Trovagene, Inc. – ‘8-K’ for 7/2/04 – EX-2.2

On:  Monday, 7/19/04, at 4:46pm ET   ·   For:  7/2/04   ·   Accession #:  1038838-4-631   ·   File #:  333-103083

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Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Form 8-K Dated July 2, 2004                            6     24K 
 2: EX-2.2      Closing Agreement                                      6±    27K 
 3: EX-2.3      Technology Acquisition Agreement                       9     41K 
 5: EX-2.5      Purchaser Escrow Agreement                            10     37K 
 6: EX-2.6      Repurchase Agreement                                   4     20K 
 7: EX-3.(I).1  Amended Articles of Incorporation                      2     11K 
 8: EX-3.(II).1  Amended and Restated By-Laws                         13     69K 
 9: EX-4.1      Specimen Stock Cerificate                              2     10K 
10: EX-4.2      Form of Warrant                                        8     29K 
11: EX-4.3      Xenomics, Inc. 2004 Stock Option Plan                 14     62K 
 4: EX-24       Shareholder Escrow Agreement                           9     37K 
12: EX-99.2     Executive Employment Agreement: Melkonyan             11     46K 
13: EX-99.3     Executive Employment Agreement: Umansky               11     47K 
14: EX-99.4     Executive Employment Agreement: Tomei                 10     40K 
15: EX-99.5     Voting Agreement                                      11     35K 

EX-2.2   —   Closing Agreement
Exhibit Table of Contents

EX-2.2
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Exhibit 2.2                                                                     

 CLOSING AGREEMENT

       This CLOSING AGREEMENT (the "Agreement") is entered into effective as
of July 2, 2004 (the "Effective Date") by and among USED KAR PARTS, INC., a     
Florida corporation ("UKP"), XENOMICS, a California corporation ("Xenomics"), L.
DAVID TOMEI, SAMUIL UMANSKY, HOVSEP S. MELKONYAN, KATHRYN P. WILKE, each, a     
resident of the State of California, and ANATOLY V. LICHTENSTEIN, a resident of 
Russia, (collectively, "Shareholders"), with reference to the facts and         
circumstances set forth in the Recitals below.                                  

RECITALS

A. UKP, Shareholders, and Xenomics are parties to that certain
Securities Exchange Agreement ("Exchange Agreement") of even date herewith      
pursuant to which UKP will acquire all of the issued and outstanding shares of  
Xenomics' capital stock from the Shareholders in exchange for issuance of shares
of UKP's capital stock to the Shareholders Xenomics' shareholders (the          
"Exchange").                                                                    

        B. Due to certain certain grace periods given to prospective investors
and the parties hereto, the parties wish to execute all documents as of June 24,
2004, except for this Agreement, and to close the transactions contemplated     
under the terms of the Exchange Agreement on the Effective Date.                

   C. In order to facilitate the Closing (as defined in the Exchange
Agreement) the parties to the Exchange Agreement desire to enter into this      
Closing Agreement.                                                              

  D. The parties are executing this Agreement to memorialize their
understanding regarding the foregoing.                                          

 AGREEMENT

 NOW, THEREFORE, in consideration of the promises made under the
Exchange Agreement, the above Recitals the mutual promises and covenants        
hereinafter set forth, and other good and valuable consideration, the receipt of
which is hereby acknowledged, UKP, Licensor, and the Shareholders agree follows:

      1. Interpretation. Except as stated otherwise in this Agreement, the
Exchange Agreement, including any Exhibit and Schedule thereto, shall remain in 
full force and effect. In the event of a conflict between the provisions of this
Agreement and those of the Exchange Agreement, this Agreement shall control.    
Terms with initial capital letters are defined terms which shall have the       
respective meanings given them in the Exchange Agreement, unless the context of 
this Agreement requires otherwise.                                              

2. Private Placement.                                         

              2.1 Concurrently with the Closing UKP will close a private
equity financing (the "Financing") in the amount of not less than $2,250,000 and
up to $2,600,000, in which UKP will sell shares of its common stock (after      
giving effect to the Recapitalization) at a per share price of ninety five cents
($.95) to investors.                                                            

                2.2 Notwithstanding anything to the contrary in the Security
Exchange Agreement or any Exhibit and Schedule thereto, the parties agree, that 
UKP's capitalization at of the Closing, taking into consideration the issuance  
of common stock to the private equity investors, shall be as stated in the      
Capitalization Table attached hereto as Exhibit 1.                              

