONCE Common Stock (on a post Reverse Split basis).  Subject to the terms and conditions set forth in the Certificate of Designations, ONCE Shares will automatically convert into shares of ONCE Common Stock on the date following at least ten trading days during which the closing price of ONCE Common Stock has been $1.50 or more.


 




  





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5. ADDITIONAL AGREEMENTS OF THE PARTIES


 


5.1 Regulatory Approvals.  ONCE, ISI and DTI shall use commercially reasonable efforts to file or otherwise submit, as soon as practicable after the date of this Agreement, all applications, notices, reports and other documents reasonably required to be filed by such Party with or otherwise submitted by such Party to any Governmental Body with respect to the Share Exchange and the other Contemplated Transactions, and to submit promptly any additional information requested by any such Governmental Body.


 


5.2 Indemnification of Officers and Directors.


 


(a) From the Closing Date through the sixth anniversary of the Closing Date occurs, each of ONCE, ISI and DTI shall, jointly and severally, indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Closing Date, a director or officer of ONCE, ISI or DTI (the "D&O Indemnified Parties"), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys' fees and disbursements (collectively, "Costs"), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director or officer of ONCE, ISI or DTI, whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent permitted under the DGCL for directors or officers of Delaware corporations.  Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of ONCE, ISI and DTI, jointly and severally, upon receipt by ONCE, ISI and DTI from the D&O Indemnified Party of a request therefor; provided that any person to whom expenses are advanced provides an undertaking, to the extent then required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification.


 


(b) The certificate of incorporation and bylaws of each of ONCE, ISI and DTI shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of each of ONCE, ISI and DTI than are presently set forth in the certificate of incorporation and bylaws of ONCE, ISI and DTI which provisions shall not be amended, modified or repealed for a period of six years from the Closing Date in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Closing Date, were officers or directors of ONCE, ISI or DTI.


 


(c) The provisions of this Section 5.2 are intended to be in addition to the rights otherwise available to the current and former officers and directors of ONCE, ISI and DTI by law, charter, statute, by-law or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives.


 


(d) In the event ONCE, ISI and DTI or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of ONCE, ISI and DTI, as the case may be, shall succeed to the obligations set forth in this Section 5.2.


 




  





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5.3 Additional Agreements.


 


(a) Subject to Section 5.3(b), ONCE, ISI and DTI shall use commercially reasonable efforts to cause to be taken all actions necessary to consummate the Share Exchange and make effective the other Contemplated Transactions.  Without limiting the generality of the foregoing, but subject to Section 5.3(b), each of ONCE, ISI and DTI: (i) shall make all filings and other submissions (if any) and give all notices (if any) required to be made and given by such Party in connection with the Share Exchange and the other Contemplated Transactions; (ii) shall use commercially reasonable efforts to obtain each Consent (if any) reasonably required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such Party in connection with the Share Exchange or any of the other Contemplated Transactions or for such Contract to remain in full force and effect, (iii) shall use commercially reasonable efforts to lift any injunction prohibiting, or any other legal bar to, the Share Exchange or any of the other Contemplated Transactions and (iv) shall use commercially reasonable efforts to satisfy the conditions precedent to the consummation of this Agreement.  Each of ONCE, ISI and DTI shall provide to the other of such Parties a copy of each proposed filing with or other submission to any Governmental Body relating to any of the Contemplated Transactions, and shall give each such other Party a reasonable time prior to making such filing or other submission in which to review and comment on such proposed filing or other submission.  Each of ONCE, ISI and DTI shall promptly deliver to the other of such Parties a copy of each such filing or other submission made, each notice given and each Consent obtained by such Party during the Pre-Closing Period.


 


(b) Notwithstanding anything to the contrary contained in this Agreement, no Party shall have any obligation under this Agreement: (i) to dispose of or transfer any assets; (ii) to discontinue offering any product or service; (iii) to license or otherwise make available to any Person any Intellectual Property; (iv) to hold separate any assets or operations (either before or after the Closing Date); (v) to make any commitment (to any Governmental Body or otherwise) regarding its future operations; or (vi) to contest any Legal Proceeding or any order, writ, injunction or decree relating to the Share Exchange or any of the other Contemplated Transactions if such Party determines in good faith that contesting such Legal Proceeding or order, writ, injunction or decree might not be advisable.


 


5.4 Disclosure.  Without limiting any Party's obligations under the Confidentiality Agreement, each Party shall not, and shall not permit any Representative of such Party to, issue any press release or make any disclosure (to any customers or employees of such Party, to the public or otherwise) regarding the Share Exchange or any of the other Contemplated Transactions unless: (a) the other Party shall have approved such press release or disclosure in writing; or (b) such Party shall have determined in good faith, upon the advice of outside legal counsel, that such disclosure is required by applicable Legal Requirements and, to the extent practicable, before such press release or disclosure is issued or made, such Party advises the other Party of, and consults with the other Party regarding, the text of such press release or disclosure.


