PLAN AND AGREEMENT OF REORGANIZATION
AND SHARE EXCHANGE
DATED AS OF
APRIL 4, 2013
BY AND AMONG
LEGACY TECHNOLOGY HOLDINGS, INC.
AND
GENOMIC INTEGRATED WELLNESS SYSTEMS, INC.
AND
ITS SOLE SHAREHOLDER
PLAN & AGREEMENT OF REORGANIZATION AND SHARE EXCHANGE AGREEMENT
This AGREEMENT, dated as of April 4, 2013, (the "Agreement"), by and
among Legacy Technology Holdings, Inc., a Colorado Corporation, ("LTH"), and
Acquiree of Genomics Integrated Wellness Systems, Inc. ("GIWS" or "Acquiree"),
and the Sole GIWS shareholder.
WHEREAS, the Board of Directors of LTH and Acquiree, respectively, have
each approved, as being in the best interest of the respective entities and
their stockholders, the Acquisition of GIWS by LTH, in accordance with the
applicable provisions of the Colorado Business Corporation Laws;
WHEREAS, LTH, Shareholders and Acquiree desire to make certain
representations, warranties, covenants and agreements in connection with the
Acquisition and also to prescribe various conditions to the Exchange; and
WHEREAS, this Agreement is intended to accomplish a tax free
acquisition pursuant to Section 368 of the Internal Revenue Code for benefit of
Acquiree's Shareholders.
WHEREAS, this Agreement is intended to set for the terms upon which
GIWS will be acquired by LTH from Shareholders.
WHEREAS, GIWS is the holder of a worldwide exclusive license to certain
copyrighted algorithms for application to healthcare.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties do
hereby agree as follows:
ARTICLE I
THE CONSIDERATION
SECTION 1.01 Consideration; Effective Time
The Acquisition shall become effective upon the delivery of the GIWS
certificates duly executed representing 100% of Acquiree's outstanding shares of
common and preferred stock and delivery of the following consideration:
22,527,088 shares of common stock of LTH, shall be issued
pursuant hereto to the Sole Shareholder of GIWS as set forth
on Schedule 1.01.
SECTION 1.02 The Acquisition.
At the Effective Time and by virtue of the Exchange, the GIWS shall be
conveyed to LTH which shall be the sole owning entity of the GIWS ,
SECTION 1.03 Conversion of Securities.
As of the Effective Time, by virtue of the Exchange: The GIWS common
shares shall be deemed exchanged for common shares, (on a when issued basis) of
LTH, pursuant to the Schedule 1.01. GIWS common shares shall be conveyed to LTH
by Acquirees shareholders, in consideration for the right to receive 22,527,088
of the LTH Common Shares, to be issued in consideration therefore in accordance
with Section 1.01 constituting 80% of the total outstanding shares of LTH on the
date of closing.
SECTION 1.04 Exchange Procedures.
(a) As soon as practicable after the execution hereof, LTH shall provide to
Acquiree a letter of transmittal and Exchange Agreement in appropriate and
customary form with such provisions as the board of directors of LTH after the
Exchange may reasonably specify. Upon surrender of a Certificate or Note for
cancellation to LTH, together with such letter of transmittal, duly and properly
executed, the holder of such Certificate or Note shall be entitled to receive in
exchange therefore a certificate representing an equal number of shares of LTH
Common Stock as represented Acquirer's shares represented by the certificate,
and the Certificates so surrendered shall be canceled. Until surrendered as
contemplated by this Section 1.04, each Certificate shall, at and after the
Effective Time, be deemed to represent only the right to receive, upon surrender
of such Certificate, LTH Common shares as contemplated by this Section 1.04,
together with any dividends and other distributions payable as provided in
Section 1.05 hereof, and the holders thereof shall have no rights whatsoever as
stockholders of LTH. Shares of LTH Common issued in the Exchange shall be
issued, and be deemed to be outstanding, as of the Effective Time. LTH shall
cause all such shares of LTH Common issued pursuant to the Exchange to be duly
authorized, validly issued, fully paid and non-assessable and not subject to
preemptive rights.
(b) If any certificate representing shares of LTH Common is to be issued in a
name other than that in which the Certificate surrendered in exchange therefore
is registered, it shall be a condition of such exchange that the Certificate so
surrendered shall be properly endorsed and otherwise in proper form for transfer
and that the person requesting such exchange shall pay any transfer or other
taxes required by reason of the issuance of certificates for such shares of LTH
Common in a name other than that of the registered holder of the Certificate so
surrendered.
SECTION 1.05. Dividends and Distributions.
No dividends or other distributions declared or made with respect to
LTH Common Stock with a record date on or after the Effective Time shall be paid
to the holder of a Certificate entitled by reason of the Exchange to receive
certificates representing LTH Common Stock until such holder surrenders such
Certificate as provided in Section 1.04 hereof. Upon such surrender, there shall
be paid by LTH to the person in whose name certificates representing shares of
LTH Common Stock shall be issued pursuant to the terms of this Article I (i) at
the time of the surrender of such Certificate, the amount of any dividends and
other distributions theretofore paid with respect to that number of whole shares
of such LTH Common Stock represented by such surrendered Certificate pursuant to
the terms of this Article I, which dividends or other distributions had a record
date on or after the Effective Time and a payment date prior to such surrender
and (ii) at the appropriate payment date, the amount of dividends and other
distributions payable with respect to that number of whole shares of LTH Common
Stock represented by such surrendered Certificate pursuant to the terms of this
Article I, which dividends or other distributions have a record date on or after
the Effective Time and a payment date subsequent to such surrender.
ARTICLE II
THE CLOSING
SECTION 2.01 Closing.
Unless this Agreement shall have been terminated and the transactions
herein contemplated shall have been abandoned pursuant to Article VIII, and
subject to the satisfaction or waiver of the conditions set forth in Article
VI,I the closing of the Acquisition (the "Closing") shall take place as soon as
reasonably practicable (but in no event on written notice of less than two (2)
business days) after all of the conditions set forth in Article VII are
satisfied, but no later than April 30, 2013 or, to the extent permitted
thereunder, waived, or extended, at the offices of Xxxxxxx X. Xxxxxxx, located
at 0000 Xxxxxxx Xxxx, Xxxxxx, XX 00000 or at such other time and place as may be
agreed to in writing by the parties hereto (the date of such Closing being
referred to herein as the "Closing Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LTH
Except as set forth in the applicable section of the disclosure
schedule delivered by LTH to Acquiree prior to the execution of this Agreement
(the "LTH Disclosure Schedule"), LTH represents and warrants to Sellers as
follows:
SECTION 3.01 Organization of LTH; Authority.
LTH is an Entity duly organized, validly existing and in good standing
under the laws of the State of Colorado. LTH has all requisite corporate power
and corporate authority to enter into the transaction documents to which it is a
party, to consummate the transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct its business. Subject to the
receipt of its board of director's approval, the execution, delivery and
performance by LTH of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of LTH, including,
without limitation, the approval of the board of directors of LTH. The
Transaction Documents have been duly executed and delivered by each of LTH and,
assuming that the Transaction Documents constitute a valid and binding
obligation of the other parties thereto, constitute a valid and binding
obligation of LTH, enforceable against LTH in accordance with its terms. LTH has
heretofore delivered or made available to Acquiree complete and correct copies
of the certificate of incorporation and by-laws of LTH, the minute books and
stock transfer records of LTH, as in effect as of the date of this Agreement.
