Exhibit 10.7
Acquisition, Stock Purchase, and Exchange Agreement,
dated July 28, 1999
ACQUISITION, STOCK PURCHASE AND EXCHANGE AGREEMENT
THIS AGREEMENT, made as of the 28th day of July, 1999, is by and between
BioLogix International, Ltd., a Delaware corporation (the "PURCHASER") and
Innovative Tracking Solutions, Corporation, a Delaware corporation (the
"COMPANY"), and Xxxxxx Xxxxxxxxx, an individual, Xxx Xxxxxxxxx, an individual,
and Xxx Xxxxx, an individual (collectively referred to as the "SHAREHOLDERS").
WITNESSETH
WHEREAS, the COMPANY is a publicly held Delaware corporation, traded on
the Over-the-Counter Bulletin Board under the symbol "IVTX", with a total of
10,000,000 shares of common stock authorized and 3,785,243 shares issued and
outstanding of which 1,185,243 shares are held by the public and 2,600,000
restricted shares are held by management. Of the shares held by the public,
there are approximately 410,677 Regulation D, Rule 504 free trading shares,
475,191 restricted shares that have been held more than one year and are
currently tradable under Rule 144, and 299,375 restricted shares under Rule 144
that have been held less than one year.
WHEREAS, SHAREHOLDERS are the owners of 2,600,000 shares (the "Shares") of
the Common Stock of Innovative Tracking Solutions Corporation ("COMPANY"); and
WHEREAS, PURCHASER is a publicly held Delaware corporation, traded on the Over-
the-Counter Bulletin Board under the symbol "BGIX" and is in the business of
internet healthcare information services with a total of approximately
20,000,000 freely tradable and 50,000,000 restricted shares of stock issued and
outstanding; and
WHEREAS, SHAREHOLDERS desire to sell 2,550,000 Shares to the PURCHASER on
the terms and conditions set forth in this Acquisition, Stock Purchase and
Exchange Agreement (hereinafter called "Agreement"); and WHEREAS, the COMPANY
desires to acquire the majority of assets of PURCHASER,
specifically, 100% of the proprietary website, "xxxxxxxxxxxxxxxx.xxx" and
related technology (the "WEBSITE"), in exchange for the majority of
outstanding common stock of COMPANY; and
WHEREAS, the PURCHASER desires the COMPANY to conduct a forward split of
its current outstanding stock in order to facilitate a 1 to 1 exchange of
outstanding shares of PURCHASER for shares of COMPANY and to facilitate a 2 to 1
forward exchange of outstanding shares of COMPANY to COMPANY's shareholders
(hereinafter referred to as the "SHARE EXCHANGE PLAN"); and
WHEREAS, it is the intention of the parties that the transactions completed
hereby shall to the extent possible, be structured as a tax deferred exchange
and reorganization, as defined in the Internal Revenue Code of 1986, resulting
in no adverse tax liability to the SHAREHOLDERS, the COMPANY, the PURCHASER and
that all the terms of the Agreement shall be interpreted, construed and enforced
to effectuate this intent.
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows:
AGREEMENT
1) Sale of the Shares. Upon the execution of this Agreement as provided in
Section 2 hereto (the "Closing"), subject to the terms and conditions herein set
forth, and on the basis of the representations, warranties and agreements herein
contained, SHAREHOLDERS shall sell to PURCHASER, and PURCHASER shall purchase
from SHAREHOLDERS, the Shares.
a) Instruments of Conveyance and Transfer. Within fifteen (15) days of the
Closing, SHAREHOLDERS shall deliver certificates representing the Shares to the
Custodian, Xxxxxxx & Beam, for further delivery to the PURCHASER, in form and
substance satisfactory to PURCHASER, as shall be effective to vest in PURCHASER
all right, title and interest in and to all of the Shares, as set forth in
Section 3 herein.
b) Consideration and Payment for the Shares. In consideration for the Shares
PURCHASER shall pay the purchase price equal to $250,000 ("Purchase Price"),
receipt of which is acknowledged.