 




  





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5.5 OTC Bulletin Board Status.  ONCE shall use commercially reasonable efforts to maintain its eligibility for quotation on the OTC Bulletin Board prior to, at and following the Closing Date after giving effect to the Contemplated Transactions.


 


5.6 Directors and Officers.


 


(a) Prior to the Closing Date, ONCE shall take all action necessary to cause the number of members of the board of directors of ONCE to be fixed at five (5) and the persons identified on Schedule 5.6(a)(i) to constitute the board of directors of ONCE, effective immediately after the Closing.  One of the persons identified on Schedule 5.6(a)(i) have been designated by DTI, four of the persons identified on Schedule 5.6(a)(i) have been designated by ONCE and ISI. Each of the designees (i) has served on the board of a U.S. public company or demonstrated other relevant experience beneficial to ONCE and (ii) meets the Legal Requirements applicable to eligibility for service on the ONCE board of directors.  If any person so designated to be a director shall prior to the Closing Date be unable or unwilling to hold office beginning immediately after the Closing, a majority of the directors of ONCE (if such person is a designee of ONCE) or a majority of the directors of DTI (if such person is a designee of DTI) shall designate another to be appointed or nominated for election as a director in his or her place.


 


(b) Prior to the Closing Date, any and all loans or other extensions of credit in any form made by DTI to any director or executive officer of DTI shall be repaid or retired in a manner reasonably satisfactory to ONCE.


 


5.7 Lock-up Agreement. Each of the DTI Stockholders shall enter into a Lock-up Agreement in the form attached hereto as Exhibit D (each, a “Lock-up Agreement”), pursuant to which each such DTI Stockholder shall agree not to sell, assign or otherwise transfer the ONCE Shares received by such DTI Stockholder pursuant to the terms of this Agreement from the Closing Date until six (6) months after the Closing Date (the “Lock-up Period”).


 


5.8 Tax Matters.


 


(a) ONCE, ISI and DTI each agrees to use their respective commercially reasonable efforts to cause the Share Exchange to qualify, and will not take any actions which to their Knowledge could reasonably be expected to prevent the Share Exchange from qualifying, as a "reorganization" under Section 368(a) of the Code.


 


(b) This Agreement is intended to constitute, and the Parties hereto hereby adopt this Agreement as, a "plan or reorganization" within the meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a). ONCE, ISI and DTI shall report the Share Exchange as a reorganization within the meaning of Section 368(a) of the Code, unless otherwise required pursuant to a "determination" within the meaning of Section 1313(a) of the Code.


 


5.9 Legends.  ONCE shall be entitled to place appropriate legends on the certificates evidencing any ONCE Shares to be received in the Share Exchange and to issue appropriate stop transfer instructions to the transfer agent for ONCE Common Stock.


 




  





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6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY


 


The obligations of each Party to effect the Share Exchange and otherwise consummate the transactions to be consummated at the Closing are subject to the satisfaction or, to the extent permitted by applicable law, the written waiver by each of the Parties, at or prior to the Closing, of each of the following conditions:


 


6.1 No Restraints.  No temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Share Exchange shall have been issued by any court of competent jurisdiction or other Governmental Body and remain in effect, and there shall not be any Legal Requirement which has the effect of making the consummation of the Share Exchange illegal.


 


6.2 Governmental Authorization.  Any Governmental Authorization or other Consent required to be obtained by any of the Parties under any applicable antitrust or competition law or regulation or other Legal Requirement shall have been obtained and shall remain in full force and effect.


 


6.3 Eligibility for Quotation.  ONCE Common Stock shall have been continually eligible for quotation on the OTC Bulletin Board as of and from the date of this Agreement through the Closing Date, and shall remain eligible for quotation on the OTC Bulletin Board immediately after the Closing Date after giving effort to the Contemplated Transactions.


 


6.4 Filing of Certificate of Designations.  The Certificate of Designations shall have been duly authorized, adopted, filed and otherwise made effective.


 


6.5 Consulting Agreements.  ONCE or DTI as applicable, shall have entered into consulting agreements in form and substance acceptable to ONCE, with Jerry L. Nadler and Mary Ann Latona Nadler.


 


7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF ONCE AND ISI


 


The obligations of ONCE and ISI to effect the Share Exchange and otherwise consummate the transactions to be consummated at the Closing are subject to the satisfaction or the written waiver by ONCE and ISI, at or prior to the Closing, of each of the following conditions:


 


7.1 Accuracy of Representations. The representations and warranties of DTI contained in this Agreement shall have been true and correct as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the same force and effect as if made on the Closing Date except (A) in each case, or in the aggregate, where the failure to be true and correct would not reasonably be expected to have a DTI Material Adverse Effect, or (B) for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct, subject to the qualifications as set forth in the preceding clause (A), as of such particular date) (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all "DTI Material Adverse Effect" qualifications and other qualifications based on the word "material" contained in such representations and warranties shall be disregarded and (ii) any update of or modification to the DTI Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded).