LTH is not in violation of its organizational documents.
SECTION 3.02 Capitalization.
The authorized capital stock of LTH consists of 100,000,000 shares of
LTH Common Stock, and no Preferred Stock, of which 5,631,772 common Shares
(approximately) are outstanding on the date hereof (including shares pending
issuance and or reserved for conversion or settlements pursuant to Board
Minutes.) No other shares of any other class or series of LTH Common Stock or
Preferred or securities exercisable or convertible into or exchangeable for LTH
Common Stock ("LTH Common Stock Equivalents") are authorized, issued or
outstanding. The outstanding shares of LTH Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable and were not
issued in violation of, and are not subject to, any preemptive, subscription or
similar rights. To LTH's knowledge, none of the outstanding shares of LTH Common
Stock was issued in violation of any Law, including without limitation, federal
and state securities laws. There are no outstanding warrants, options,
subscriptions, calls, rights, agreements, convertible or exchangeable securities
or other commitments or arrangements relating to the issuance, sale, purchase,
return or redemption, and, to LTH's knowledge, voting or transfer of any shares,
whether issued or unissued, of LTH Common Stock, LTH Common Stock Equivalents or
other securities of LTH. On the Closing Date, the shares of LTH Common for which
shares of Sellers Common Stock shall be issued in the Acquisition will have been
duly authorized and, when issued and delivered in accordance with this
Agreement, such shares of LTH Common or Preferred Stock will be validly issued,
fully paid and non-assessable.
SECTION 3.03 No Violation; Consents and Approvals.
The execution and delivery by LTH of the transaction documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not, conflict with or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (a) the terms and conditions
or provisions of the certificate of incorporation or by-laws of LTH (b) any Law
applicable to LTH or the property or assets of LTH, or (c) give rise to any
right of termination, cancellation or acceleration under, or result in the
creation of any lien upon any of the properties of LTH under any contract to
which LTH is a party or by which LTH or any assets of LTH may be bound, except,
in the case of clauses (b) and (c), for such conflicts, violations or defaults
which are set forth in the LTH Disclosure Schedule and as to which requisite
waivers or consents will have been obtained prior to the Closing or which,
individually or in the aggregate, would not have a material adverse effect on
LTH. No Governmental Approval is required to be obtained or made by or with
respect to LTH in connection with the execution and delivery of this Agreement
or the consummation by LTH of the transactions contemplated hereby.
SECTION 3.04 Litigation; Compliance with Laws.
(a) There are: (i) no claims, actions, suits, investigations or proceedings
pending or, to the knowledge of LTH, threatened against, relating to or
affecting LTH, the business, the assets, or any employee, officer, director,
stockholder, or independent contractor of LTH in their capacities as such, and
(ii) no orders of any Governmental Entity or arbitrator outstanding against LTH,
the business, the assets, or any employee, officer, director, stockholder, or
independent contractor of LTH in their capacities as such, or that could prevent
or enjoin, or delay in any respect, consummation of the transactions
contemplated hereby.
(b) LTH has complied and is in compliance in all material respects with all laws
applicable to LTH, its business or its assets. Neither LTH has received notice
from any Governmental Entity or other Person of any material violation of law
applicable to LTH, its business or assets. LTH has obtained and holds all
required Licenses (all of which are in full force and effect) from all
Government Entities applicable to LTH, its business or their assets. No
violations are or have been recorded in respect of any such license and no
proceeding is pending, or, to the knowledge of LTH, threatened to revoke or
limit any such License.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF Acquiree
Except as set forth in the applicable section of the disclosure
schedule delivered by Acquiree to LTH prior to the execution of this Agreement
(the "Acquiree Disclosure Schedule"), Acquiree represents and warrants to LTH as
follows:
SECTION 4.01 Organization of Acquiree; Authority.
Acquiree is a individual duly organized, validly existing and in good
standing under the laws of the State of Colorado and has all requisite
individual power and individual authority to enter into the Transaction
Documents, to consummate the transactions contemplated hereby and thereby, to
own, lease and operate Acquiree properties and to conduct Acquiree business.
Subject to the approval by Acquiree, the execution, delivery and performance by
Acquiree of the Transaction Documents and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
action on the part of Acquiree, including, without limitation, the approval of
Acquiree. The Transaction Documents have been duly executed and delivered by
Acquiree and, assuming that the Transaction Documents constitute a valid and
binding obligation of LTH, constitute a valid and binding obligation of
Acquiree. Acquiree is duly qualified or licensed to do business as a foreign
Entity and are in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification necessary, except where the failure to obtain such
qualification or license would not, individually or in the aggregate, have a
Acquiree Material Adverse Effect on Acquiree. Acquiree has herewith delivered or
made available to LTH complete and correct copies of GIWS, as in effect as of
the date of this Agreement. Acquiree is not in violation of its organizational
documents.
SECTION 4.02 Capitalization.
(a) To Acquiree 's knowledge, none of the GIWS shares were was issued in
violation of any Law, including, without limitation, state and federal
securities laws. There are no Liens on or with respect to GIWS
(b) . There are no outstanding: (i) securities convertible into or
exchangeable for GIWS ; (ii) options, warrants or other rights to purchase or
subscribe for GIWS ; or (iii) contracts, commitments, agreements, understandings
or arrangements of any kind relating to GIWS , any such convertible or
exchangeable securities or any such options, warrants or rights. There is no
outstanding right, option or other agreement of any kind to purchase or
otherwise to receive from Acquiree, any ownership shares in GIWS , and there is
no outstanding right or security of any kind convertible into such ownership
shares. To Acquiree 's knowledge, there are no voting trusts, proxies or other
similar agreements or understandings with respect to GIWS . There are no
obligations, contingent or otherwise, of Acquiree to repurchase, redeem or
otherwise acquire any GIWS or to provide funds to or make any investment (in the
form of a loan, capital contribution or otherwise) in any other Person. There
are no accrued and unpaid dividends with respect to any outstanding shares of
any GIWS .
SECTION 4.03 No Violation; Consents and Approvals.
The execution and delivery by Acquiree of the Transaction Documents
does not, and the consummation of the transactions contemplated hereby and
thereby and compliance with the terms hereof and thereof will not conflict with,
or result in any violation of or default (or an event which, with notice or
lapse of time or both, would constitute a default) under, (a) the terms and
conditions or provisions of Acquiree, (b) any Laws applicable to Acquiree or the
property or assets of GIWS, or (c) give rise to any right of termination,
cancellation or acceleration under, or result in the creation of any Lien upon
GIWS under, any Contracts to which GIWS is a party or by which GIWS or any of
its assets may be bound, except, in the case of clauses (b) and (c), for such
conflicts, violations or defaults as to which requisite waivers or consents will
have been obtained prior to the Closing or which, individually or in the
aggregate, would not have an GIWS Material Adverse Effect. No Governmental
Approval is required to be obtained or made by or with respect to GIWS in
connection with the execution and delivery of this Agreement or the consummation
by Acquiree of the transactions contemplated hereby, except where the failure to
obtain such Governmental Approval would not, individually or in the aggregate,
have a Material Adverse Effect on GIWS .
SECTION 4.04 Litigation; Compliance with Laws.