2) Closing. The Closing shall be deemed to have occurred upon the date of
signing of this Agreement. Following the closing, subsequent actions by the
parties as provided in Section 3 hereto shall occur in a timely manner.
3) Subsequent Actions of SHAREHOLDERS
a) SHAREHOLDERS shall deliver to the Custodian for further delivery to the
PURCHASER stock certificates and any and all other instruments of conveyance and
transfer required by Section 1 hereto.
b) SHAREHOLDERS shall deliver, or cause to be delivered, to the Custodian for
further delivery to the PURCHASER such instruments, documents and certificates
as are required to be delivered by SHAREHOLDERS or its representatives pursuant
to the provisions of this Agreement.
4) Subsequent Actions of CUSTODIAN
a) Upon the delivery of the Shares by SHAREHOLDERS to the CUSTODIAN, the
CUSTODIAN shall hold, administer and distribute the Shares to PURCHASER pursuant
to the terms of this Agreement upon the closing of this Agreement or another
mutually agreeable date.
5) Subsequent Actions of COMPANY
a) The COMPANY shall cancel all issued securities options convertible into IVTX
shares as requested by PURCHASER.
b) The COMPANY shall change its name to "xxxxxxxxxxxxxxxx.xxx, Inc." and
increase its authorized capital stock to one hundred ten million (110,000,000)
shares of common stock.
c) The COMPANY shall implement a forward stock split of 28.22 to 1 of all
outstanding IVTX shares of record as of July 29, 1999 resulting in a total of
approximately 106,819,558 shares outstanding consisting of 24,999,195 tradable
shares and 81,820,362 restricted shares in order to bring its current
outstanding shares to a level that will facilitate an exchange of shares with
the total outstanding shares of PURCHASER. The split shall not be intended to
effect the current trading price of IVTX on the record date. The post-split
shares are hereinafter referred to as the "THCL" shares.
The post-split shares are intended to be allocated as follows:
1. 20,000,000 Tradable shares for PURCHASER's public float (1:1
exchange); and
2. 81,221,614 Restricted shares for PURCHASER's restricted shareholders,
treasury and contingencies; and
3. 3,127,458 Tradable shares for PURCHASER's treasury for
contingencies; and
4. 1,771,736 Tradable shares for COMPANY's public tradable float (2:1
exchange);
5. 598,750 Restricted shares for COMPANY's restricted public
shareholders, excluding management (2:1 exchange); and
6. 100,000 Shares to IVTX management (2:1 exchange).
106,819,558 Total Outstanding Shares
The extra restricted stock not used will be cancelled by PURCHASER and/or
utilized in a private placement, at the discretion of PURCHASER.
d) The COMPANY shall authorize its transfer agent to forward and release
all shareholder lists and relevant records to the PURCHASER's transfer agent
following the forward split.
e) The COMPANY shall assist PURCHASER in responding to any comments received
relative to the COMPANY'S Form 10-SB disclosure document filed with the
Securities and Exchange Commission ("SEC") on December 14, 1998 (the "Form
10-SB), including any amendments thereto.
f) Upon the final completion of the Acquisition and Share Exchange Plan, the
COMPANY's Board of Directors and Officers will resign said directorships and
offices and, by a duly authorized resolution prior to their resignation,
shall appoint Xxx Xxxx as President and Director, and Xxxxxx X. Xxxxxxxx as
Secretary, Treasurer and Director of the COMPANY.
g) The COMPANY shall deliver, or cause to be delivered, to the Custodian for
further delivery to the PURCHASER such instruments, documents and
certificates as are required to be delivered by COMPANY or its
representatives pursuant to the provisions of this Agreement and copies of
all corporate records and securities filings in the COMPANY's possession.