 




  





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7.2 Performance of Covenants.  Each of the covenants and obligations in this Agreement that DTI is required to comply with or to perform at or prior to the Closing shall have been complied with and performed by DTI in all material respects.


 


7.3 Consents.  All of the Consents set forth on Part 2.20 of the DTI Disclosure Schedule shall have been obtained and shall be in full force and effect.


 


7.4 Payment of Liabilities.  All existing debts and liabilities of DTI shall have been settled or discharged, other than contractual liabilities arising after the Closing Date and those liabilities set forth on attached Schedule 7.4, which scheduled liabilities will be paid by the issuance of, or the proceeds from, one hundred thousand shares of ONCE Common Stock contributed to DTI by ONCE.


 


7.5 Agreements and Other Documents.  ONCE and ISI shall have received the following agreements and other documents, each of which shall be in full force and effect:


 


(a) Lock-up Agreements in the form of Exhibit D, executed by the DTI Stockholders;


 


(b) a certificate executed by the chief executive officer and chief financial officer of DTI confirming that the conditions set forth in Sections 7.1, 7.2 and 7.3 have been duly satisfied; and


 


(c) certificates of good standing (or equivalent documentation) of DTI in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of resolutions of the board of directors of DTI authorizing the execution of this Agreement and the consummation of the Contemplated Transactions to be performed by DTI.


 


8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF DTI.


 


The obligations of DTI to effect the Share Exchange and otherwise consummate the transactions to be consummated at the Closing are subject to the satisfaction or the written waiver by DTI, at or prior to the Closing, of each of the following conditions:


 




  





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8.1 Accuracy of Representations. The representations and warranties of ONCE and ISI contained in this Agreement shall have been true and correct as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the same force and effect as if made on the Closing Date except (A) in each case, or in the aggregate, where the failure to be true and correct would not reasonably be expected to have a ONCE Material Adverse Effect, or (B) for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct, subject to the qualifications as set forth in the preceding clause (A), as of such particular date) (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all "ONCE Material Adverse Effect" qualifications and other qualifications based on the word "material" contained in such representations and warranties shall be disregarded and (ii) any update of or modification to the ONCE Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded).


 


8.2 Performance of Covenants.  All of the covenants and obligations in this Agreement that ONCE or ISI is required to comply with or to perform at or prior to the Closing shall have been complied with and performed in all material respects.


 


8.3 Consents. All the Consents set forth on Part 8.3 of the ONCE Disclosure Schedule shall have been obtained and shall be in full force and effect.


 


9. TERMINATION


 


9.1 Termination.  This Agreement may be terminated prior to the Closing Date:


 


(a) by mutual written consent duly authorized by the Boards of Directors of ONCE, ISI and DTI;


 


(b) by either ONCE and ISI or DTI if the Share Exchange shall not have been consummated by February 29, 2012; provided, however, that the right to terminate this Agreement under this Section 9. l(b) shall not be available to any Party whose action or failure to act has been a principal cause of the failure of the Share Exchange to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;


 


(c) by either ONCE and ISI or DTI if a court of competent jurisdiction or other Governmental Body shall have issued a final and non-appealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Share Exchange;


 


(d) by DTI, upon a breach of any representation, warranty, covenant or agreement on the part of ONCE or ISI set forth in this Agreement, or if any representation or warranty of ONCE or ISI shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in ONCE's or ISI's representations and warranties or breach by ONCE or ISI is curable by ONCE or ISI, then this Agreement shall not terminate pursuant to this Section 9.1(d) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a thirty (30) day period commencing upon delivery of written notice from DTI to ONCE or ISI of such breach or inaccuracy and (ii) ONCE or ISI (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(d) as a result of such particular breach or inaccuracy if such breach by ONCE or ISI is cured prior to such termination becoming effective); and


 




  





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(e) by ONCE or ISI, upon a breach of any representation, warranty, covenant or agreement on the part of DTI set forth in this Agreement, or if any representation or warranty of DTI shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in DTI's representations and warranties or breach by DTI is curable by DTI, then this Agreement shall not terminate pursuant to this Section 9.l(e) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a thirty (30) day period commencing upon delivery of written notice from ONCE and ISI to DTI of such breach or inaccuracy and (ii) DTI ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.l(e) as a result of such particular breach or inaccuracy if such breach by DTI is cured prior to such termination becoming effective).