                2.3 The parties agree that the funds raised in the Financing
shall be used (a) in the amount of five hundred thousand Dollars ($500,000) for 
the redemption of 1,971,734 shares of UKP's common stock from Panetta Partners, 
Ltd, (b) in an amount as may be invoiced by Baum & Company, P.A. for the audit  
of Xenomics' books and records that is currently ongoing, (c) in an amount as   
may be invoiced by Kirkpatrick & Lockhart LLP, Sommer & Schneider LLP, and      
Mayer, Brown, Rowe & Maw LLP for transaction costs in conjunction with the      
Exchange, and (d) in the remaining amount for the financing of UKP's and        
Xenomics' operations. In furtherance thereof, the parties hereby instruct Sommer
& Schneider LLP to disburse funds (not exceeding $280,000 in the aggregate) on  
July 2, 2004 as follows (wire instructions under separate cover):               

   To the order of Panetta Partners Ltd (Redemption)    $ 500,000.00
   Kirkpatrick  & Lockhart, LLP (on account)            $  97,000.00
   Sommer & Schneider LLP (on account)                  $ 109,800.00
        Mayer, Brown, Rowe & Maw LLP                         $  32,000.00 est.
   Townsend and Townsend and Crew                       $  14,938.08
   Zuzana Goldstein                                     $   1,675.00
   Spott, Lucey & Wall (to April 20, 2004)              $   7,518.91
   Glynn Wilson                                         $     996.42
   Samuil Umansky                                       $     800.00
   Anatoly Lichtenstein                                 $  25,000.00
   Joel Baum & Co.                                      $   8,000.00
   Travel and Conference Expense Reimbursement          $  11,200.00

The balance of the proceeds of the private placement will be wired to the       
Xenomics account opened at JPMorgan Chase in New York and Sommer & Schnieder LLP
will provide the parties with a statement of the account.                       

         3. Liabilities. The parties acknowledge and agree that UKP and Xenomics
liabilities as stated in the Exchange Agreement and the Schedule thereto does   
not include unpaid accounting and legal fees and expenses incurred by Xenomics  
or UKP in conjunction with the Exchange, provided that UKP's liabilities for the
Exchange shall not exceed $17,000 more than the amount set forth in the balance 
sheet of UKP as of April 30, 2004 filed with the SEC. UKP agrees to pay such    
transactions costs as provided in Sections 2.3(b) and 2.3(c) above at the       
Closing and, thereafter, upon receipt of respective invoices.                   

    4. UKP Board of Directors and Advisors. The parties agree that the
initial Board of Directors of UKP as of the Closing shall consist of 5 Board    
members and shall include L. David Tomei, Samuil Umansky, Christoph Bruning,    
Donald Picker, and Gary Jacob. The Board will also appoint Gabe Cerrone to be a 
member and Co-Chairman, effective as of his written certification of his        
acceptance of the appointment. UKP shall provide all necessary Board of         
Directors and shareholder resolutions at the Closing to effectuate this         
provision.                                                                      

         5. UKP Officers. The parties agree that officers of UKP and Xenomics as
of the Closing shall be as follows:                                             

President and CSO:        Samuil Umansky    
Secretary:                Christoph Bruning 
Treasurer:                Christoph Bruning 

 UKP and Xenomics shall provide all necessary Board of Directors
resolutions at the Closing to effectuate this provision.                        

6. Miscellaneous                                              

                  6.1 Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of New York applicable to agreements executed and to be performed solely  
within such State without regard to conflicts of laws.                          

                 6.2 Jurisdiction. Any judicial proceeding brought against any
of the parties to this Agreement on any dispute arising out of this Agreement or
any matter related hereto may be brought in the courts of the State of New York,
or in the United States District Court for the Eastern or Southern District of  
New York, and, by execution and delivery of this Agreement, each of the parties 
to this Agreement accepts the exclusive jurisdiction of such courts, and        
irrevocably agrees to be bound by any judgment rendered thereby in connection   
with this Agreement. The prevailing party or parties in any such litigation     
shall be entitled to receive from the losing party or parties all costs and     
expenses, including reasonable counsel fees, incurred by the prevailing party or
parties.                                                                        

                  6.3 Captions. The Article and Section captions used herein for
reference purposes only, and shall not in any way affect the meaning or         
interpretation of this Agreement.                                               