h) The COMPANY shall notify its shareholders as to the details of this
Agreement and require its shareholders to make their final elections for
options previously given to its shareholders to exchange their IVTX shares
into private shares of Innovative Tracking Solutions Corporation, a private
Nevada Corporation, (hereinafter referred to as "ITSC PRIVATE SHARES"), and
to finalize all exchanges and transfers in a timely manner. The parties to
this Agreement understand that prior to the signing of this Agreement, the
COMPANY estimated that all but 325,000 IVTX shares held by COMPANY's public
shareholders would be submitted for exchange into ITSC PRIVATE SHARES. The
parties further understand that this estimate was based on the elections for
exchange previously submitted by the COMPANY's shareholders based on the
COMPANY'S intention to merge with Desert Sun Investments, Ltd. and prior to
the notification to COMPANY's shareholders of the proposed acquisition of
"xxxxxxxxxxxxxxxx.xxx" and the terms of this Agreement. The parties to this
Agreement understand that after notification to the COMPANY's shareholders by
COMPANY of the terms of this Agreement, that the COMPANY is obligated to
allow its shareholders to change their elections for exchange of IVTX shares
into ITSC PRIVATE SHARES, and that said elections will undoubtedly change.
The parties understand that said changes in elections could result in as much
as 100% of IVTX shares held by the COMPANY'S public shareholders remaining
un- exchanged for ITSC PRIVATE SHARES and that all un- exchanged IVTX shares
that remain to be held by the COMPANY'S shareholders, including 50,000 shares
retained by COMPANY's current management, shall be split, and upon surrender,
shall be exchangeable into THCL shares on a basis of two shares of THCL for
each IVTX post-split share held.
i) The COMPANY shall use its best efforts to secure from each IVTX
shareholder of record as of July 29, 1999 a signed affidavit that releases
all claim and title to 26.22 post-split shares pursuant to the SHARE EXCHANGE
PLAN thereby allowing said post-split shares to be exchanged on a 1 to 1
basis with BGIX shareholders while resulting in a 2 to 1 forward exchange for
COMPANY's shareholders.
j) The COMPANY shall use its best efforts to coordinate the sale of all
shares held in THCL by the COMPANY's existing shareholders, including shares
retained by COMPANY's management, in a manner that minimizes the number of
shares being sold in the market to approximately 10% per month of the total
shares held by COMPANY's public shareholders over a period of ten (10)
consecutive months following the date of this Agreement. The parties
understand that any shares held by COMPANY's existing management or
affiliated parties shall not be tradable for a minimum of ninety (90) days
following the execution of this Agreement but that the monthly limitation
shall still expire ten (10) months from the date of this Agreement. The
parties to this Agreement understand that no assurance can be given that the
monthly limitation will be achieved, and if not achieved, shall not
constitute a breach of this Agreement.
6) Subsequent Actions of PURCHASER.
a) The PURCHASER shall deliver the Purchase Price as required in Section 1(b)
of this Agreement.
b) The PURCHASER shall deliver, or cause to be delivered, to SHAREHOLDERS and
COMPANY such instruments, documents and certificates as are required to be
delivered by the PURCHASER or its representatives pursuant to the provisions
of this Agreement.
c) The PURCHASER shall transfer its WEBSITE to the COMPANY.
d) The PURCHASER shall handle the redistribution of all THCL shares as
follows: each free-trading BGIX share submitted for exchange by a BGIX
shareholder shall be exchanged for one TRADABLE THCL SHARE and each
restricted BGIX share submitted for exchange by a BGIX shareholder shall be
exchanged for one restricted THCL share. Each free trading IVTX share, held
as of record date of July 29, 1999, submitted for exchange by an IVTX
shareholder shall be exchanged for two TRADABLE THCL SHARES and each IVTX
restricted share, held as of record date of July 29, 1999, submitted for
exchange by an IVTX shareholder shall be exchanged for two restricted THCL
shares. All IVTX shares that bear a restricted legend that are submitted for
exchange into THCL shares shall be exchanged for certificates of THCL that
are time-stamped with the original issue date of the IVTX shares, thereby not
commencing a new holding period. However, it is understood that the foregoing
exchange of restricted BGIX shares into THCL restricted shares may recommence
the holding period for said shares.
e) The PURCHASER shall bear the sole responsibility of conducting all
transactions for exchange by way of a proper registration or appropriate
exemption.
