Amended and Restated Share Exchange Agreement by and between Kinder Holding Corp. and Intiva BioPharma Inc. Dated as of October 13, 2017
Exhibit 99.1
Amended and Restated Share Exchange Agreement
by and between
Kinder Holding Corp.
and
Intiva BioPharma Inc.
Dated as of October 13, 2017
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This AMENDED AND RESTATED SHARE EXCHANGE AGREEMENT, dated as of October 13, 2017 (this “Agreement”) is between Kinder Holding Corp., a Delaware corporation with offices located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxx, XX 00000, on the one hand (the “Company”) and Intiva BioPharma Inc., a Colorado corporation with offices located at 0000 Xxxxxx Xxxxx X. Xxxxx, Xxxxx 000, Xxxxxx XX 00000, on the other hand (“BioPharma”). The Company and BioPharma are sometimes referred to individually, as a “Party” and collectively, as the “Parties.”
Recital:
WHEREAS, the Parties acknowledge and agree that on June 26, 2017, in contemplation of the execution and delivery of a share exchange agreement between the Company and BioPharma, the Company filed a Form 8-K with United States Securities and Exchange Commission (the “SEC”) reporting that the control persons of the Company had effected a change in control transaction pursuant to which a principal shareholder of BioPharma acquired a total of 20,000,000 Shares from the Company’s two principal shareholders; and
ARTICLE I
Section 1.3 BioPharma undertakes to deliver to the Company a schedule of the issued and outstanding BioPharma Shares and BioPharma Warrants not less than two (2) business days prior to the Closing.
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Section 1.4 Upon the Closing, the Company undertakes to issue and grant to the holders of the BioPharma Warrants common stock purchase warrants exercisable to purchase Shares of the Company’s common stock based on the same ratio used to determine the number of Shares to be issued to BioPharma Shareholders, subject only to the implementation of the Corporate Actions defined and set forth in Section 2.2 below.
Section 1.6 Board of Directors of the Company. Simultaneously at Closing, Xxx Xxxxxx, one of the two existing directors of the Company, shall resign as an officer and director of the Company and the control persons of BioPharma and the remaining director shall make such appointments to serves as the Company’s new executive officers and directors as they shall determine.
ARTICLE II
Section 2.1 The Closing. The Parties shall take the actions set forth in Section 1.1 above.
Section 2.2 Conditions Subsequent to Closing.
A. As soon as practicable following the Closing, the Company undertakes to implement certain corporate actions by the filing with the SEC of an Information Statement based upon the Joint Written Consent of the Company's Board of Directors and Majority Consenting Stockholders (the Joint Consent") and file with the State of Delaware, a Certificate of Amendment to the Company’s Certificate of Incorporation to:
(i) implement a one for six (1:6) reverse stock split (the "Reverse Split") of the Company's 100,000,000 issued and outstanding Shares;
(ii) increase the number of authorized Shares of Common Stock from 100,000,000 Shares to 200,000,000 Shares (the “Authorized Share Increase”); and
(iii) change the name of the Company to a name determined by the Company’s newly constituted Board of Directors; and
(iv) take such other corporate actions as the Board of Directors may determine.
The foregoing are referred to collectively, as the “Corporate Actions.” The Company further undertakes to file as soon as reasonably practicable after the SEC has cleared comments, if any, with respect to the Information Statement, to make application to FINRA to approve the Corporate Actions.
B. The Company also agrees that as soon as reasonably practicable after the SEC clears comments, if any, on the Form 8-K containing full Form 10 disclosure, the Company will file a registration statement on Form S-1 for the purpose of registering for resale under the Securities Act of 1933, as amended (the “Act”) a number of Post-Reverse Stock Split Shares, including all of the 400,000 Post-Reverse Split Shares issued to Xxx Xxxxxx and Securities Compliance Corp., the former control persons of the Company, plus a number of additional Post Reverse Split Shares issued to the BioPharma Shareholders in an amount to be determined and subject to certain conditions as the Company’s Board of Directors shall reasonably determine.
Section 2.3 The foregoing are referred to collectively, as the “Corporate Actions,” which shall be implemented by filing the Information Statement on or about the date of the filing of the Registration Statement with the SEC.
ARTICLE III
The Company represents and warrants as of the date hereof that:
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ARTICLE IV
BioPharma represents and warrants to the Company as of the date hereof that:
Section 4.1 Existence and Power. BioPharma is duly organized and validly existing under the laws of the State of Colorado and has all requisite power and authority to enter into and perform its obligations under this Agreement.
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ARTICLE V
Section 5.1 Conditions to Each Party’s Obligation to Effect the Closing. The respective obligations of the Parties hereunder to affect the share exchange transactions contemplated by this Agreement (the “Share Exchange”) shall be subject to the following conditions:
(a) No Injunctions or Restraints; Illegality. No order, injunction or decree issued by any court or agency of competent jurisdiction or other law preventing or making illegal the consummation of the Exchange shall be in effect; and
(b) BioPharma shall have delivered to the Company audited financial statements of BioPharma, consolidated proforma financial statements and such information related to BioPharma so that the Company will have the requisite information necessary to file with the SEC the full Form 10 disclosure on Form 8-K within four (4) business days following the Closing.
ARTICLE VI
(a) if to Company, then to:
Kinder Holding Corp.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxx Xxxxxx, CEO
email: xxxxxxx@xxxxxxxxxxxxxxx.xx
with a copy to:
Office of Xxxxxxx Xxxxx
00 Xxxx Xxxxxx – 00xx Xxxxx
Xxx Xxxx, XX 00000
Email: xxxxxx@xxxxxxxxxxxxxxx.xx
(b) if to BioPharma, then to:
Intiva BioPharma Inc.
0000 Xxxxxx Xxxxx X. Xxxxx, Xxxxx 000
Xxxxxx XX 00000
Attention: Xxxxxxx Xxxxxxxxx, CEO
email: xxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
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Section 6.6 Governing Law. This Agreement shall be governed and construed in accordance with the internal laws of the State of New York applicable to contracts made and wholly performed within such state, without regard to any applicable conflicts of law principles. The Parties hereto agree that any suit, action or proceeding brought by either Party to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any federal or state court located in the State of New York. Each of the Parties hereto submits to the jurisdiction of any such court in any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of, or in connection with, this Agreement or the transactions contemplated hereby and hereby irrevocably waives the benefit of jurisdiction derived from present or future domicile or otherwise in such action or proceeding. Each Party hereto irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Notwithstanding the foregoing, the Parties, upon mutual written agreement, may agree to the State of Colorado or California in lieu of the State of New York.
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Kinder Holding Corp.
/s/: Xxx Xxxxxx
Xxx Xxxxxx, CEO
Intiva Biopharma Inc.
/s/: Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx, CEO
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