SHARE EXCHANGE AGREEMENT
Exhibit
2.1
THIS
SHARE EXCHANGE AGREEMENT (this “Agreement”), effective as of June 2 2005, (the
"Effective Date"), is entered into by and between the shareholders of the
Nord
Oil (“NORD”), as listed on Exhibit A hereto (the “Shareholders”) and
Bio-Tracking Security Inc., a Florida corporation (“BIO-TRACKING”).
WHEREAS,
the Shareholders are the registered and beneficial owners of all of the issued
and outstanding shares of Common Stock, $0.001 par value, of NORD (the “NORD
Shares”);
WHEREAS,
Bio-Tracking is a publicly reporting company registered with the U.S. Securities
and Exchange Commission, whose stock currently trades under the symbol
BTSI;
WHEREAS,
Bio-Tracking desires to acquire all of the NORD Shares in exchange for
180,000,000 restricted shares of the Common Stock of Bio-Tracking the
(“Bio-Tracking Shares”) (the “Share Exchange”).
WHEREAS,
the parties to this Agreement have agreed to the Share Exchange subject to
the
terms and conditions set forth below.
NOW
THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the mutual
premises and the mutual covenants and agreements contained herein, the parties
covenant and agree each with the other as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. The following terms shall have the following respective
meanings:
(a) “Closing”
shall mean the release of the Bio-Tracking Shares to the Shareholders and
the
NORD Shares to Bio-Tracking upon completion of the terms and conditions of
this
Agreement, which shall be held at the offices of Xxxxxxxxxxx Capital Inc.
at 0
Xxxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx, X0X 0X0 on June 15, 2005
(the
“Closing Date”);
(b) “NORD”
shall have the meaning ascribed thereto in the first paragraph of this
Agreement;
(c) “NORD
Shares” shall have the meaning ascribed thereto in the second paragraph of this
Agreement;
(d) “Effective
Date” shall have the meaning ascribed thereto in the first paragraph of this
Agreement;
(e) “Escrow
Agent” shall have the meaning ascribed thereto in Section 2.02(c)
hereof;
(f) “Escrow
Agreement” shall mean that certain Escrow Agreement to be entered into
simultaneously with this Agreement by and among NORD, Bio-Tracking and Xxxxxx
Xxxx Attorney;
(g) the
“Financial Statements” shall have the meaning ascribed thereto in Section 3.10
hereto;
(h) “Share
Exchange” shall have the meaning ascribed thereto in the fourth paragraph of
this Agreement;
(i) “Shareholders”
shall have the meaning ascribed thereto in the first paragraph of this
Agreement;
(j) “Bio-Tracking”
shall have the meaning ascribed thereto in the first paragraph of this
Agreement; and
(k) “Bio-Tracking
Shares” shall have the meaning ascribed thereto in the fourth paragraph of this
Agreement.
ARTICLE
II
EXCHANGE
OF STOCK
Section
2.01. Exchange.
Upon the
terms and subject to the conditions of this Agreement, the Shareholders agree
to
exchange the NORD Shares for the Bio-Tracking Shares and Bio-Tracking agrees
to
exchange the Bio-Tracking Shares for the NORD Shares at the Closing or as
soon
as it is legal possible, whereas the shares will be deemed to be issued at
the
time of closing. The parties intend that the Share Exchange shall qualify
as a
tax-free reorganization under Section 368 of the Internal Revenue Code. However,
Bio-Tracking makes no representations or warranties regarding the qualification
of the Share Exchange as “tax free”. Bio-Tracking shall cooperate with NORD in
executing any reasonably necessary documents to qualify the Share Exchange
as
tax free. So far as such agreements do not or could not cause Bio-Tracking
or
its shareholders to incur any liability or further obligation.
Section
2.02. Delivery
of Stock; Escrow.
(a)
Upon
the execution hereof, the Shareholders shall deliver to the Escrow Agent
all of
the stock certificates representing the NORD Shares, duly endorsed in blank
and
accompanied by a medallion signature guarantee;
(b)
Upon
execution hereof, Bio-Tracking shall deliver to the Escrow Agent an issuance
letter representing the stock certificates to be issued of Bio-Tracking Shares
in the names and denominations as set forth on Exhibit B hereto, with the
express understanding and agreement of all parties hereto that in the event
that
the Closing does not occur and the Bio-Tracking Shares are returned to
Bio-Tracking by the Escrow Agent pursuant to the Escrow Agreement, then
Bio-Tracking may present the Bio-Tracking Shares to its transfer agent for
cancellation without any signed stock powers from any of the Shareholders.
If
the Closing does not occur the NORD Shares shall be returned to the
Shareholders.
(c)
The
execution and delivery of this Agreement shall take place at the offices
of
Xxxxxxxxxxx Capital Inc. at 0 Xxxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx,
X0X 0X0 on June 15, 2005; or by counterpart signatures to be sent to such
offices by facsimile transmission to 000-000-0000. All documents and instruments
required to be delivered at the Closing shall be delivered into escrow to
be
held by Xxxxxx Xxxx. (the “Escrow Agent”), pursuant to the Escrow Agreement,
pending completion of the covenants and conditions to Closing as set forth
in
Articles V, VI and VII hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SHAREHOLDERS
Section
3.01. Organization,
Standing and Authority; Foreign Qualification.
(a) NORD
is a corporation duly organized, validly existing and in good standing under
the
laws of Delaware with all requisite power and authority to enter into, and
perform the obligations under this Agreement. NORD has all requisite power
and
authority to own, lease and operate its assets, properties and business and
to
carry on its business as now being and as heretofore conducted.
(b) The
Company is duly qualified or otherwise authorized as a foreign corporation
to
transact business and is in good standing in each jurisdiction set forth
in
Schedule 3.01 which are the only jurisdictions in which such qualification
or
authorization is required by law. No other jurisdiction has claimed, in writing
or otherwise, that NORD is required to qualify or otherwise be licensed therein.