f) The PURCHASER agrees that all transfer agent costs incurred for both the
PURCHASER'S and the COMPANY's transfer agents relative to this Agreement,
IVTX, BGIX and THCL, shall be the sole responsibility of the PURCHASER.
g) The PURCHASER shall cancel all extra THCL shares at a future date that is
mutually agreeable to all the parties of this Agreement.
h) The PURCHASER shall include feature product coverage of the Private
Practice" Vibration Reminder Disk product line and programs on the
"xxxxxxxxxxxxxxxx.xxx" website each month for at least six months with banner
ads at least five days per month. The PURCHASER also agrees to include video
streaming of the feature segment of the Private Practice" Vibration Reminder
Disk which will air on an upcoming edition of American Medical Review (AMR)
on National Public Television upon the approval of AMR.
7) Representations and Warranties of SHAREHOLDERS
a) Validity of SHAREHOLDERS' Shares. The Shares to be delivered to PURCHASER
hereunder from the SHAREHOLDERS have been duly authorized by the appropriate
corporate action of COMPANY.
b) Clean Title of the Shares. The SHAREHOLDERS shall transfer title, in and
to the Shares to PURCHASER free and clear of all liens, security interests,
pledges, encumbrances, charges, restrictions, demands and claims, of any kind
and nature whatsoever, whether direct or indirect or contingent.
c) Delivery of the Shares. SHAREHOLDERS shall deposit with the Custodian,
certificates in fully transferable form with Medallion Signature Guaranteed
signatures representing the Shares subject to no liens, security interests,
pledges, encumbrances, charges, restrictions, demands or claims in any other
party whatsoever, except as set forth in the legend on the certificate, which
legend shall provide as follows:
THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SHARES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION
OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
d) Restricted Shares. PURCHASER acknowledges that the Shares are "restricted
securities" (as such term is defined in Rule 144 ("Rule 144") promulgated
under the Securities Act of 1933, as amended (the "Act"), that the Shares may
include the foregoing restrictive legend, and, except as otherwise set forth
in this Agreement, that the Shares cannot be sold except in accordance with
Rule 144 promulgated by the Securities and Exchange Commission, or unless
registered with the SEC and qualified by appropriate state securities
regulators, or unless PURCHASER otherwise complies with an exemption from
such registration and qualification (including, without limitation,
compliance with Rule 144).
8) Representations and Warranties of the COMPANY.
a) Organization. COMPANY is a corporation duly organized, validly existing,
and in good standing under the laws of Delaware, has all necessary corporate
powers to own properties and to carry on its business as now owned and
operated by it, is duly qualified to do business and is in good standing in
each of the jurisdictions where its business requires qualification. COMPANY
is currently in good standing with its Transfer Agent, Atlas Stock Transfer.
b) Authority. The Board of Directors of COMPANY have authorized the execution
of this Agreement and the transactions contemplated herein and has full power
and authority to execute, deliver, and perform this Agreement based on a
unanimous vote of shareholders obtained at a meeting duly convened on April
12, 1999.
c) Capital. The authorized capital stock of COMPANY consists of 10,000,000
shares of $.001 par value common stock of which 3,785,243 shares are
currently issued and outstanding. All of the issued and outstanding shares
are validly issued, fully paid, and non-assessable. All currently
outstanding shares of COMPANY'S common stock have been issued in compliance
with applicable federal and state securities laws.
d) Subsidiaries. COMPANY has no subsidiaries and does not own any interest in
any other enterprise, whether or not enterprise is a corporation.
e) Directors and Officers. The COMPANY's Form 10-SB, as filed with the SEC on
December 14, 1998, including all amendments thereto, contains the names and
titles of all officers and directors of COMPANY as of the date of this
Agreement.
f) Financial Statements. The COMPANY's Form 10-SBA filed with the SEC on
April 5, 1999 includes the COMPANY's audited financial statements as of
December 31, 1998. The financial statements have been prepared in accordance
with generally accepted accounting principles and practices consistently
followed throughout the period indicated and fairly present the financial
position of COMPANY as of the dates of the balance sheets included in the
financial statements and the results of operations for the periods indicated.