              6.4 Notices. Any notice or other communication required or
permitted hereunder shall be deemed sufficiently given when delivered in person,
one business day after delivery to a reputable overnight carrier, four business 
days if delivered by registered or certified mail, postage prepaid or when sent 
by telecopy with a copy following by hand or overnight carrier or mailed,       
certified or registered mail, postage prepaid, addressed as follows:            

If to UKP:                                  

            Used Kar Parts, Inc.
                     3 West 57th Street, 8th Floor
           New York, NY  10019
       Attn: President

with a required copy to:                    

               Herbert H. Sommer, Esq.
              Sommer & Schneider LLP
                     595 Stewart Avenue, Suite 710
              Garden City, NY  11530

If to Xenomics:                             

Xenomics
          6034 Monterey Ave.
          Richmond, CA 94805
       Attn: President

with a required copy to:                    

          Dirk Michels, Esq.
                  Kirkpatrick & Lockhart LLP
                           Four Embarcadero Center, 10th Floor
                San Francisco, CA  94111

If to the Shareholders:                     

      L. David Tomei
              3018 California Street
                San Francisco, CA  94115

      Samuil Umansky
            6034 Monterey Avenue
           Richmond, CA  94805

           Hovsep S. Melkonyan
         950 Evelyn Avenue
         Albany, CA  94706

               Anatoly V. Lichtenstein
                              32 Kashirskoe shosse, Bldg 3, Apt. 229
              Moscow, Russia  115522

        Kathryn P. Wilke
         769 Horizon Drive
           Martinez, CA  94553

      6.5 Parties in Interest. With the exception of the
Shareholders' right to request transfer of the Core Technology to and to        
effectuate the acquisition of the Core Technology through an assignee, this     
Agreement may not be transferred, assigned, pledged or hypothecated by any party
hereto, other than by operation of law. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,    
executors, administrators, successors and assigns.                              

              6.6 Counterparts. This Agreement may be executed in two or
more counterparts and delivered by facsimile all of which taken together shall  
constitute one instrument. The Parties agree that a photocopy of such facsimile 
may also be treated by the Parties as a duplicate original.                     

         6.7 Entire Agreement. The Exchange Agreement and this
Agreement, including the exhibits hereto and the other documents referred to    
herein which form a part hereof, contain the entire understanding of the parties
hereto with respect to the subject matter contained herein and therein. This    
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.                                            

                 6.8 Amendments. This Agreement may not be changed orally, but
only by an agreement in writing signed by Company and the Shareholders.         

             6.9 Severability. In case any provision in this Agreement
shall be held invalid, illegal or unenforceable, the validity, legality and     
enforceability of the remaining provisions hereof will not in any way be        
affected or impaired thereby.                                                   

                  6.10 Third Party Beneficiaries. Each party hereto intends that
this Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereof.                             

[SIGNATURE PAGE FOLLOWS]

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    IN WITNESS WHEREOF, undersigned parties have executed this Closing
Agreement, as of the day and year first above written.                          

"UKP:"                                           Used Kar Parts, Inc.,    
                                             a Florida corporation

                                                   By:  /s/ Christoph Bruening
                                                       -------------------------
                                                      Name: Christoph Bruening
                                              Title: President

"XENOMICS:"                                      Xenomics                 
                                                a California corporation

                                               By:  /s/ Samuil Umansky
                                                       -------------------------
                                             Name:  Samuil Umansky
                                        Title: President

"SHAREHOLDERS:"                                  /s/ L. David Tomei       
                                               -------------------------
                                      L. David Tomei

                                          /s/ Samuil Umansky
                                               -------------------------
                                      Samuil Umansky

                                               /s/ Hovsep S. Melkonyan
                                               -------------------------
                                           Hovsep S. Melkonyan

                                                   /s/ Anatoly V. Lichtenstein
                                                   -----------------------------
                                               Anatoly V. Lichtenstein

                                                /s/ Kathryn P. Wilke
                                               -------------------------
                                          Kathryn P. Wilke

6 

EX-2.2
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 EXHIBIT 1

UKP CAPITALIZATION TABLE

7 

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘8-K’ Filing		Date		First		Last			Other Filings
Filed on:		7/19/04
For Period End:		7/2/04		1					8-K/A
		6/24/04		1
		4/30/04		1					10QSB
		4/20/04		1
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