Except as set forth in Schedule 3.01, NORD does not file any franchise, income
or other tax returns in any other jurisdiction based upon the ownership or
use
of property therein or the derivation of income therefrom.
Section
3.02. Capitalization.
Schedule
3.02 sets forth the authorized capitalization of NORD and the ownership of
each
outstanding share of Common Stock, which is the only class of the Company’s
capital stock that is outstanding. All of the outstanding shares of Common
Stock
of NORD are duly authorized, validly issued, fully paid and non-assessable
and
free of preemptive rights.
Section
3.03. Certificate
of Incorporation and By-Laws.
The
Shareholders have heretofore delivered to Bio-Tracking true, correct and
complete copies of the Certificate or Articles of Incorporation (certified
by
the appropriate official for Canadian Corporations) and By-laws or comparable
instruments (certified by the corporate secretary thereof) of NORD. The minute
books of NORD accurately reflect all actions taken at all meetings and consents
in lieu of meetings of its stockholders, and all actions taken at all meetings
and consents in lieu of meetings of each of their boards of directors and
all
committees. For instance the cut off date for circulation and acceptance
of
minutes of Board of Director Meetings is 90 days from close of Board of
Directors Meetings with the minutes deemed as accepted by the majority
vote.
Section
3.04. Execution
and Delivery.
This
Agreement has been duly executed and delivered by each Shareholder and each
constitutes the valid and binding agreement of each Shareholder enforceable
against the Shareholders in accordance with its terms.
Section
3.05. Consents
and Approvals.
The
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby and thereby in accordance with the terms
and conditions hereof and thereof do not require any Shareholder or NORD
to
obtain any consent, approval or action of, or make any filing with or give
any
notice to, any person or entity.
Section
3.06. No
Conflict.
The
execution, delivery and performance of each of this Agreement and the
consummation of the transactions contemplated hereby and thereby in accordance
with the terms and conditions hereof and thereof will not (a) violate any
provisions of the Articles or Certificate of Incorporation, By-laws or other
charter or organizational document of NORD; (b) violate, conflict with or
result
in any modification of the effect of, otherwise give any other contracting
party
the right to terminate, or constitute (or with notice or lapse of time or
both,
constitute) a default under, and Contract to which any Shareholder or NORD
is a
party to by or to which any of them or any of their respective assets or
properties may be bound or subject; (c) violate any order, judgment, injunction,
award or decree of any court, arbitrator or governmental or regulatory body
against, or binding upon or any agreement with, or condition imposed by,
any
governmental or regulatory body, foreign or domestic, binding upon any
Shareholder or NORD or upon the NORD Shares or the properties or business
of
NORD; (d) violate any statute, law or regulation of any jurisdiction as such
statute, law or regulation relates to any Shareholder or NORD; or (e) result
in
the breach of any of the terms or conditions of, constitute a default under,
or
otherwise cause an impairment of, any Permit.
Section
3.07. Title
to Stock.
Each
Shareholder has valid title to their respective portion of the NORD Shares
free
and clear of all liens or encumbrances, including, without limitation, any
community property claim. Upon delivery of the NORD Shares to be made on
the
Closing Date as herein provided, Bio-Tracking shall acquire good and marketable
title thereto, free and clear of any Lien, including, without limitation,
any
community property claim.
Section
3.08. Options
or Other Rights.
(a)
There is no outstanding right, subscription, warrant, call NORD preemptive
right, option, contract or other agreement of any kind to purchase or otherwise
to receive from any Shareholder or from NORD any of the outstanding,
unauthorized or treasury shares of the Common Stock of NORD; except as otherwise
specified in schedule “A” attached; and (b) there is no outstanding security of
any kind convertible into any security of NORD, and, except as aforesaid,
there
is no outstanding contract or other agreement to purchase, redeem or otherwise
acquire any of the NORD Shares.
Section
3.09. Material
Information.
This
Agreement, the Schedules hereto, the Financial Statements of NORD and all
other
information provided in writing by the Shareholders or NORD or representatives
thereof to Bio-Tracking, taken as a whole, do not contain any untrue statement
of a material fact or omit to state a material fact necessary to make any
statement contained herein or therein not misleading. There are no facts
or
conditions, which have not been disclosed to Bio-Tracking in writing which,
individually or in the aggregate, could have a material adverse effect on
NORD
or a material adverse effect on the ability of any Shareholder to perform
any of
his or her obligations pursuant to this Agreement.
Section
3.10. Financial
Statements.
The
Shareholders have or will have prior to the Closing furnished to Bio-Tracking
certain financial statements of NORD as set forth in Section 5.11 hereof
(the
“Financial Statements”). The Financial Statements shall be true, correct and
complete in all material respects and fairly present the financial condition
of
NORD and the results of its operations for the period then ended and shall
be
prepared in conformity with U.S. generally accepted accounting principles
applied on a consistent basis. Said statements will be as at December
31st
year end
going back 2 years following United States G.A.A.P. rules.
Section
3.11. Absence
of Certain Changes.
Since the
date
of the Financial Statements, there has been no event, change or development
which could have a material adverse effect on NORD.
Section
3.12. Undisclosed
Liabilities.
Except
as reflected or reserved against in the Financial Statements, as of and for
the
period reflected therein, NORD was not on that date subject to, and since
that
date NORD has not incurred, any direct or indirect indebtedness, liability,
claim, loss, damage, deficiency, obligation or responsibility, fixed or unfixed,
xxxxxx or inchoate, liquidated or unliquidated, secured or unsecured, accrued,
absolute, contingent or otherwise, of a kind required by generally accepted
accounting principles to be reflected or reserved against on a financial
statement (“Liabilities”), which individually or in the aggregate exceeds
$10,000.
Section
3.13. Operations
of the Company.