(a) Except as would not have a Material Adverse Effect on GIWS , there
are: (i) no claims, actions, suits, investigations or proceedings pending or, to
the knowledge of Acquiree, threatened against, relating to or affecting GIWS,
its business, its assets, or any employee, officer, director, stockholder, or
independent contractor of GIWS in their capacities as such, and (ii) no orders
of any Governmental Entity or arbitrator are outstanding against GIWS , its
business, its assets, or any employee, officer, director, stockholder, or
independent contractor of GIWS in their capacities as such, or that could
prevent or enjoin, or delay in any respect, consummation of the transactions
contemplated hereby. The Acquiree Disclosure Schedule shall include a
description of all claims, actions, suits, investigations or proceedings
involving GIWS, its business, its assets, or any employee, officer, director,
stockholder or independent contractor of GIWS in their capacities as such.
(b) Except as would not have an Material Adverse Effect, Acquiree has
complied and is in compliance in all material respects with all Laws applicable
to Acquiree, its business or its assets. GIWS has not received notice from any
Governmental Entity or other Person of any material violation of Law applicable
to it, its business or its assets. Acquiree has obtained and holds all required
Licenses (all of which are in full force and effect) from all Government
Entities applicable to it, its business or its assets. No violations are or have
been recorded in respect of any such License and no proceeding is pending, or,
to the knowledge of Acquiree threatened to revoke or limit any such License.
SECTION 4.05 Financial Statements.
Acquiree shall not provide, prior to closing hereunder, audited
financial statements in accordance with GAAP accounting consistently applied,
complete and true and accurate in all respects, disclosing all liabilities, and
assets of GIWS, and shall provide all books and records necessary to complete
all filings in accordance with SEC Rules and Regulations.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF
BUSINESS PENDING THE EXCHANGE
SECTION 5.01 Conduct of the Business Pending the Exchange.
(a) During the period from the date of this Agreement and continuing
until the Effective Time, LTH agrees as to itself and the LTH Subsidiaries, that
LTH shall not, and shall cause the LTH Subsidiaries not to, engage in any
business whatsoever other than in connection with the consummation of the
transactions contemplated by this Agreement, and shall use commercially
reasonable efforts to preserve intact its business and assets, maintain its
assets in good operating condition and repair (ordinary wear and tear excepted),
retain the services of its officers, employees and independent contractors and
use reasonable commercial efforts to keep in full force and effect liability
insurance and bonds comparable in amount and scope of coverage to that currently
maintained with respect to its business, unless, in any case, Acquiree consents
otherwise in writing.
(b) During the period from the date of this Agreement and continuing
until the Effective Time, Acquiree agrees that, other than in connection with
the consummation of the transactions contemplated hereby, it shall carry on its
business only in the ordinary course of business consistent with past practice,
use commercially reasonable efforts to preserve intact its business and assets
and use reasonable commercial efforts to keep in full force and effect liability
insurance and bonds comparable in amount and scope of coverage to that currently
maintained with respect to its business, unless, in any case, LTH consents
otherwise in writing. Additionally, during the period from the date of this
Agreement and continuing until the Effective Time, Acquiree agrees that, other
than in connection with the consummation of the transaction contemplated hereby,
Acquiree shall carry on its business only in the ordinary course of business
consistent with past practice, use commercially reasonable efforts to preserve
intact its business and assets and use reasonable commercial efforts to keep in
full force and effect liability insurance and bonds comparable in amount and
scope of coverage to that currently maintained with respect to its business,
unless, in any case, LTH consents otherwise in writing. During the period from
the date of this Agreement and continuing until the Effective Time, Acquiree and
LTH agrees as to itself and, with respect to LTH, that except as expressly
contemplated or permitted by this Agreement, or to the extent that the other
party shall otherwise consent in writing:
(1) It shall not amend or propose to amend its certificate of incorporation or
by-laws or equivalent organizational documents except as contemplated in this
Agreement.
(2) It shall not, nor in the case of LTH shall it permit the LTH Subsidiaries
to, issue, deliver, sell, redeem, acquire, authorize or propose to issue,
deliver, sell, redeem, acquire or authorize, any shares of its capital stock of
any class or any securities convertible into, or any rights, warrants or options
to acquire, any such shares or convertible securities or other ownership of
equity, provided that: (1) LTH shall be permitted to issue the shares of LTH
Common Stock to be issued to Acquiree hereunder, and (2) each party shall be
permitted to issue shares of its common stock pursuant to the exercise of stock
options, warrants and other convertible securities outstanding as of the date
hereof and listed on the Acquiree Disclosure Schedule or the LTH Disclosure
Schedule, as the case may be:
(3) It shall not, nor in the case of LTH shall it permit any of the LTH
Subsidiaries to, nor shall it propose to: (i) declare, set aside, make or pay
any dividend or other distribution, payable in cash, stock, property or
otherwise, with respect to any of its capital stock or (ii) except with respect
to the Reverse Stock Split, reclassify, combine, split, subdivide or redeem,
purchase or otherwise acquire, directly or indirectly, any of its capital stock.
(4) Other than dispositions in the ordinary course of business consistent with
past practice which would not cause a LTH Material Adverse Effect or a . GIWS
Material Adverse Effect (as applicable), individually or in the aggregate, to it
and its subsidiaries, taken as a whole, it shall not, nor shall it permit any of
its subsidiaries to, sell, lease, encumber or otherwise dispose of, or agree to
sell, lease (whether such lease is an operating or capital lease), encumber or
otherwise dispose of its assets.
(5) It shall promptly advise the other party hereto in writing of any change in
the condition (financial or otherwise), operations or properties, businesses or
business prospects of such party or any of its subsidiaries which would result
in a LTH Material Adverse Effect or . GIWS Material Adverse Effect, as the case
may be.
(6) It shall not permit to occur, any (1) change in accounting principles,
methods or practices, investment practices, claims, payment and processing
practices or policies regarding intercompany transactions, (2) incurrence of
Indebtedness or any commitment to incur Indebtedness, any incurrence of a
contingent liability, Contingent Obligation or other liability of any type,
except for, with respect to . GIWS, other than obligations related to the
Exchange of Inventory in the ordinary course of business consistent with past
practices, (3) cancellation of any debt or waiver or release of any contract,
right or claim, except for cancellations, waivers and releases in the ordinary
course of business consistent with its past practice which do not exceed $5,000
in the aggregate, (4) amendment, termination or revocation of, or a failure to
perform obligations or the occurrence of any default under, any contract or
agreement (including, without limitation, leases) to which it is or, as of April
30, 2013, was a party, other than in the ordinary course of business consistent
with past practice, or any License, (5) execution of termination, severance or
similar agreements with any of its officers, directors, employees, agents or
independent contractors or (6) entering into any leases of real property or
agreement to acquire real property.
SECTION 5.02 No Action.