 


9.2 Effect of Termination.  In the event of the termination of this Agreement as provided in Section 9.1, this Agreement shall be of no further force or effect; provided, however, that (i) this Section 9.2, Section 9.3, and Section 10 shall survive the termination of this Agreement and shall remain in full force and effect, and (ii) the termination of this Agreement shall not relieve any Party from any liability for any material breach of any representation, warranty, covenant, obligation or other provision contained in this Agreement.


 


9.3 Expenses; Termination Fees.  All fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Share Exchange is consummated.


 


10. MISCELLANEOUS PROVISIONS


 


10.1 Non-Survival of Representations and Warranties. The representations, warranties and covenants of DTI, the DTI Stockholders, ISI and ONCE contained in this Agreement or any certificate or instrument delivered pursuant to this Agreement shall terminate and be of no further force or effect immediately after the Closing; provided however, that the several representations and warranties of each of the DTI Stockholders in Sections 2.26 and 2.27 shall survive indefinitely.  Notwithstanding anything contained herein to the contrary, the liability of each of the DTI Stockholders for a breach of their representations and warranties is limited to the value of the ONCE Shares received by them pursuant to this Agreement, determined at the Closing Date.


 


10.2 Amendment.  This Agreement may be amended with the approval of the respective boards of directors of DTI, ISI and ONCE at any time; provided, however, that the consent of each Party to this Agreement must be obtained for any amendment that would adversely affect such Party, including, without limitation, by increasing the obligations of such Party or reducing the value of the consideration payable to such Party.  This Agreement may not be amended except by an instrument in writing signed on behalf of each of DTI, ISI and ONCE; provided, however, that the consent of each Party to this Agreement must be obtained for any amendment that would adversely affect such Party, including, without limitation, by increasing the obligations of such Party or reducing the value of the consideration payable to such Party.


 


10.3 Waiver.


 


(a) No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.


 




  





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(b) No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.


 


10.4 Entire Agreement; Counterparts; Exchanges by Facsimile.  This Agreement and the other agreements referred to in this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the Parties with respect to the subject matter hereof and thereof; provided, however, that the Confidentiality Agreement shall not be superseded and shall remain in full force and effect in accordance with its terms. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument.  The exchange of a fully executed Agreement (in counterparts or otherwise) by all Parties by facsimile or other electronic transmission shall be sufficient to bind the Parties to the terms and conditions of this Agreement.


 


10.5 Applicable Law; Jurisdiction.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws.  Each of the Parties to this Agreement, other than the DTI Stockholders, (a) consents to submit itself to the personal jurisdiction of the federal court sitting in New York County, New York in any action or proceeding arising out of or relating to this Agreement or any of the Contemplated Transactions, (b) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (d) agrees not to bring any action or proceeding (including counter-claims) arising out of or relating to this Agreement or any of the Contemplated Transactions in any other court. Each of the Parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other Party with respect thereto.  Any Party hereto may make service on another Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 10.8.  Nothing in this Section 10.5, however, shall affect the right of any Party to serve legal process in any other manner permitted by law.


 


10.6 Attorneys' Fees.  In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties under this Agreement, the prevailing Party in such action or suit shall be entitled to receive a reasonable sum for its attorneys' fees and all other reasonable costs and expenses incurred in such action or suit.


 


10.7 Assignability; No Third Party Beneficiaries.  This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties hereto and their respective successors and assigns; provided, however, that neither this Agreement nor any of a Party's rights or obligations hereunder may be assigned or delegated by such Party without the prior written consent of the other Party, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such Party without the other Party's prior written consent shall be void and of no effect.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than: (a) the Parties hereto; (b) rights pursuant to Section 1, and (c) the D&O Indemnified Parties to the extent of their respective rights pursuant to Section 5.2) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.


 


10.8 Notices. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received when delivered by hand, by registered mail, by nationally recognized courier or express delivery service or by facsimile to the address or facsimile telephone number set forth beneath the name of such Party below (or to such other address or facsimile telephone number as such Party shall have specified in a written notice given to the other Parties hereto):


 




  





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if to ONCE or ISI:


 


1370 Avenue of the Americas, Suite 902


New York, New York 10019


Attention: John Steel


Telephone: (858) 699-8313


Fax: (212) 245-4165







with a copy to:







Guzov Ofsink, LLC


900 Third Avenue, 5th Floor


New York, NY 10022


Attention: Darren L. Ofsink, Esq.


Telephone: (212) 371-8008


Fax: (212) 688-7273







if to DTI:


 


DiaKine Therapeutics, Inc.


338 Raleigh Avenue


Norfolk, VA 23507


Attention: Jerry L. Nadler, M.D.


Telephone: (757)


Fax: (757) 305-9705







with a copy to:







Willcox & Savage, P.C.


222 Central Park Avenue, Suite 1500


Virginia Beach, VA 23462


Attention: Brian C. Purcell, Esq.