Except
as contemplated by this Agreement, or as otherwise specified in schedule
“B” and
itemized with respect to section 3.13 paragraphs (a), (b), (c), (d), (e),
(f),
(g), (h), (i), (j), and (k), since the date of the Financial Statements,
NORD
has not (a) amended its Certificate or Articles of Incorporation or By-laws
or
merged with or into or consolidated with any other person or entity, subdivided
or in any way reclassified any shares of its capital stock or changed or
agreed
to change in any manner the rights of its outstanding capital stock or the
character of its business; (b) issued, reserved for issuance, sold or redeemed,
repurchased or otherwise acquired, or issued options or rights to subscribe
to,
or entered into any contract or commitment to issue, sell or redeem, repurchase
or otherwise acquire, any shares of its capital stock or any bonds, notes,
debentures or other evidence or indebtedness; (c) incurred any indebtedness
for
borrowed money or incurred or assumed any other Liability in excess of $10,000
in any one case (or, in the aggregate, in the case of any related series
of
occurrences) or $25,000 in the aggregate; (d) declared or paid any dividends
or
declared or made any other distributions of any kind to its stockholders;
(e)
made any change in its accounting methods or practices or made any change
in
depreciation or amortization policies, except as required by law or generally
accepted accounting principles; (f) made any loan or advance to any of its
stockholders or to any of its directors, officers or employees, consultants,
agents or other representatives, or made any other loan or advance, otherwise
than in the ordinary course of business; (g) entered into any lease (as lessor
or lessee) under which NORD is obligated to make or would receive payments
in
any one year of $10,000 or more; sold, abandoned or made any other disposition
of any of its assets or properties; granted or suffered any Lien on any of
its
assets or properties; entered into or amended any contracts to which it is
a
party, or by or to which it or its assets or properties are bound or subject
which if existing on the date hereof would be required to be disclosed in
Schedule 3.17; (h) made any acquisition of all or a substantial part of the
assets, properties, securities or business of any other person or entity;
(i)
paid, directly or indirectly, any of its material Liabilities before the
same
became due in accordance with its terms or otherwise than in the ordinary
course
of business; (j) terminated or failed to renew, or received any written threat
(that was no subsequently withdrawn) to terminate or fail to renew, any contract
that is or was material to the assets, Liabilities, business, property,
operations, prospects, results of operations or condition (financial or
otherwise of NORD; or (k) entered into any other contract or other transaction
that materially increases the Liabilities of NORD.
Section
3.14 Compliance
with Laws.
NORD is
not in violation of any applicable order, judgment, injunction, award or
decree
nor is it in violation of any Federal, state, local or foreign law, ordinance
or
regulation or any other requirement of any governmental or regulatory body,
court or arbitrator, other than those violations which, in the aggregate,
would
not have a material adverse effect on NORD, neither NORD or any Shareholder
has
received written notice that any violation is being alleged.
Section
3.15. Actions
and Proceedings.
There
are no outstanding orders, judgments, injunctions, awards or decrees of any
court, governmental or regulatory body or arbitration tribunal against or
involving NORD, or against or involving any of the NORD Shares. There are
no
actions, suits or claims or legal, regulatory, administrative or arbitration
proceedings pending or, to the knowledge of any of the Shareholders threatened
against or involving NORD.
Section
3.16. Contracts.
(a)
Schedule 3.16 sets forth all of the (see schedule “C”) contracts hereinafter in
this Section 3.16 referred to, to which NORD is a party or by or to which
NORD
or its assets or properties are bound or subject:
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(i)
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Contracts
with any current or former officer, director, employee, consultant,
agent
or other representative having more than three months to run from
the date
hereof or providing for an obligation to pay and/or accrue NORD
of $10,000
or more per annum, or providing for the payment of fees or other
consideration in excess of $10,000 in the aggregate to any officer
or
director of NORD, or to any other entity in which NORD or Seller
has an
interest;
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(ii)
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Contracts
for the purchase or sale of equipment or services that contain
an
escalation, renegotiation or redetermination clause or that can
be
cancelled without liability, premium or penalty only on ninety
days’ or
more notice;
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(iii)
|
Contract
for the sale of any of its assets or properties or for the grant
to any
Person of any preferential rights to purchase any of its or their
assets
or properties;
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(iv)
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Contracts
(including with limitation, leases of real property) calling for
an
aggregate purchase price or payments in any one year of more than
$10,000
in any one case (or in the aggregate, in the case of any related
series of
Contracts);
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(v)
|
Contracts
relating to the acquisition by NORD of any operating business of,
or the
disposition of any operating business by, any other
Person;
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(vi)
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executory
Contracts relating to the disposition or acquisition of any investment
or
of any interest in any Person;
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(vii)
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Contracts
under which it agrees to indemnify any party, other than in the
ordinary
course of business or in amounts not in excess of $10,000, or to
share tax
liability of any party;
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(viii)
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Contracts
containing covenants of NORD not to compete in any line of business
or
with any person in any geographical area or covenants of any other
person
not to compete with NORD in any line of business or in any geographical
area;
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(ix)
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Contracts
relating to the making of any loan by
NORD;
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(x)
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Contracts
relating to the borrowing of money by NORD or the direct or indirect
guaranty by NORD of any obligation for, or an agreement by NORD
to
service, the repayment of borrowed money, or any other contingent
obligations in respect of indebtedness of any other Person, including,
without limitation, (a) any Contract relating to the maintenance
of NORD
balances, (b) any Contract with respect to lines of credit, (c)
any
Contract to advance or supply funds to any other Person other than
in the
ordinary course of business, (d) any Contract to pay for property,
products or services of any other Person even if such property,
products
or services are not conveyed, delivered or rendered, (e) any keep-well,
make-whole or maintenance of working capital or earnings or similar
Contract, or (f) any guaranty with respect to any lease or other
similar
periodic payments to be made by any other Person;
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(xi)
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Contracts
for or relating to computers, computer equipment, computer software
or
computer services; and
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(xii)
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any
other material Contract whether or not made in the ordinary course
of
business.