During the period from the date of this Agreement and continuing until
the Effective Time, Acquiree and LTH agrees as to itself and, with respect to
LTH, that it shall not, and Acquiree shall not, take or agree or commit to take
any action, (i) that is reasonably likely to make any of its representations or
warranties hereunder inaccurate; or (ii) that is prohibited pursuant to the
provisions of this Article V.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01 Access to Information.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, each party shall give the other party and its
respective counsel, accountants, representatives and agents, and with respect to
GIWS, it shall provide to LTH with respect to . GIWS, full access, upon
reasonable notice and during normal business hours, to such party's and Acquiree
's facilities and the financial, legal, accounting and other representatives of
such party and Acquiree with knowledge of the business and the assets of such
party and Acquiree and, upon reasonable notice, shall be furnished all relevant
documents, records and other information concerning the business, finances and
properties of such party and its subsidiaries and Acquiree that the other party
and its respective counsel, accountants, representatives and agents, may
reasonably request. No investigation pursuant to this Section 6.01 shall affect
or be deemed to modify any of the representations or warranties hereunder or the
condition to the obligations of the parties to consummate the Exchange; it being
understood that the investigation will be made for the purposes among others of
the board of directors of each party determining in its good faith reasonable
business judgment the accuracy of the representations and warranties of the
other party. In the event of the termination of this Agreement, each party, if
so requested by the other party, will return or destroy promptly every document
furnished to it by or on behalf of the other party in connection with the
transactions contemplated hereby, whether so obtained before or after the
execution of this Agreement, and any copies thereof (except for copies of
documents publicly available) which may have been made, and will use reasonable
efforts to cause its representatives and any representatives of financial
institutions and investors and others to whom such documents were furnished
promptly to return or destroy such documents and any copies thereof any of them
may have made. It is hereby acknowledged the LTH shall have filed all of its
financial reports with the SEC prior to closing hereunder which shall constitute
delivery of the same to GIWS.
SECTION 6.02 No Shop; Exchange Proposals.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, neither Acquiree nor LTH shall, nor shall they
authorize or permit any of their respective officers, directors or employees,
Acquiree employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it to, solicit, initiate or
encourage (including by way of furnishing information), or take any other action
to facilitate, any inquiries or the making of any proposal which constitutes, or
may reasonably be expected to lead to, any Takeover Proposal (as hereinafter
defined), or negotiate with respect to, agree to or endorse any Takeover
Proposal (except in any case if the board of directors or special committee of
LTH or Acquiree, as the case may be, determines in good faith, based upon the
written opinion of its outside legal counsel, that the failure to do so would
constitute a breach of the fiduciary duties of the LTH' or Acquiree under
applicable law). Acquiree shall promptly advise LTH and LTH shall promptly
advise Acquiree, as the case may be, orally and in writing of any such inquiries
or proposals and shall also promptly advise LTH or Acquiree, as the case may be,
of any developments or changes regarding such inquiries or proposals. Acquiree
and LTH shall immediately cease and cause to be terminated any existing
discussions or negotiations with any persons (other than Acquiree and LTH)
conducted heretofore with respect to any Takeover Proposal. Acquiree and LTH
agree not to release (by waiver or otherwise) any third party from the
provisions of any confidentiality or standstill agreement to which Acquiree or
LTH is a party.
SECTION 6.03 Legal Conditions to Exchange; Reasonable Efforts.
Acquiree, LTH shall take all reasonable actions necessary to comply
promptly with all legal requirements which may be imposed on itself with respect
to the Exchange and will promptly cooperate with and furnish information to each
other in connection with any such requirements imposed upon any of them or any
of their Subsidiaries in connection with the Exchange. Acquiree and LTH will
take all reasonable actions necessary to obtain (and will cooperate with each
other in obtaining) any consent, authorization, order or approval of, or any
exemption by, any Governmental Entity or other public or private third party,
required to be obtained or made by Acquiree or LTH in connection with the
Exchange or the taking of any action contemplated thereby or by this Agreement.
SECTION 6.04 Certain Filings.
Each party shall cooperate with the other in (a) connection with the
preparation of an announcement or required filings, (b) determining whether any
action by or in respect of, or filing with, any governmental body, agency,
official or authority is required, or any actions, consents, approvals or
waivers are required to be obtained from parties to any material contracts, in
connection with the consummation of the transactions contemplated by this
Agreement and (c) seeking any such actions, consents, approvals or waivers or
making any such filings, furnishing information required in connection therewith
or with the 8-K and seeking timely to obtain any such actions, consents,
approvals or waivers. Each party shall consult with the other in connection with
the foregoing and shall use all reasonable commercial efforts to take any steps
as may be necessary in order to obtain any consents, approvals, permits or
authorizations required in connection with the Exchange.
SECTION 6.05 Public Announcements and Filings.
Each party shall give the other a reasonable opportunity to comment
upon, and, unless disclosure is required, in the opinion of counsel, by
applicable law, approve (which approval shall not be unreasonably withheld), all
press releases or other public communications of any sort relating to this
Agreement or the transactions contemplated hereby.
SECTION 6.06 Tax Matters.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, without the prior written consent of the other
party or if required in the opinion of counsel, neither LTH nor Acquiree, shall
make or change any election, change an annual accounting period, adopt or change
any accounting method, file any amended Tax Return, enter into any closing
agreement, settle any Tax claim or assessment relating to it, surrender any
right to claim a refund of Taxes, consent to any extension or waiver of the
limitation period applicable to any Tax claim or assessment relating to it, or
take any other action relating to the filing of any Tax Return or the payment of
any Tax.
SECTION 6.07 Supplements to Schedules.
Prior to the Closing, Acquiree will supplement or amend its disclosure
schedule with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such disclosure schedule. No supplement to or amendment of
the disclosure schedule made pursuant to this Section 6.07 shall be deemed to
cure any breach of any representation or warranty made in this Agreement unless
the other parties hereto specifically agree thereto in writing. Prior to the
Closing, LTH may supplement or amend its disclosure schedule with respect to any
matter which, if existing or occurring at the date of this Agreement, would have
been required to be set forth or described in such disclosure schedule. No
supplement to or amendment of the disclosure schedule made pursuant to this
Section 6.07 shall be deemed to cure any breach of any representation or
warranty made in this Agreement unless the other parties hereto specifically
agree thereto in writing.
SECTION 6.08 LTH Liabilities.
At Closing LTH will have certain liabilities and such liabilities
shall, in the future, possibly be negotiated as a conversion to common stock.
Acquiree and Acquiree's shareholders joining herein hereby agree to allow
conversion of debt to equity at the market price. LTH shall also allow
conversion to stock those legal fees accrued in the past and incurred for this
transaction which may be converted to shares pursuant to form S-8 or S-1 as may
be first filed, in increments, after the completion of the transaction herein
contemplated.
SECTION 6.09 Technology.
GIWS and its Sole Shareholder warrant and represent that no other
person or entity has any valid claim to the GIWS technology or to shares in GIWS
whatsoever.
ARTICLE VII
CONDITIONS OF THE EXCHANGE
SECTION 7.01 Conditions to Each Party's Obligation to Effect the Exchange.
The respective obligations of each party to effect the Exchange and the
other transactions contemplated herein shall be subject to the satisfaction at
or prior to the Effective Time of the following conditions, any or all of which
may be waived, in whole or in part to the extent permitted by applicable law:
(a) Acquiree Approval. This Agreement shall have been duly adopted
and agreed by Acquiree's shareholders, through an Exchange Agreement, Consent
and Representations signed by Acquiree.
(b) No Injunctions or Restraints. No governmental authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, execution order, decree, injunction or
other order (whether temporary, preliminary or permanent) which is in effect and
which materially restricts, prevents or prohibits consummation of the Exchange
or any transaction contemplated by this Agreement; provided, however, that the
parties shall use their reasonable commercial efforts to cause any such decree,
judgment, injunction or other order to be vacated or lifted.