Telephone: (757) 628-5688


Fax: (757) 628-5659







if to any DTI Stockholder to the address set forth beside such Party’s name on Exhibit B.


 




  





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10.9 Cooperation.  Each Party agrees to cooperate fully with the other Party and to execute and deliver such further documents, certificates, agreements and instruments and to take such other actions as may be reasonably requested by the other Party to evidence or reflect the Contemplated Transactions and to carry out the intent and purposes of this Agreement.


 


10.10 Severability.  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.  If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the Parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.


 


10.11 Other Remedies; Specific Performance.  Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.  The Parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being the addition to any other remedy to which they are entitled at law or in equity.


 


10.12 Construction.


 


(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.


 


(b) The Parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement.


 


(c) As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation."


 


(d) Except as otherwise indicated, all references in this Agreement to "Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this Agreement and Exhibits and Schedules to this Agreement.


 


(e) The bold-faced headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.


 


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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.


 



	 	 	ONCE E-COMMERCE CORPORATION	 
	 	 	 	 
	 	 	
By:___________________________________


Name:


Title:

	 
	 	 	 	 
	 	 	ISLET SCIENCES, INC.	 
	 	 	 	 
	 	 	By:___________________________________ 

Name:


Title:

	 
	 	 	 	 
	 	 	DIAKINE THERAPEUTICS, INC.	 
	 	 	 	 
	 	 	By:___________________________________ 

Name:


Title:

	 
	 	 	 	 





 


 


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ADPHARMA, INC.

	 
	 	 	 	 
	 	 	
By:___________________________________


Name: Anil Sunkara


Title:

	 
	 	 	_____________________________________	 
	 	 	
J. BRISTOW ANDERSON

	 
	 	 	 	 
	 	 	AP INVESTMENT CORPORATION	 
	 	 	 	 
	 	 	By:___________________________________ 

Name:  James B. Farinholt, Jr.


Title:

	 
	 	 	 	 
	 	 	
BT DIAKINE INVESTMENTS, LP

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: Catherine Mott


Title:

	 
	 	 	 	 





 




  





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CELL THERAPEUTICS, INC.

	 
	 	 	
By:___________________________________


Name: Craig Philips


Title:

	 
	 	 	_____________________________________	 
	 	 	
MENG CHEN

	 
	 	 	 	 
	 	 	_____________________________________	 
	 	 	NANCY DANIEL	 
	 	 	 	 
	 	 	 _____________________________________	 
	 	 	RICHARD J. DePIANO	 
	 	 	 	 
	 	 	_____________________________________	 
	 	 	RICHARD J. DePIANO, JR.	 
	 	 	 	 
	 	 	 	 
	 	 	
ELLA FITZGERALD CHARITABLE FOUNDATION

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name:  Richard D. Rosman


Title:

	 
	 	 	 	 
	 	 	_____________________________________	 
	 	 	
JAMES B. FARINHOLT, JR.

	 
	 	 	 	 
	 	 	_____________________________________	 
	 	 	W. BLAIR FARINHOLT	 
	 	 	 	 
	 	 	_____________________________________	 
	 	 	WILLEM F. GADIANO	 
	 	 	 	 
	 	 	HANTZMON WIEBEL LLP	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: Richard Busofsky


Title:

	 
	 	 	 	 





 




  





39











  






 



	 	 	 	 
	 	 	HUTCHINSON LAW GROUP	 
	 	 	 	 
	 	 	By:___________________________________ 

Name:  Fred D. Hutchinson


Title:

	 
	 	 	 	 
	 	 	_____________________________________	 
	 	 	

KEITH D. IGNOTZ



	 
	 	 	 	 
	 	 	_____________________________________	 
	 	 	

PAUL MANNING



	 
	 	 	 	 
	 	 	
OKLA BASIL MEADE, JR. ROTH IRA, CHASE 


CUSTODIAN, MORGAN STANLEY & CO., 


WEALTH MANAGEMENT DIVISION

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: 


Title:

	 







 



	 	 	_____________________________________	 
	 	 	

JERRY L. NADLER, M.D.



	 
	 	 	 	 
	 	 	_____________________________________	 
	 	 	
MARY ANN LATONA NADLER

	 
	 	 	 	 
	 	 	 	 
	 	 	
OBM CENTRE INVESTORS, LP

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: Okla Basil Meade, Jr.


Title: General Partner

	 
	 	 	 





 




  





40











  






 



	 	 	
STEPHEN K. AND CHERYL K. PARKS WROS

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name:  Stephen K. Parks

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name:  Cheryl K. Parks

	 
	 	 	 	 
	 	 	ROSMAN 2000 REVOCABLE TRUST	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: Richard D. Rosman


Title:

	 
	 	 	 	 
	 	 	UNIVERSITY OF VIRGINIA PATENT FOUNDATION	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: 


Title:

	 
	 	 	 	 



 


 




  





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THE MARK E. UTLEY TRUST u/a dated 1/9/12

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: Mark E. Utley, Trustee

	 
	 	 	 	 
	 	 	 	 
	 	 	
VEGA EAST LTD.