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(b)
There
have been delivered or made available to Bio-Tracking true, correct and complete
copies of each of the contracts set forth in Schedule 3.17 or in any other
Schedule. Each such contract is valid, subsisting, in full force and effect
and
binding upon the parties thereto in accordance with its terms, and neither
NORD
nor any of NORD’s other affiliates, as the case may be, is in default in any
respect under any of them.
Section
3.17. Liens.
NORD has
marketable title to all of its assets and properties free and clear of any
lien.
Section
3.18. Officers,
Directors and Key Employees.
Except
as specified in Schedule “D” attached, NORD does not have any contract or
agreement with any of its officers, directors, employees or consultants whose
annual salary equals or exceeds $25,000 or who received or has accrued in
respect of such period a bonus equal to or in excess of $5,000; and NORD
does
not have any commitments or contracts to increase the wages or to modify
the
condition or terms of employment or consultancy of any of the employees or
consultants of NORD, including the aggregate cost to NORD of all such
commitments or contracts.
Section
3.19. Brokerage.
As a
result of the transaction 6,000,000 shares of Bio-Tracking will be issued
by
Bio-Tracking to pay a finders fee to Xxxxxxxxxxx Capital and or nominees
as well
as 1,200,000 “success” warrants to be issued to Xxxxxxxxxxx Capital and or
nominee according to success factors as per the agreement between Xxxxxxxxxxx
Capital and Bio-Tracking, whereby such agreement shall be entered into prior
to
the closing of the transaction and shall be subject to board approval.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF BIO-TRACKING
Bio-Tracking
represents and warrants to the Shareholders as follows:
Section
4.01. Organization,
Standing and Authority of Bio-Tracking.
Bio-Tracking is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and has all requisite corporate
power and authority to own or lease its assets as now owned or leased by
it and
to otherwise conduct its business. All corporate proceedings required by
law or
by the provisions of this Agreement to be taken by Bio-Tracking on or before
the
Closing Date in connection with the execution and delivery of this Agreement
and
the consummation of the transactions contemplated by this Agreement have
been or
will be duly and validly taken.
Section
4.02. Execution
and Delivery.
This
Agreement has been duly authorized, executed and delivered by Bio-Tracking
and
constitutes the valid and binding agreement of Bio-Tracking enforceable against
Bio-Tracking in accordance with its terms.
Section
4.03. Consents
and Approvals.
The
execution, delivery and performance by Bio-Tracking of this Agreement and
the
consummation by Bio-Tracking of the transactions contemplated hereby do not
require Bio-Tracking to obtain any consent, approval or action of, or make
any
filing with or give any notice to, any person.
Section
4.04. No
Conflict.
The
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby in accordance with the terms and conditions
hereof will not (a) violate any provision of the Articles or Certificate
of
Incorporation, By-laws or other charter or organizational document of
Bio-Tracking; (b) violate, conflict with or result in the breach of any of
the
terms of, result in any modification of the effect of, otherwise give any
other
contracting party the right to terminate, or constitute (or with notice or
lapse
of time or both constitute) a default under, any contract to which Bio-Tracking
is a party or by or to which its assets or properties may be bound or subject;
(c) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, or
any
agreement with, or condition imposed by, any governmental or regulatory body,
foreign or domestic, binding upon Bio-Tracking or upon the securities, assets
or
business of Bio-Tracking; or (d) violate any statute, law or regulation of
any
jurisdiction as such statute, law or regulation relates to Bio-Tracking or
to
the securities, properties or business of Bio-Tracking.
Section
4.05. Capitalization.
Schedule
4.05 sets forth the authorized capitalization of Bio-Tracking which is the
only
class of the Company’s capital stock outstanding, as of the date of this
Agreement. There are no outstanding options or warrants of Bio-Tracking,
save
for those disclosed in Schedule 4.05. All of the outstanding shares of
Bio-Tracking's common stock, numbering no more and no less than 340,000,000
shares as at closing, are duly authorized, validly issued, fully paid and
non-assessable and free of pre-emptive rights and all such shares issued
during
the last 24 months were issued in compliance with all applicable U.S. securities
laws and Bio-Tracking will file with appropriate authorities to perform a
1:12
reverse split, whereby the total issued and outstanding of the common shares
of
Bio-Tracking will be approximately 28,333,000 but no more than 30,000,000
and
the shares for the acquisition of NORD will be issued post reverse and therefore
Bio-Tracking will have a total of 216,000,000 common shares
outstanding.
Section
4.06. Brokerage.
No
broker or finder has acted, directly or indirectly, for Bio-Tracking, nor
has
Bio-Tracking incurred any obligation to pay any brokerage, finder’s fee or other
commission in connection with the transactions contemplated by this Agreement,
except for an obligation of Bio-Tracking to pay up to $25,000 to Xxxxxxxxxxx
Capital for legal fees incurred in the preparation of this agreement.
Section
4.07. Certificate
of Incorporation and By-Laws.
Bio-Tracking has heretofore delivered to NORD true, correct and complete
copies
of the Certificate or Articles of Incorporation (certified by the Secretary
of
State) and By-laws or comparable instruments (certified by the corporate
secretary thereof) of Bio-Tracking. The minute books of Bio-Tracking accurately
reflect all actions taken at all meetings and consents in lieu of meetings
of
its stockholders, and all actions taken at all meetings and consents in lieu
of
meetings of its board of directors and all committees.
Section
4.08. Status
of Bio-Tracking Shares.
Upon
consummation of the transactions contemplated by this Agreement, the
Bio-Tracking Shares to be issued to the Shareholders, when issued and delivered,
will be duly authorized, validly issued, fully paid and non-assessable and
free
of any and all liens, claims or encumbrances.
Section
4.09 No
Bankruptcy.
Neither
Bio-Tracking nor its assets are the subject of any proceeding involving either
a
voluntary or an involuntary bankruptcy, insolvency or
receivership.