SECTION 7.02 Additional Conditions of Obligations of LTH.
The obligations of LTH to effect the Exchange and the other
transactions contemplated by this Agreement are also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by LTH:
(a) Representations and Warranties. The representations and warranties
of GIWS and its shareholders set forth in this Agreement shall be true and
correct in all material respects (except for those representations and
warranties qualified by materiality, which shall be true and correct in all
respects) as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, except as otherwise contemplated by this
Agreement.
(b) Performance of Obligations of GIWS. Acquiree and Acquirees
shareholders shall have performed in all material respects all conditions,
covenants, agreements and obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
(c) No Material Adverse Change to GIWS. From the date hereof through
and including the Effective Time, no event shall have occurred which would have
an GIWS Material Adverse Effect.
(d) Audited GAAP Financial Statements of LTH pursuant to SEC Rules and
Regulations through March 31, 2013.
(e) Third Party Consents. Acquiree shall have obtained all consents and
approvals, required to be obtained prior to or at the Closing Date, from third
parties or governmental and regulatory authorities in connection with the
execution, delivery and performance by Acquiree of this Agreement and the
consummation of the transactions contemplated hereby.
(f) No Governmental Order or Other Proceeding or Litigation. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(g) Deliveries. At the Closing, Acquiree shall have delivered to LTH or
LTH shall have otherwise obtained:
(1) true, correct and complete copies of (1) the certificate of
organization or other charter document, as amended to date, of Acquiree
as filed with, the Secretary of State or other appropriate official of
the state or other jurisdiction of organization of Acquiree, (2) the
by-laws or other similar organizational document of Acquiree, and (3)
resolutions duly and validly adopted by the Board of Directors and the
stockholders of Acquiree evidencing the authorization of the execution
and delivery of this Agreement, the other Transaction Documents to
which it is a party and the consummation of the transactions
contemplated hereby and thereby, in each case, accompanied by a
certificate of the Secretary or Assistant Secretary of Acquiree, dated
as of the Closing Date, stating that no amendments have been made
thereto from the date thereof through the Closing Date; and
(2) Audited GAAP Financial Statements of GIWS pursuant to SEC Rules
and Regulations through March 31, 2013.
(3) GIWS stock certificates of Acquiree constituting 100% of the issued
and outstanding stock and notes of Acquiree.
(4) Acquiree shall have full assignment of all intellectual property
and patents involving GIWS its algorithms and technology and know-how,
from Acquiree, and any associates, free and clear of any liens claims
or encumbrances.
SECTION 7.03 Additional Conditions of Obligations of Acquiree.
The obligation of Acquiree to effect the Exchange and the other
transactions contemplated by this Agreement is also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by Acquiree :
(a) Representations and Warranties. The representations and warranties
of LTH set forth in this Agreement shall be true and correct in all material
respects (except for those representations and warranties qualified by
materiality) as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date, except as otherwise contemplated by
this Agreement.
(b) Performance of Obligations of LTH. LTH shall have performed in all
material respects all conditions, covenants, agreements and obligations required
to be performed by them under this Agreement at or prior to the Closing Date.
(c) No Material Adverse Change to LTH. From the date hereof through and
including the Effective Time, no event shall have occurred which would have a
LTH Material Adverse Effect.
(d) No Governmental Order or Other Proceeding or Litigation. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(e) Deliveries. At the Closing, LTH shall have delivered to Acquiree:
(1) The share certificates specified in Section 1.01(a), issued to
Acquiree's shareholders, in proper amounts, pursuant to a schedule
provided by Acquiree.
(2) Board Resolutions appointing 2 new officers of Acquiree's choice, or
an election of new directors by the shareholders.
(3) Resignations of existing officers effective at closing.
(4) Acquiree shall assume the executive positions of COO (Chief Operating
Officer), CTO (Chief Technical Officer) and Chairman of the Board of
Directors
(5) Appointments of new Directors of Acquiree's choice, subject to
compliance with the Notice Requirements of Rule 14f - 1 of the
Securities Exchange Act.
ARTICLE VIII
TERMINATION
SECTION 8.01 Termination.
This Agreement may be terminated at any time prior to the Effective
Time, by LTH or under the terms as set forth below:
(a) by mutual consent of the boards of directors of LTH and Acquiree;
or
(b) by LTH upon written notice to Acquiree, if: (A) any condition to
the obligation of LTH to close contained in Article VII hereof has not been
satisfied by 60 days after date hereof (the "End Date") (unless such failure is
the result of LTH's breach of any of its representations, warranties, covenants
or agreements contained herein) or (B) the LTH stockholders do not approve the
Exchange; or
(c) by Acquiree upon written notice to LTH, if: (A) any condition to
the obligation of Acquiree to close contained in Article VII hereof has not been
satisfied by the End Date (unless such failure is the result of Acquiree 's
breach of any of its representations, warranties, covenants or agreements
contained herein); or (B) the Acquiree does not approve the Exchange; or
(d) by LTH if the board of directors or special committee of LTH
determines in good faith, based upon the written opinion of its outside legal
counsel, that the failure to terminate this Agreement would constitute a breach
of the fiduciary duties of the LTH board of directors or special committee to
the LTH stockholders under applicable law; or
SECTION 8.02 Fees, Costs and Expenses.
Whether or not the Exchange is consummated, all legal costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by LTH
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, covenants, agreements, and warranties of the parties
set forth in this Agreement shall survive the Closing. Following the Closing
Date with respect to any particular representation or warranty, any party hereto
shall have the responsibility to complete any duties or deliver any documents
necessary to complete, fulfill or comply with respect to such representation and
warranty, within a reasonable time after written demand..
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices.
All notices, requests and other communications to any party hereunder
shall be in writing (including telecopy, telex or similar writing) and shall be
deemed given or made as of the date delivered, if delivered personally or by
telecopy (provided that delivery by telecopy shall be followed by delivery of an
additional copy personally, by mail or overnight courier), one day after being
delivered by overnight courier or three days after being mailed by registered or
certified mail (postage prepaid, return receipt requested), to the parties at
the following addresses:
if to LTH to: Legacy Technology Holdings, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
if to Acquiree or its Shareholders:
Genomics Integrated Wellness Systems, Inc.
0000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
or such other address or telex or telecopy number as such party may hereafter
specify for the purpose by notice to the other party hereto.
SECTION 10.02 Amendment; Waiver.
This Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, provided that
the same are in writing and signed by or on behalf of the parties hereto.
SECTION 10.03 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no party shall assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the written consent of the
other party hereto.
SECTION 10.04 Governing Law.
This Agreement shall be construed in accordance with and governed by
the law of the State of Colorado without regard to principles of conflict of
laws.
SECTION 10.05 Waiver of Jury Trial.
Each party hereto hereby irrevocably and unconditionally waives any
rights to a trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
SECTION 10.06 Consent to Jurisdiction.
Each of the Parties hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of any court of the State of Colorado or any federal
court sitting in Colorado for purposes of any suit, action or other proceeding
arising out of this Agreement and the Transaction Documents (and agrees not to
commence any action, suit or proceedings relating hereto or thereto except in
such courts). Each of the Parties agrees that service of any process, summons,
notice or document pursuant to the laws of the State of Colorado and on the
individuals designated in Section 10.01 shall be effective service of process
for any action, suit or proceeding brought against it in any such court.