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: James L. Vick


Title:

	 
	 	 	 	 
	 	 	
WILLIAMS MULLEN CLARK & DOBBINS, P.C.

	 
	 	 	 	 
	 	 	By:___________________________________ 

Name: John M. Paris


Title: Shareholder

	 
	 	 	 	 
	 	 	ZANDONG YANG	 



 




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EXHIBIT A


 


DEFINITIONS


 


For purposes of the Agreement (including this Exhibit A):


 


"Acquisition Inquiry" shall mean an inquiry, indication of interest or request for information (other than an inquiry, indication of interest or request for information made or submitted by ONCE to DTI) that could reasonably be expected to lead to an Acquisition Proposal with DTI.


 


"Acquisition Proposal" shall mean any offer or proposal (other than an offer or proposal made or submitted by ONCE) contemplating or otherwise relating to any Acquisition Transaction with DTI.


 


"Acquisition Transaction" shall mean any transaction or series of transactions involving:


 


(a) any merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of securities, reorganization, recapitalization, tender offer, exchange offer or other similar transaction: (i) in which DTI is a constituent corporation; (ii) in which a Person or "group" (as defined in the Exchange Act and the rules promulgated thereunder) of Persons directly or indirectly acquires beneficial or record ownership of securities representing more than 15% of the outstanding securities of any class of voting securities of DTI; or (iii) in which DTI issues securities representing more than 15% of the outstanding securities of any class of voting securities of DTI;


 


(b) any sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or assets that constitute or account for: (i) 15% or more of the consolidated net revenues of DTI, consolidated net income of DTI, or consolidated book value of the assets of DTI; or (ii) 15% or more of the fair market value of the assets of DTI; or


 


(c) any liquidation or dissolution of DTI.


 


"Affiliate" shall mean any Person under common control with such Party within the meaning of Sections 414 (b), (c), (m) and (o) of the Code, and the regulations issued thereunder.


 


"Agreement" shall mean the Share Exchange Agreement to which this Exhibit A is attached, as it may be amended from time to time.


 


"Business Day" shall mean any day other than a day on which banks in the State of New York are authorized or obligated to be closed.


 




  





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"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.


 


"Code" shall mean the Internal Revenue Code of 1986, as amended.


 


"Confidentiality Agreement" shall mean the Confidentiality Agreement dated July 7, 2011, between  DTI and ISI.


 


"Consent" shall mean any approval, consent, ratification, permission, waiver or authorization (including any Governmental Authorization).


 


"Contemplated Transactions" shall mean the Share Exchange and the other transactions and actions contemplated by the Agreement.


 


"Contract" shall, with respect to any Person, mean any written, oral or other agreement, contract, subcontract, lease (whether real or personal property), mortgage, understanding, arrangement, instrument, note, option, warranty, purchase order, license, sublicense, insurance policy, benefit plan or legally binding commitment or undertaking of any nature to which such Person is a party or by which such Person or any of its assets are bound or affected under applicable law.


 


"DGCL" shall mean the General Corporation Law of the State of Delaware.


 


"DTI Common Stock" shall mean the Common Stock, $0.001 par value per share, of DTI.


 


"DTI Contract" shall mean any Contract:  (a) to which DTI is a Party; (b) by which any of DTI IP Rights or any other asset of DTI is or may become bound or under which DTI has, or may become subject to, any obligation; or (c) under which DTI has or may acquire any right or interest.


 


"DTI IP Rights" shall mean all Intellectual Property owned, licensed, or controlled by DTI that is necessary or used in the businesses of DTI as presently conducted.


 


"DTI IP Rights Agreement" shall mean any Contract governing, related or pertaining to any DTI IP Rights.


 


"DTI Material Adverse Effect" shall mean any Effect that, considered together with all other Effects that had occurred prior to the date of determination of the occurrence of the DTI Material Adverse Effect, is or would reasonably be expected to be or to become materially adverse to, or has or would reasonably be expected to have or result in a material adverse effect on: (a) the business, financial condition, capitalization, assets (including Intellectual Property), operations or financial performance or prospects of DTI, taken as a whole; or (b) the ability of DTI to consummate the Share Exchange or any of the other Contemplated Transactions or to perform any of its covenants or obligations under the Agreement; provided, however, that none of the following shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be a DTI Material Adverse Effect: (i) any change in the business, financial condition, capitalization, assets, operations or financial performance or prospects of DTI caused by, related to or resulting from, directly or indirectly, the Contemplated Transactions or the announcement thereof, or any transactions undertaken, continued or consummated in connection with the DTI Disclosed Transactions, (ii) any failure by DTI to meet internal projections or forecasts for any period, (iii) any adverse change, effect or occurrence attributable to the United States economy as a whole or the industries in which DTI competes, (iv) any act or threat of terrorism or war anywhere in the world, any armed hostilities or terrorist activities anywhere in the world, any threat or escalation or armed hostilities or terrorist activities anywhere in the world or any governmental or other response or reaction to any of the foregoing, (v) any change in accounting requirements or principles or any change in applicable laws, rules or regulations or the interpretation thereof, or (vi) any Effect resulting from the announcement or pendency of the Share Exchange.