Section
4.10 Absence
of Certain Changes.
Since
December 1, 2004, there has not been any material adverse change in the
financial condition, assets or liabilities of Bio-Tracking, and Bio-Tracking
has
not:
(a)
Engaged in any material transaction outside the ordinary course of business;
(b)
Made
any capital expenditures other than in the ordinary course of business;
(c)
Paid,
loaned or advanced (other than the payment of salaries or reimbursement of
expenses in the ordinary course of business) any amounts to, or sold,
transferred or leased any properties or assets to or entered into any other
transactions with any of its officers or directors, any of its affiliates,
or
any officer or director of its affiliates, as may be necessary to comply
with
Section 7.06 of this Agreement.
(d)
Made
any material change in any method of accounting or accounting practice;
(e)
Incurred any material indebtedness or leasehold expense in excess of $5,000;
(f)
Entered into any material guaranties or otherwise incurred or suffered to
exist
any material contingent liabilities;
(g)
Paid
or declared any dividend or other distribution in respect of its capital
stock,
or set aside any sums for the payment of any such dividend or other
distribution;
(h)
Agreed, whether in writing or otherwise, to do any of the foregoing;
or
(i)Suffered
any labor trouble or any controversies with any of its employees,
or
(j)
Entered into any contract, granting of option, future promise or contingent
commitment with any director, shareholder, or any other third party for an
aggregate amount in excess of $10,000.00.
Section
4.11 Contracts
and Commitments.
All
agreements which materially affect Bio-Tracking to which Bio-Tracking is
a party
or by which Bio-Tracking or any of its property is bound which exist as of
the
date of execution of this Agreement have been filed as exhibits to documents
filed by Bio-Tracking (collectively the "Contracts") with the Securities
and
Exchange Commission (the "SEC") under the Securities Exchange Act of 1934.
Bio-Tracking is not in default with respect to any material term or condition
of
any such Contract, nor has any event occurred which through the passage of
time
or the giving of notice, or both, would constitute a default
hereunder.
Section
4.12 Compliance
with Laws.
Bio-Tracking is not in violation of any applicable order, judgment, injunction,
award or decree nor is it in violation of any Federal, state, local or foreign
law, ordinance or regulation or any other requirement of any governmental
or
regulatory body, court or arbitrator, other than those violations which,
in the
aggregate, would not have a material adverse effect on Bio-Tracking and
Bio-Tracking has not received written notice that any violation is being
alleged.
Section
4.14 Stop
Trade Orders.
To
Bio-Tracking's knowledge, there are no pending, and there have never been
any,
stop trade orders issued against Bio-Tracking or any of its directors or
officers or those of any affiliates of Bio-Tracking by any securities regulatory
authority in the United States.
Section
4.15 Regulatory
Investigations.
To
Bio-Tracking's knowledge, there are no investigations or inquiries pending
against Bio-Tracking or its directors or officers by any stock exchange,
securities regulatory authority, taxing authority or any other governmental
department or agency.
Section
4.16 Corporate
Records.
All of
the minute books and corporate and financial records of Bio-Tracking are,
or
prior to the Closing will be, in all material respects, complete, up to date
and
accurate
Section
4.17. Material
Information.
This
Agreement, the Schedules hereto and all other information provided in writing
by
Bio-Tracking or its representatives thereof to the shareholders, taken as
a
whole, do not contain any untrue statement of a material fact or omit to
state a
material fact necessary to make any statement contained herein or therein
not
misleading. There are no facts or conditions, which have not been disclosed
to
the Shareholders in writing which, individually or in the aggregate, could
have
a material adverse effect on Bio-Tracking or a material adverse effect on
the
ability of Bio-Tracking to perform any of its obligations pursuant to this
Agreement.
ARTICLE
V
COVENANTS
AND AGREEMENTS
The
Shareholders and Bio-Tracking covenant and agree as follows:
Section
5.01. Conduct
of Business in the Ordinary Course.
From the
date hereof through the Closing Date, the Shareholders shall cause NORD to
conduct its business substantially in the manner in which it is currently
conducted and, without the prior written consent of Bio-Tracking, not to
undertake any of the actions specified in Section 3.11 nor enter into any
Contract described in Section 3.17.
Section
5.02. Preservation
of Permits and Services.
From
the date hereof through the Closing Date, the Shareholders shall cause NORD
to
use its best efforts and Bio-Tracking shall use its best efforts to preserve
any
permits in full force and effect and to keep available the services of their
respective present officers, employees, consultants and agents and preserve
their goodwill.
Section
5.03. Litigation.
(a)
From
the date hereof through the Closing Date, the Shareholders shall notify
Bio-Tracking promptly of any actions or proceedings of the type described
in
Section 3.15 that from the date hereof are threatened or commenced against
NORD
or against any officer, director, employee, properties or assets of NORD
with
respect to its affairs, or against any of the NORD Shares and of any requests
for information or documentary materials by any governmental or regulatory
body
in connection with the transactions contemplated hereby.
(b)
From
the date hereof through the Closing Date, Bio-Tracking shall notify the
Shareholders promptly of any actions, suits or claims or legal, regulatory,
administrative or arbitration proceedings that from the date hereof are
threatened or commenced against Bio-Tracking or against any officer, director,
employee, properties or assets of Bio-Tracking with respect to its affairs
and
of any requests for information or documentary materials by any governmental
or
regulatory body in connection with the transactions contemplated
hereby.
Section
5.04. Conduct
of the Shareholders, NORD and Bio-Tracking Pending the Closing.