SECTION 10.07 Counterparts; Effectiveness.
Facsimile transmissions of any executed original document and/or
retransmission of any executed facsimile transmission shall be deemed to be the
same as the delivery of an executed original. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 10.08 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership.
Except as expressly provided herein, this Agreement (including the
documents and the instruments referred to herein) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. Except as
expressly provided herein, this Agreement is not intended to confer upon any
person other than the parties hereto, any rights or remedies hereunder. The
parties hereby acknowledge that no person shall have the right to acquire or
shall be deemed to have acquired shares of common stock of the other party
pursuant to the Exchange until consummation thereof.
SECTION 10.09 Headings.
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
SECTION 10.10 No Strict Construction.
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Agreement, this Agreement
shall be construed as if drafted jointly by the parties thereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
SECTION 10.11 Severability.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
SECTION 10.12 Errors and Omissions.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
SECTION 10.12 Force majeure.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
ARTICLE XI
DEFINITIONS
"Affiliate" shall mean (a) with respect to an individual, any member of
such individual's family including lineal ancestors and descendents; (b) with
respect to an entity, any officer, director, stockholder, partner, manager,
investor or holder of an ownership shares of or in such entity or of or in any
Affiliate of such entity; and (c) with respect to a Person, any Person which
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with such Person or entity.
"Acquiree" shall have the meaning set forth in the preamble to this
Agreement.
"Acquiree" shall have the meaning set forth in the recitals to this
Agreement, and elsewhere GIWS Material Adverse Effect" shall mean an event or
change, individually or in the aggregate with other events or changes, that
could reasonably be expected to have a material adverse effect on (a) the
business, properties, prospects, condition (financial or otherwise) or results
of operations of GIWS taken as a whole (other than those events, changes or
effects resulting from general economic conditions or the industry in which
Acquiree is engaged generally) or (b) the ability of Acquiree to consummate the
transactions contemplated hereby.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Certificates" shall have the meaning set forth in Section 1.04 of this
Agreement.
"Closing" shall have the meaning set forth in Section 2.01 of this
Agreement.
"Closing Date" shall have the meaning set forth in Section 2.01 of this
Agreement.
"Code" shall have the meaning set forth in the recitals of this
Agreement.
"Contingent Obligation" as to any Person shall mean the undrawn face
amount of any letters of credit issued for the account of such Person and shall
also mean any obligation of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness, leases, dividends, letters of credit or
other obligations ("Primary Obligations") of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such Primary Obligation or any property constituting direct or
indirect security therefore, (b) to advance or supply funds (i) for the purchase
or payment of any such Primary Obligation or (ii) to maintain working capital or
equity capital of the Primary Obligor or otherwise to maintain the financial
condition or solvency of the Primary Obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the obligee under
any such Primary Obligation of the ability of the Primary Obligor to make
payment of such Primary Obligation, or (d) otherwise to assure or hold harmless
the obligee under such Primary Obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.
"Contracts" shall mean all contracts, leases, subleases, notes, bonds,
mortgages, indentures, Permits and Licenses, non-competition agreements, joint
venture or partnership agreements, powers of attorney, purchase orders, and all
other agreements, arrangements and other instruments, in each case whether
written or oral, to which such Person is a party or by which any of them or any
of its assets are bound.
"Effective Time" shall be the date all conditions and performance
hereunder has been completed but no later than April 30, 2013.
"End Date" shall have the meaning set forth in Section 8.01 of this
Agreement.
"Exchange" shall have the meaning set forth in the recitals of this
Agreement.
"LTH" shall have the meaning set forth in the preamble to this
Agreement.
"LTH Common Stock" shall have the meaning set forth in the recitals to
this agreement.
"LTH Common Stock Equivalents" shall have the meaning set forth in
Section 3.02 of this Agreement.
"LTH Material Adverse Effect" shall mean an event or change,
individually, or in the aggregate with other events or changes, that could
reasonably be expected to have a material adverse effect on (a) the business,
properties, prospects, condition (financial or otherwise) or results of
operations of LTH and the LTH Subsidiaries taken as a whole (other than those
events, changes or effects resulting from general economic conditions or the
industry in which LTH is engaged generally) or (b) the ability of LTH to
consummate the transactions contemplated hereby.
"Governmental Approval" shall mean the consent, approval, order or
authorization of, or registration, declaration or filing with any court,
administrative agency or commission or other Governmental Entity, authority or
instrumentality, domestic or foreign.
"Governmental Entity" means the government of the United States of
America, any other nation or any political subdivision thereof, whether foreign,
state or local, and any agency, authority, instrumentality, regulatory body,
court, tribunal, arbitrator, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Indebtedness" shall mean as to any Person and whether recourse is
secured by or is otherwise available against all or only a portion of the assets
of such Person and whether or not contingent, but without duplication: (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the Exchange of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not more than
120 days overdue or which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP); (e) every Capital Lease Obligation of such Person; (f) any
obligation of such Person to pay any discount, shares, fees, indemnities,
penalties, recourse, expenses or other amounts in connection with any sales by
such Person unless such sales are on a non-recourse basis (as to collectability)
of (i) accounts or general intangibles for money due or to become due, (ii)
chattel paper, instruments or documents creating or evidencing a right to
payment of money or (iii) other receivables, whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a disposition of
defaulted receivables for collection and not as a financing arrangement; (g)
every obligation of such Person under any forward contract, futures contract,
swap, option or other financing agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreements), the value of which is
dependent upon shares rates, currency exchange rates, commodities or other
indices (a "derivative contract"); (h) every obligation in respect of
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent that such Person is liable therefore as a
result of such Person's ownership shares in or other relationship with such
entity, except to the extent that the terms of such Indebtedness provide that
such Person is not liable therefore and such terms are enforceable under
applicable law; and (i) every Contingent Obligation of such Person with respect
to Indebtedness of another Person. Notwithstanding anything to the contrary in
this Agreement, the term "Indebtedness" expressly includes the following debts
and obligations of GIWS .
"Laws" shall mean all foreign, federal, state and local statutes, laws,
ordinances, regulations, rules, resolutions, orders, writs, injunctions,
judgments and decrees applicable to the specified Person and to the businesses
and assets thereof.
"License" shall mean any franchise, authorization, license, permit,
certificate of occupancy, easement, variance, exemption, certificate, consent or
approval of any Governmental Entity or other Person.
"Lien" shall mean any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, limited liability company,
association, Entity, institution, entity, party, Governmental Entity or any
other juridical entity of any kind or nature whatsoever.
"Takeover Proposal" shall mean any proposal for a tender or exchange
offer, Exchange, consolidation, sale of all or substantially all of such party's
assets, sale of in excess of fifteen percent of the shares of capital stock or
other business combination involving such party or any proposal or offer to
acquire in any manner a substantial equity shares (including any shares
exceeding fifteen percent of the equity outstanding) in, or all or substantially
all of the assets of, such party other than the transactions contemplated by
this Agreement.