 




  





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"DTI Products" shall mean all products being manufactured, distributed or developed by or on behalf of DTI.


 


"DTI Related Party" shall mean (i) DTI Stockholders; (ii) each individual who is, or who has at any time been, an officer or director of DTI; (iii) each member of the immediate family of each of the individuals referred to in clause (ii) above; and (iv) any trust or other Entity (other than DTI) in which any one of the Persons referred to in clauses (i), (ii) or (iii) above holds (or in which more than one of such Persons collectively hold), beneficially or otherwise, a material voting, proprietary, equity or other financial interest.


 


"DTI Registered IP" shall mean all DTI IP Rights that are registered, filed or issued under the authority of, with or by any Governmental Body, including all patents, registered copyrights and registered trademarks and all applications for any of the foregoing.


 


"Encumbrance" shall mean any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset) other than (a) mechanic's, materialmen's and similar liens, (b) liens arising under worker's compensation, unemployment insurance and similar legislation, and (c) liens on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the Ordinary Course of Business.


 


"Entity" shall mean any corporation (including any non-profit corporation), partnership (including any general partnership, limited partnership or limited liability partnership), joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm, society or other enterprise, association, organization or entity.


 


"Environmental Law" means any federal, state, local or foreign Legal Requirement relating to pollution or protection of human health or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including any law or regulation relating to emissions, discharges, releases or threatened releases of Materials of Environmental Concern, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern.


 




  





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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.


 


"FMLA" shall mean the Family Medical Leave Act of 1993, as amended.


 


"Governmental Authorization" shall mean any: (a) permit, license, certificate, franchise, permission, variance, exceptions, orders, clearance, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement; or (b) right under any Contract with any Governmental Body.


 


"Governmental Body" shall mean any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, instrumentality, official, ministry, fund, foundation, center, organization, unit, body or Entity and any court or other tribunal, and for the avoidance of doubt, any Taxing authority); or (d) self-regulatory organization.


 


"HIPAA" shall mean the Health Insurance Portability and Accountability Act of 1996, as amended.


 


"Intellectual Property" shall mean United States, foreign and international patents, patent applications, including provisional applications, statutory invention registrations, invention disclosures, inventions, trademarks, service marks, trade names, domain names, URLs, trade dress, logos and other source identifiers, including registrations and applications for registration thereof, copyrights, including registrations and applications for registration thereof, software, formulae, customer lists, trade secrets, know-how, methods, processes, protocols, specifications, techniques, and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing, such as laboratory notebooks, samples, studies and summaries) confidential information and other proprietary rights and intellectual property, whether patentable or not.


 


"IRS" shall mean the United States Internal Revenue Service.


 


"ISI IP Rights" shall mean all Intellectual Property owned, licensed, or controlled by ONCE and ISI that is necessary or used in ONCE's business as presently conducted.


 


"ISI IP Rights Agreement" shall mean any instrument or agreement governing any ISI IP Rights.


 


"ISI Registered IP" shall mean all ISI IP Rights that are registered, filed or issued under the authority of, with or by any Governmental Body, including all patents, registered copyrights and registered trademarks and all applications for any of the foregoing.


 




  





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"Key Employee" shall mean an executive officer of DTI, ISI or ONCE, as applicable, or any employee that reports directly to the board of directors or chief executive officer of DTI, ISI or ONCE, as applicable.


 


"Knowledge" means, with respect to an individual, that such individual is actually aware of the relevant fact or such individual would reasonably be expected to know such fact in the ordinary course of the performance of the individual's employee or professional responsibility.  Reference to the "Knowledge of DTI" or similar phrases shall mean the Knowledge of each of the following individuals: Jerry L. Nadler, Mary Ann Latona Nadler, and Keith Ignotz. Reference to the "Knowledge of ONCE" or similar phrases shall mean the Knowledge of each of the following individuals:  John Steel, Joel Perlin, George Todaro and Richard Egan.


 


"Legal Proceeding" shall mean any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Body or any arbitrator or arbitration panel.


 


"Legal Requirement" shall mean any federal, state, foreign, material local or municipal or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body (or under the authority of the Financial Industry Regulatory Authority).