From the
date hereof through the Closing Date, (a) the Shareholders shall use, and
the
Shareholders shall cause NORD to use its best efforts to conduct its affairs
in
such a manner so that, except as otherwise contemplated or permitted by this
Agreement, the representations and warranties contained in Article III shall
continue to be true and correct on and as of the Closing Date as if made
on and
as of the Closing Date, (b) Bio-Tracking shall use its best efforts to conduct
its affairs in such a manner so that, except as otherwise contemplated or
permitted by this Agreement, the representations and warranties contained
in
Article IV shall continue to be true and correct on and as of the Closing
Date
as if made on and as of the Closing Date, (c) the Shareholders shall promptly
notify Bio-Tracking of any event, condition or circumstance occurring from
the
date hereof through the Closing Date that would constitute a violation or
breach
of this Agreement by the Shareholders, and (d) Bio-Tracking shall promptly
notify the Shareholders of any event, condition or circumstance occurring
from
the date hereof through the Closing Date that would constitute a violation
or
breach of this Agreement by Bio-Tracking.
Section
5.05. Corporate
Examinations and Investigations.
Prior to
the Closing Date, Bio-Tracking shall be entitled, through its employees and
representatives, to make such investigation of the assets, Liabilities,
properties, business and operations of NORD , and such examination of the
books,
records, tax returns, results of operations and financial condition of NORD,
as
Bio-Tracking wishes. Any such investigation and examination shall be conducted
at reasonable times and under reasonable circumstances and the Shareholders
and
NORD and the employees and representatives of NORD, including without
limitation, their counsel and independent public accountants, shall cooperate
fully with such representatives in connection with such review and
examination.
Section
5.06. Acquisition
Proposals.
From the
date hereof through the Closing Date, neither the Shareholders nor NORD,
nor any
of the officers, directors, affiliates, employees, representatives or agents
of
NORD, shall, directly or indirectly, solicit, initiate or participate in
any way
in discussions or negotiations with, or provide any information or assistance
to, or enter into any Contract with any person, entity or group (other than
Bio-Tracking) concerning any acquisition of a substantial equity interest
in, or
in a merger, consolidation, liquidation, dissolution, disposition of assets
of
NORD or any disposition of any of the NORD Shares (other than pursuant to
the
transactions contemplated by this Agreement) (each, an “Acquisition Proposal”),
or assist or participate in, facilitate or encourage any effort or attempt
by
any other person or entity to do or seek to do any of the foregoing. The
Shareholders shall promptly communicate to Bio-Tracking the terms of any
Acquisition Proposal which any of them may receive.
Section
5.07. Further
Assurances.
Each of
the parties shall execute such documents and other papers and take such further
actions as may be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby. Each such party shall use
its
best efforts to fulfill or obtain the fulfillment of the conditions to the
Closing as promptly as practicable.
Section
5.08. Charter
Amendments.
Prior to
the Closing Date, Bio-Tracking shall cause the Articles of Incorporation
and
By-laws of Bio-Tracking to be amended (a) to set the number of directors
at five
(5), (b) cause a “reverse split” of its issued and outstanding shares, prior to
the issuance of the Bio-Tracking Shares at a ratio of 10:1 while maintaining
the
number of authorized shares of common stock at 25 million; and, (c) to change
the name of Bio-Tracking to “Major League Sports Corporation.”. Bio-Tracking
shall file with the SEC any and all forms necessary to conduct the foregoing
amendments in accordance with U.S. securities laws and regulations. On or
prior
to the Closing Date, Bio-Tracking shall cause one (1) designees of the
Shareholders to be elected as directors of Bio-Tracking effective immediately
following the Closing. There shall be no other amendments of, or modifications
to, the Articles or Certificate of Incorporation or By-laws of Bio-Tracking
and
no amendments or modification to the Articles of Incorporation or By-laws
of
NORD.
Section
5.09. Disposition
of Subsidiaries.
Prior to
the Closing Date, Bio-Tracking shall sell or otherwise transfer ownership
of any
of its existing subsidiaries if any and remove all consolidated debt related
to
such subsidiaries from its financial statements.
Section
5.10. Capital
Raising Activities.
(a)
Bio-Tracking shall immediately commence the offer and sale of approximately
20,000,000 shares to fund marketing activities post closing of this acquisition
with NORD.
(b)
At
the Closing, Bio-Tracking shall have no more than 340,000,000 shares of common
stock issued and outstanding, whereas the company will issue 180,000,000
to the
NORD shareholders post a reverse split of 1:12 and 6,000,000 shares to
Xxxxxxxxxxx Capital or nominees as a finders.
Section
5.11. Delivery
of Financial Statements.
(a) On
or before the Closing Date, the Shareholders shall cause NORD to provide
the
following financial statements to Bio-Tracking, which shall collectively
be
referred to as the “Financial Statements”.
(i)
Audited balance sheets as of the end of each of the two most recent fiscal
years
or such shorter period as NORD (including its predecessors) has been in
existence;
(ii)
Audited statements of income and cash flow for each of the three fiscal years
preceding the date of the audited balance sheet referred to in (1) above
or such
shorter period as NORD (including its predecessors) has been in
existence;
(iii)
An
interim balance sheet as of December 31, 2004; and
(vi)
For
the interim period between the date of the audited balance sheet referred
to in
(1) above and December 31, 2004, and for the corresponding period of the
preceding fiscal year, statements of income and cash flows.
(b)
The
audited financial statements referred to in (a)(i) and (a)(ii) above shall
be
audited by a independent certified public accountants or independent chartered
accountants that have been duly registered and in good standing with the
Securities and Exchange Commissions’ PCAOB. The interim financial statements
referred to in (a)(iii) and (a)(vi) above may be unaudited.
(c)
NORD
shall also provide a letter from its auditors referred to in (b) above in
which
the auditors shall state that they will be able to complete its review of
NORD’s
interim financial statements for filing, as required by the Securities and
Exchange Commission and provide assistance to Bio-Tracking’s auditors in the
preparation of pro forma financial statements of Bio-Tracking showing the
affects of the acquisition of NORD, within 75 days after the Closing.
Section
5.12 Public
Announcements.