"Taxes" means all federal, state, county, local, municipal, foreign and
other taxes, assessments, duties or similar charges of any kind whatsoever,
including all corporate franchise, income, gross receipts, occupation, windfall
profits, sales, use, ad valorem, value-added, profits, license, withholding,
payroll, employment, excise, premium, real property, personal property, customs,
net worth, capital gains, transfer, stamp, documentary, social security,
disability, environmental, alternative minimum, recapture and other taxes, and
including all shares, penalties and additions imposed with respect thereto,
whether disputed or not and including any obligations to indemnify or otherwise
assume or succeed to the Tax liability of any Person, and any liability in
respect of any Tax as a result of being a member of any affiliated, combined,
consolidated, unitary or similar group.
"Tax Return" means any report, return, statement, estimate,
informational return, declaration or other written information required to be
supplied to a taxing authority in connection with Taxes.
"Taxing Authority" means any domestic, foreign, federal, national,
state, county or municipal or other local government, any subdivision, agency,
commission or authority thereof, or any quasi-governmental body exercising tax
regulatory authority.
"Transaction Documents" shall mean this Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Exchange
Agreement to be duly executed as of the day and year first above written.
LEGACY TECHNOLOGY HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
GENOMICS INTEGRATED WELLNESS SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx, III
Title: Sole Shareholder
SOLE SHAREHOLDER OF GENOMICS INTEGRATED WELLNESS SYSTEMS, INC.
---------------------------------------
SCHEDULE 1.01
SHARES
Total Common Stock to be issued 22,527,088 shares
Name of Shareholders Amounts
Xxxxxxx X. Xxxxxxxx III 22,527,088
0000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
EXCHANGE AGREEMENT AND REPRESENTATIONS
Gentlemen:
The Subscriber herein, as Owner of the outstanding common stock of
Genomics Integrated Wellness Systems, Inc. (GIWS) and, is offering to exchange
100% of the common stock of Genomics Integrated Wellness Systems, Inc., for
22,527,088 shares of common stock of Legacy Technology Holdings, Inc.
("Company"), a Colorado corporation.
Subscriber hereby offers to exchange 100% of the capital stock of GIWS,
as shown on the records of GIWS, for 22,527,088 common shares of the Company
constituting 80% of the outstanding common stock of the Company post
transaction, and agrees to become a shareholder of the Company (LTH). In order
to induce the Company (LTH) to accept my offer, I advise you as follows and
acknowledge:
1. Corporate Documents. Receipt of copies of Articles, By-Laws, and audited
financial statements of the Company and such other documents as I have
requested, I hereby acknowledge that I have received the documents (as may be
supplemented from time to time) relating to the Company and that I have
carefully read the information and that I understand all of the material
contained therein, and agree to the terms, and understand the risk factors as
described therein.
2. Availability of Information. I hereby acknowledge that the Company has made
available to me the opportunity to ask questions of, and receive answers from
the Company and any other person or entity acting on its behalf, concerning the
terms and conditions of the Plan, the financial statements and related
information of the Company and the 2010, 2011 and 2012 10K's, 10Q's for 2012 of
the Company and the information contained in the corporate documents, and to
obtain any additional information, to the extent the Company possesses such
information or can acquire it without unreasonable effort or expense, necessary
to verify the accuracy of the information provided by the Company and any other
person or entity acting on its behalf.
3. Representations and Warranties. Acquiree represents and warrants to the
Company(LTH) (and understands that it is relying upon the accuracy and
completeness of such representations and warranties in connection with the
availability of an exemption for the offer and exchange of the shares from the
registration requirements of applicable federal and state securities laws) that:
(a) RESTRICTED SECURITIES.
(I) I understand that the Shares have not been registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws.
(II) I understand that if this exchange agreement is accepted and the Shares are
issued to me, I cannot sell or otherwise dispose of the shares unless the Shares
are registered under the Act or the state securities laws or exemptions
therefrom are available (and consequently, that I must bear the economic risk of
the investment for an indefinite period of time):
(III) I understand that the Company(LTH) has no obligation now or at any time to
register the Shares under the Act or the state securities laws or obtain
exemptions therefrom.
(IV) I understand that the Company(LTH) will restrict the transfer of the Shares
in accordance with the foregoing representations.
(V) There is a limited public market for the common stock of the Company and
there is no certainty that a more liquid market will ever develop or be
maintained. There can be no assurance that I will be able to sell or dispose of
the Shares. Moreover, no assignment, sale, transfer, exchange or other
disposition of the Shares can be made other than in accordance with all
applicable securities laws. It is understood that a transferee may at a minimum
be required to fulfill the investor suitability requirements established by the
Company, or registration may be required.
(b) LEGEND.
I agree that any certificate representing the Shares will contain and be
endorsed with the following, or a substantially equivalent, LEGEND:
"This share certificate has been acquired pursuant to an investment
representation by the holder and shall not be sold, pledged, hypothecated or
donated or otherwise transferred except upon the issuance of a favorable opinion
by its counsel and the submission to the Company of other evidence satisfactory
to and as required by counsel to the Company, that any such transfer will not
violate the Securities Act of 1933, as amended, and applicable state securities
laws. These shares are not and have not been registered in any jurisdiction."
(c) OWN ACCOUNT.
I am the only party in interest with respect to this exchange offer, and I am
acquiring the Shares for my own account for long-term investment only, and not
with an intent to resell, fractionalize, divide, or redistribute all or any part
of my interest to any other person.
(d) AGE: CITIZENSHIP.
I am at least twenty-one years old and a citizen of the United States.
(e) ACCURACY OF INFORMATION.
All information which Acquiree has provided to the Company (LTH) concerning my
knowledge of financial and business matters is correct and complete as of the
date set forth at the end hereof, and if there should be any material change in
such information prior to acceptance of this exchange offer by the Company, I
will immediately provide the Company with such information.
4. Exchange Procedure. I understand that this exchange is subject
to each of the following terms and conditions:
(a) The Company may reject this exchange for legal reasons, and this exchange
shall become binding upon the Company only when accepted, in writing, by the
Company.
(b) This offer may not be withdrawn by Acquiree .
(c) The share certificates to be issued and delivered pursuant to this exchange
will be issued in the name of and delivered to the undersigned.
5. Suitability. I hereby warrant and represent:
(a) That I can afford a complete loss of the investment and can afford to hold
the securities being received hereunder for an indefinite period of time.
(b) That I consider this investment a suitable investment, and
(c) That I am sophisticated and knowledgeable and have had prior experience
in financial matters and investments.
6. Acknowledgement of Risks. I have been furnished and have carefully read
the information relating to the Company, including this form of Exchange
Agreement. I am aware that:
(a) There are substantial risks incident to the ownership of Shares from the
Company, and such investment is speculative and involves a high degree of risk
of loss by me of my entire investment in the Company.
(b) No federal or state agency has passed upon the Shares or made any finding or
determination concerning the fairness of this investment.
(c) The books and records of the Company will be reasonably available for
inspection by me and/or my investment advisors, if any, at the Company's place
of business.
(d) All assumptions and projections set forth in any documents provided by the
Company have been included therein for purposes of illustration only, and no
assurance is given that actual results will correspond with the results
contemplated by the various assumptions set forth therein.
(e) Prior to the completion of the exchange, GIWS had no operating history, and
Company is a shell and has been unsuccessful. GIWS and Company are in the
development stage, and the proposed operations are subject to all of the risk
inherent in the establishment of a new business enterprise, including a limited
operating history. The unlikelihood of the success of the Company must be
considered in light of the problems, expenses, difficulties, complications and
delays frequently encountered in connection with the formation and operation of
a new business and the competitive environment in which the Company will
operate.