 


"NRS" shall mean the Nevada Revised Statutes.


 


"ONCE Common Stock" shall mean the Common Stock, $0.001 par value per share, of ONCE with the rights set forth in the Certificate of Designations.


 


"ONCE and ISI Contract" shall mean any Contract: (a) to which ONCE or ISI is a party; (b) by which ONCE or any ISI IP Rights or any other asset of ONCE or ISI is or may become bound or under which ONCE or ISI has, or may become subject to, any obligation; or (c) under which ONCE or ISI has or may acquire any right or interest.


 


"ONCE Material Adverse Effect" shall mean any effect, change, event, circumstance or development (each such item, an "Effect") that, considered together with all other Effects that had occurred prior to the date of determination of the occurrence of the ONCE Material Adverse Effect, is or would reasonably be expected to be or to become materially adverse to, or has or would reasonably be expected to have or result in a material adverse effect on: (a) the business, financial condition, capitalization, assets (including Intellectual Property), operations or financial performance or prospects of ONCE and ISI; or (b) the ability of ONCE and ISI to consummate the Share Exchange or any of the other Contemplated Transactions or to perform any of its covenants or obligations under the Agreement; provided, however, that none of the following shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be a ONCE Material Adverse Effect: (i) any change in the business, financial condition, capitalization, assets, operations or financial performance or prospects of ONCE and ISI caused by, related to or resulting from, directly or indirectly, the Contemplated Transactions or the announcement thereof or any transactions undertaken, continued or consummated in connection with the ONCE Disclosed Transactions, (ii) any failure by ONCE or ISI to meet internal projections or forecasts for any period, (iii) any adverse change, effect or occurrence attributable to the United States economy as a whole or the industries in which ONCE and ISI compete, (iv) any act or threat of terrorism or war anywhere in the world, any armed hostilities or terrorist activities anywhere in the world, any threat or escalation of armed hostilities or terrorist activities anywhere in the world or any governmental or other response or reaction to any of the foregoing, (v) any change in accounting requirements or principles or any change in applicable laws, rules or regulations or the interpretation thereof, (vi) any Effect resulting from the announcement or pendency of the Share Exchange, (vii) any action taken at DTI’s request by ONCE or any of their respective affiliates, (viii) any matter set forth in the ONCE Disclosure Schedule, as in effect on the initial date of delivery thereof and without giving affect to any amendments or supplements thereto, except for any material worsening of such matter, and (ix) any matter set forth in the ONCE Reports.


 




  





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"ONCE Preferred Stock" shall mean the Series C Preferred Stock, $0.001 par value per share, of ONCE with the rights and preferences as are more fully described in the Certificate of Designations.


 


"ONCE Related Party" shall mean any affiliate, as defined in Rule 12b-2 under the Securities Act.


 


"ONCE Reports" shall mean reports filed by ONCE with the SEC under the Exchange Act.


 


"Ordinary Course of Business" shall mean, in the case of each of DTI, ONCE and ISI, such reasonable and prudent actions taken in the ordinary course of its normal operations and consistent with its past practices.


 


"Party" or "Parties" shall mean DTI, DTI Stockholders, ISI and ONCE. Person.


 


"Person" means any (i) individual, (ii) Entity or (iii) Governmental Body.


 


"Related Agreements" shall mean the Lock-Up Agreements, the Consulting Agreements and any other documents or agreements executed in connection with this Agreement or the Contemplated Transactions.


 


"Representatives" shall mean directors, officers, other employees, agents, attorneys, accountants, advisors and representatives.


 


“Reverse Split” means 1-for-45 reverse stock split of outstanding shares of ONCE Common Stock.


 


"SEC" shall mean the United States Securities and Exchange Commission.


 


"Securities Act" shall mean the Securities Act of 1933, as amended.


 


"Subsidiary."  An entity shall be deemed to be a "Subsidiary" of another Person if such Person directly or indirectly owns or purports to own, beneficially or of record, (a) an amount of voting securities of other interests in such entity that is sufficient to enable such Person to elect at least a majority of the members of such entity's board of directors or other governing body, or (b) at least 50% of the outstanding equity, voting, beneficial or financial interests in such Entity.


 


"Tax" shall mean any federal, state, local, foreign or other taxes, levies, charges and fees or other similar assessments or liabilities in the nature of a tax, including, without limitation, any income tax, franchise tax, capital gains tax, gross receipts tax, value-added tax, surtax, estimated tax, unemployment tax, national health insurance tax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, withholding tax, payroll tax, customs duty, alternative or add-on minimum or other tax of any kind whatsoever, and including any fine, penalty, assessment, addition to tax or interest, whether disputed or not.


 


"Tax Return" shall mean any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, form, election, certificate or other document or information, and any amendment or supplement to any of the foregoing, filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Legal Requirement relating to any Tax.


 


 


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