Except
as required by any applicable law, rule or regulation, prior to the Closing
NORD
shall not issue nor permit to be issued any press release or otherwise make
or
permit to be made any public statement with respect to the transactions
contemplated by this Agreement without the prior written consent of
Bio-Tracking.
ARTICLE
VI
CONDITIONS
PRECEDENT TO THE OBLIGATION OF BIO-TRACKING TO CLOSE
The
obligation of Bio-Tracking to enter into and complete the Closing is subject,
at
Bio-Tracking’s option acting in accordance with the provisions of this Agreement
with respect to the termination hereof, to the fulfillment on or prior to
the
Closing date of the following conditions, any one or more of which may be
waived
by it, to the extent permitted by law.
Section
6.01. Representations
and Covenants.
The
representations and warranties of the Shareholders contained in this Agreement
shall be true and correct on and as of the Closing Date with the same force
and
effect as though made on and as of the Closing Date, except that any of such
representations and warranties that are give as of a particular date and
relate
solely to a particular date or period shall be true as of such date or period.
The Shareholders shall have performed and complied with all covenants and
agreements required by this Agreement to be performed or complied with by
them
on or prior to the Closing Date. The Shareholders shall have delivered to
Bio-Tracking a certificate dated the Closing Date, and signed by each
Shareholder to the foregoing effect.
Section
6.02. Governmental
Permits and Approvals.
All
approvals, authorizations, consents, permits and licenses from governmental
and
regulatory bodies required for the transactions contemplated by this Agreement
and to permit the business currently carried on by NORD to continue to be
carried on by NORD substantially in the same manner immediately following
the
Closing Date shall have been obtained and shall be in full force and effect
and
without conditions or limitations reasonably unacceptable to Bio-Tracking,
and
Bio-Tracking shall have been furnished with appropriate evidence, reasonably
satisfactory to it and its counsel, of the granting of such approvals,
authorizations, consents, permits and licenses. There shall not have been
any
action taken by any court, governmental or regulatory body then prohibiting
or
making illegal on the Closing Date the transactions contemplated by this
Agreement.
Section
6.03. Third
Party Consents.
All
consents, permits and approvals from parties to contracts with NORD that
may be
required in connections with the performance by the Shareholders of their
obligations under this Agreement or the continuance of such contracts with
NORD
in full force and effect after the Closing shall have been
obtained.
Section
6.04. Litigation.
No
action, suit or proceeding shall have been instituted and be continuing or
be
threatened by any Person to restrain, modify or prevent the carrying out
of the
transactions contemplated hereby, or to seek damages in connection with such
transactions, or that has or could have a material adverse effect on
NORD.
Section
6.05 No
Change in Capitalization.
On the
Closing Date, the capitalization of NORD shall be as represented in Section
3.02.
Section
6.06. Reimbursement
of Expenses.
At the
Closing, NORD will pay up to US$5,000 non-refundable fee to the Escrow Agent
as
reimbursement to Bio-Tracking for various fees and expenses of Bio-Tracking
and/or its affiliates that they have or will disbursed for completion of
this
transaction.
Section
6.07. Board
and Shareholder Approval.
Prior to
the Closing, NORD will obtain from its Board of Directors and its shareholders
approval of this Agreement and the transactions contemplated
hereby.
Section
6.08. Cancellation
Fee.
In the
event that the transactions contemplated by this Agreement are not closed
by
June 15, 2005 as the result of any breach by NORD of its obligations hereunder,
a material misrepresentation by NORD to Bio-Tracking, or the failure of NORD
or
its auditors’ inability or failure or refusal to provide the necessary audits
and reviews of the Financial Statements as required pursuant to Section 5.12
above, NORD shall pay to Bio-Tracking a cancellation fee of
US$5,000.
ARTICLE
VII
CONDITIONS
PRECEDENT TO THE OBLIGATION OF
THE
SHAREHOLDERS TO CLOSE
The
obligation of the Shareholders to enter into and complete the Closing is
subject, at the Shareholder’s option acting in accordance with the provisions of
this Agreement with respect to the termination hereof, to the fulfillment
on or
prior to the Closing Date of the following conditions, any one or more of
which
may be waived by it, to the extent permitted by law.
Section
7.01. Representations
and Covenants.
The
representations and warranties of Bio-Tracking contained in this Agreement
shall
be true and correct on and as of the Closing Date with the same force and
effect
as though made on and as of the Closing Date, except that any of such
representations and warranties that are give as of a particular date and
relate
solely to a particular date or period shall be true as of such date or period.
Bio-Tracking shall have performed and complied with all covenants and agreements
required by this Agreement to be performed or complied with by them on or
prior
to the Closing Date. Bio-Tracking shall have delivered to the Shareholders
a
certificate dated the Closing Date, and signed by an appropriate officer
of
Bio-Tracking to the foregoing effect.
Section
7.02. No
Change in Capitalization.
On the
Closing Date, the capitalization of Bio-Tracking shall be as represented
in
Section 4.05, plus the issuances as contemplated in Section 5.10
hereof.
Section
7.03. Appointment
of NORD’s Board Nominees; Resignation of Current Directors.
At the
Closing, Bio-Tracking shall deliver or cause to be delivered the resignations
and releases and indemnification of all the officers of Bio-Tracking.
Bio-Tracking shall also cause, at closing that all the directors of Bio-Tracking
shall deliver seriatim their resignations together with releases and
indemnifications in favor of two NORD nominees and that NORD shall as a result
have 2 two out of 5 five directors post closing.
Section
7.04. Filing
of Periodic Reports.
From the
date of this Agreement up to the Closing Date, Bio-Tracking will file with
the
U.S. Securities and Exchange Commission any and all periodic reports required
to
be filed by Bio-Tracking pursuant to Section 13(g) of the Securities Exchange
Act of 1934 and at the Closing, Bio-Tracking shall be current in such filings
for the past two (2) years. All such reports filed from the date of this
Agreement shall be, as of the time of filing, accurate, not misleading and
complete in all material respects and the financial statements included
therewith shall have been prepared in accordance with generally accepted
accounting principles.