7. Receipt of Advice. I acknowledge that I have been advised to consult my own
attorney and investment advisor concerning the investment.
8. Restrictions on Transfer. I acknowledge that the investment in the Company is
an illiquid investment. In particular, I recognize that:
(a) Due to restrictions described below, the lack of any market existing or to
exist for these Shares, in the event I should attempt to sell my Shares in the
Company, my investment will be highly illiquid and, probably must be held
indefinitely.
(b) I must bear the economic risk of investment in the Shares for an indefinite
period of time, since the Shares have not been registered under the Securities
Act of 1933, as amended, and issuance is made in reliance upon Section 4(2) and
4(6) of said Act and/or Rules 501-506 of Regulation D under the Act, as may be
applicable. Therefore, the Shares cannot be offered, sold, transferred, pledged,
or hypothecated to any person unless either they are subsequently registered
under said Act or an exemption from such registration is available and the
favorable opinion of counsel for the Company to that effect is obtained, which
is not anticipated. Further, unless said Shares are registered with the
securities commission of the state in which offered and sold, I may not resell,
hypothecate, transfer, assign or make other disposition of said Shares except in
a transaction exempt or exempted from the registration requirement of the
securities act of such state, and that the specific approval of such sales by
the securities regulatory body of the state is required in some states.
(c) My right to transfer my Shares will also be restricted by the legend
endorsed on the certificates.
9. Access to Information. I represent and warrant to the Company that:
(a) I have carefully reviewed and understand the risks of, and other
considerations relating to, the exchange of the Shares, including the risks of
total loss in the event the Company's business is unsuccessful.
(b) I and my investment advisors, if any, have been furnished all materials
relating to the Company and its proposed activities and anything which they have
requested and have been afforded the opportunity to obtain any additional
information necessary to verify the accuracy of any representations about the
Company.
(c) The Company has answered all inquiries that I and my investment advisors, if
any, have put to it concerning the Company and its proposed activities and the
Plan and exchange for the Shares.
(d) Neither I nor my investment advisors, if any, have been furnished any
offering literature other than the documents attached as exhibits thereto and I
and my investment advisors, if any, have relied only on the information
contained in such exhibits and the information, as described in subparagraphs
(b) and (c) above, furnished or made available to them by the Company.
(e) I am acquiring the Shares for my own account, as principal, for investment
purposes only and not with a view to the resale of distribution of all or any
part of such Shares, and that I have no present intention, agreement or
arrangement to divide my participation with others or to resell, transfer or
otherwise dispose of all or any part of the Shares subscribed for unless and
until I determine, at some future date, that changed circumstances, not in
contemplation at the time of this exchange, makes such disposition advisable;
(f) I, the undersigned, if on behalf of a corporation, partnership, trust, or
other form of business entity, affirm that: it is authorized and otherwise duly
qualified to purchase and hold Shares in the Company; recognize that the
information under the caption as set forth in (a) above related to investments
by an individual and does not address the federal income tax consequences of an
investment by any of the aforementioned entities and have obtained such
additional tax advice that I have deemed necessary; such entity has its
principal place of business as set forth below; and such entity has not been
formed for the specific purpose of acquiring Shares in the Company.
(g) I have adequate means of providing for my current needs and personal
contingencies and have no need for liquidity in this investment; and
(h) The information provided by the Company is confidential and non-public and I
agree that all such information shall be kept in confidence by it and neither
used by it to its personal benefit (other than in connection with its exchange
for the Shares) nor disclosed to any third party for any reason; provided,
however, that this obligation shall not apply to any such information which (i)
is part of the public knowledge or literature and readily accessible at the date
hereof; (ii) becomes part of the public knowledge or literature and readily
accessible by publication (except as a result of a breach of these provisions);
or (iii) is received from third parties (except those parties who disclose such
information in violation of any confidentiality agreements including, without
limitation, any Exchange Agreement they may have with the Company).
10. Binding Agreement. I hereby adopt, accept, and agree to be bound by all the
terms and conditions of the Plan, and by all of the terms and conditions of the
Articles of Incorporation, and amendments thereto, and By-Laws of the Company.
Upon acceptance of this Exchange Agreement by the Company, I shall become a
Shareholder for all purposes.
11. Agreement to Be Bound. The Exchange Agreement, upon acceptance by the
Company, shall be binding upon the heirs, executors, administrators, successors,
and assigns of mine.
12. Indemnification. I further represent and warrant:
(a) I hereby indemnify the Company and hold the Company harmless from and
against any and all liability, damage, cost, or expense incurred on account of
or arising out of:
(I) Any inaccuracy in my declarations, representations, and warranties
hereinabove set forth;
(II) The disposition of any of the Shares which I will receive, contrary to my
foregoing declarations, representations, and warranties; and
(III) Any action, suit or proceeding based upon (1) the claim that said
declarations, representations, or warranties were inaccurate or misleading or
otherwise cause for obtaining damages or redress from the Company; or (2) the
disposition of any of the Shares or any part thereof.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Colorado, except as to the manner in which
the undersigned elects to take title to the Shares in the Company that shall be
construed in accordance with the state of his principal residence.
14. Financial Statement. Upon request of the Company, I shall provide a sworn
and signed copy of my current financial statement.
An affiliate of, or person affiliated with, a specific person
shall mean a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified.
I will hold title to my interest as follows:
{ } Community Property
{ } Joint Tenants with Right Survivorship
{ } Tenants in Common
{ } Individually
{ } Other: (Corporation, Trust, Etc., please indicate)
(Note: Subscribers should seek the advice of their attorneys in
deciding in which of the above forms they should take ownership of the Shares,
since different forms of ownership can have varying gift tax and other
consequences, depending on the state of the investor's domicile and their
particular personal circumstances. For example, in community property states, if
community property assets are used to purchase shares held in individual
ownership, this might have adverse gift tax consequences. If OWNERSHIP IS BEING
TAKEN IN JOINT NAME WITH A SPOUSE OR ANY OTHER PERSON, THEN ALL SUBSCRIPTION
DOCUMENTS MUST BE EXECUTED BY ALL SUCH PERSONS.)
16. No Assignability. This exchange is personal to the person/entity whose name
and address appear below. The undersigned may not assign any of its rights or
obligations under this Exchange Agreement to any other person or entity.
17. Conditions. This Exchange Agreement shall become binding upon the Company
only when accepted, in writing, by the Company.
18. Effective Date. The exchange for Shares evidenced by this Exchange Agreement
shall, if accepted by the Company, be effective as soon after April 1, 2013, as
all state laws have been complied with to effectuate the transaction, and the
audit of GIWS has been delivered.
19. Conveyance. I hereby agree to convey title to all of my interest in GIWS, as
shown on the transfer records of GIWS to the Company in exchange for 22,527,088
of Common shares of the Company.
20. Further Acts. The undersigned hereby agrees to execute any other documents
and take any further actions that are reasonably necessary or appropriate in
order to implement the transaction contemplated by this Exchange Agreement.
Subscriber/Exchanger
Dated: April 4, 2013 /s/ Xxxxxxx Xxxxxxxx
------------------- ---------------------------
Name: Xxxxxxx Xxxxxxxx