Section
7.05. Quotation
on OTC/BB.
Prior to
the Closing Date, Bio-Tracking shall on a best effort basis have completed
its
application ready to be filed, through a licensed market maker, for approval
of
its common stock to be quoted on the OTC/Bulletin Board.
Section
7.06. Financial
Liabilities at Closing.
As of
the Closing Date, Bio-Tracking shall have no assets and no
liabilities.
Section
7.07. Board
and Shareholder Approval.
(a)
Prior to the Closing, Bio-Tracking shall obtain the approval of its Board
of
Directors of this Agreement and the transactions contemplated
hereby.
(b)
Bio-Tracking shall cause an Information Statement on Schedule 14C to be filed
with the SEC and mailed to its shareholders of record disclosing that
Bio-Tracking has entered into this Agreement and also the transactions
contemplated hereby. Such Information Statement shall also provide that
Bio-Tracking intends to change its name to “Nord Oil International Inc.”, along
with any other action of which Bio-Tracking requires shareholder approval
in
order to close this Agreement in accordance with the terms hereof. Shareholders
of Bio-Tracking holding at least a majority of Bio-Tracking’s issued and
outstanding shares of common stock, as of the record date, shall approve
of this
Agreement and the transactions contemplated hereby either by proxy or written
consent.
Section
7.08. Cancellation
Fee.
In the
event that the transactions contemplated by this Agreement are not closed
by
June 15, 2005 as the result of a material misrepresentation by Bio-Tracking
in
any of its periodic reports filed with the SEC through to current filing
or any
breach by Bio-Tracking of its obligations hereunder or a material
misrepresentation by Bio-Tracking to NORD, Bio-Tracking shall pay to NORD
a
cancellation fee of US$5,000.
Section
7.09 Indebtedness
to and from Officers, Directors and Stockholders.
Bio-Tracking is not indebted to any officer, director, or stockholder of
Bio-Tracking in any amount whatsoever.
ARTICLE
VIII
POST-CLOSING
COVENANTS
The
parties hereto hereby make the following covenants and promises to the other
with the express understanding that such covenants and promises shall survive
past the Closing Date.
Section
8.01. Recapitalization.
The
Shareholders shall not vote in favour of any reverse split of Bio-Tracking’s
stock that is proposed by the Board of Directors of Bio-Tracking or any
shareholders of Bio-Tracking at any time during the two (2) year period that
commences on the Closing Date except for the planned 1:12 reverse
split.
Section
8.02. Transfer
Agent.
The
Shareholders and NORD shall cause Bio-Tracking to continue to use Bio-Tracking’s
current transfer agent, Interwest Transfer, for a period of two (2) years
that
commences on the Closing Date unless otherwise determined by the Bio-Tracking
board post closing.
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Timing.
Time is
of the essence of this Agreement and each party hereto agrees and covenants
to
use their reasonably best efforts to complete the transactions contemplated
hereby in a timely manner.
Section
9.2 Additional
Documentation.
The
parties will execute and deliver such further documents and instruments and
do
all such acts and things as may be reasonably necessary or requisite to carry
out the full intent and meaning of this Agreement and to effect the transactions
contemplated by this Agreement.
Section
9.3 Assignment.
This
Agreement may not be assigned by any party hereto without the prior written
consent of all parties to this Agreement.
Section
9.4 Execution
in Counterparts.
This
Agreement may be executed in several counterparts, each of which will be
deemed
to be an original and all of which will together constitute one and the same
instrument.
Section
9.5 Expenses.
Each
party will pay its legal expenses incurred in connection with the transactions
contemplated hereby, whether or not such transactions are consummated;
provided,
however,
the
parties shall share in the cost of the preparation of this Agreement and
the
preparation and mailing of an Information Statement to BIO-TRACKING’s
shareholders seeking approval of this Agreement and the transactions, which
is
estimated to be approximately $20,000 USD.
Section
9.6 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Nevada, without regard to principles of conflicts of
law.
IN
WITNESS WHEREOF the parties hereto have set their hand and seal as of the
day
and year first above written.
| “SHAREHOLDERS” | BIO-TRACKING CAPITAL II INC., a Florida corporation | |
|
|
||
| _____________________________ |
By:_____________________________
Name:
Title:
|
|
|
_____________________________
|
||
|
_____________________________
|
EXHIBIT
A
LIST
OF SHAREHOLDERS
[name]
[need
address]
[name]
[need
address]
EXHIBIT
B
ALLOCATION
OF BIO-TRACKING SHARES
TO
NORD SHAREHOLDERS
|
Name
of NORD Shareholder and or nominee(s)
|
Number
of NORD Shares Held
|
Number
of Bio-Tracking Shares to be Received
|
|
Monimpex
|
N/A
|
13,500,000
|
|
Xxxxxxxxxxx
Capital and or nominee(s)
|
N/A
|
13,500,000
|
|
80,000,000
|
||
|
25,000,000
|
||
|
10,000,000
|
||
|
10,000,000
|
||
|
10,000,000
|
||
|
10,000,000
|
||
|
8,000,000
|
||
SCHEDULE
3.01
NORD’S
LIST OF JURISDICTIONS
|
1.
|
NORD
is a company in the United States which is allows it to operate
in any US
jurisdiction and owns a Russian Holdco allowed to operate in
Russia.
|
SCHEDULE
3.02
CAPITALIZATION
OF NORD
Common
Stock
|
Name
|
Number
of Shares
|
Warrants,
Options, ROFR, Pre-empted Rights
None.
SCHEDULE
3.16
LIST
OF CONTRACTS
Petroleum
Properties Options
SCHEDULE
4.05
CAPITALIZATION
OF BIO-TRACKING AS OF DECEMBER 1, 2005
Common
Stock - Pre-Forward or Reverse Split Shares
Approx.
340,000,000