g) Absence of Changes. Since the date of COMPANY's most recent financial
statements, the COMPANY's assets and liabilities have been transferred to
another entity. All such assets formerly owned by the COMPANY are hereby
excluded from this transaction.
h) Absence of Undisclosed Liabilities. As of the date of COMPANY's most
recent balance sheet, included in the Form 10-SB, it did not have any
material debt, liability or obligation of any nature, whether accrued,
absolute, contingent or otherwise, and whether due or to become due, that is
not reflected in such balance sheet.
i) Tax Returns. With the times and in the manner prescribed by law, COMPANY
has filed all federal, state or local tax returns required by law, has paid
all taxes, assessments and penalties due and payable and has made adequate
provisions on its most recent balance sheet for any unpaid taxes. There are
no present disputes as to taxes of any nature payable by COMPANY.
j) Investigation of Financial Condition. Without in any manner reducing or
otherwise mitigating the representations contained herein, representatives of
PURCHASER shall have the opportunity to meet with COMPANY's accountants and
attorneys to discuss the financial condition of COMPANY. COMPANY shall make
available to representatives of PURCHASER all books and records of COMPANY.
k) Compliance with Laws. COMPANY has complied with, and is not in violation
of, applicable federal, state or local statutes, laws and regulations
affecting its properties, securities or the operation of its business.
l) Litigation. COMPANY is not a party to, nor to the best of its knowledge is
there pending or threatened, any suit, action, arbitration or legal,
administrative or other proceedings, or governmental investigation concerning
its business, assets or financial condition.
m) Ability to Carry Out Obligations. The execution and delivery of this
Agreement by COMPANY and the performance of its obligations hereunder will
not cause, constitute, conflict with or result in (i) any breach of the
provisions of any license, indenture, mortgage, charter, instrument,
certificate of incorporation, bylaw or other agreement or instrument to which
it is a party or by which it may be bound, nor will any consents or
authorizations of any party other than those hereto be required, (ii) an
event that would permit any party to any agreement or instrument to terminate
it or to accelerate the maturity of any indebtedness or other obligation, or
(iii) an event that would result in a creation or imposition of any lien,
charge, or encumbrance on any asset.
n) Full Disclosure. None of the representations and warrantees made by
COMPANY herein, or in any exhibit, certificate, or memorandum furnished or to
be furnished by it or on its behalf, contains or will contain any untrue
statement of a material fact, or omits any material fact, the omission of
which would be misleading.
o) Assets. COMPANY has had good and marketable title to all of its property
free and clear of any and all liens, claims and encumbrances.
p) Indemnification. COMPANY agrees to indemnify, defend and hold harmless
PURCHASER against and in respect to any and all claims, demands, losses,
costs, expenses, obligations, liabilities or damages, including interest,
penalties, and reasonable attorneys fees, incurred or suffered, which arise
out of, result from or relate to any breach of, or failure by COMPANY to
perform any of its representations, warranties, or covenants in this
Agreement or in any exhibit or other instrument furnished, or to be
furnished, under this Agreement and from any and all claims, demands, losses,
costs, expenses, obligations, liabilities, or damages which arise form
activities prior to the date of the transfer of assets from PURCHASER to
COMPANY as set forth in Section 6(c).
q) Validity of COMPANY Shares. The Shares of COMPANY $.001 par value common
stock to be issued pursuant to this Agreement will be duly authorized,
validly issued, fully paid and nonassessable under Delaware law.
9. Representations of Warranties of PURCHASER
a) Organization. PURCHASER is a corporation duly organized, validly existing,
and in good standing under the laws of Delaware, has all necessary corporate
powers to own properties and to carry on its business as now owned and
operated by it, is duly qualified to do business, and is in good standing in
each of the jurisdictions where its business requires qualification.
b) Capital. The authorized capital stock of PURCHASER consists of one hundred
million (100,000,000) shares of common stock of which approximately
20,000,000 free trading shares and 50,000,000 restricted shares are currently
issued and outstanding. All of the issued and outstanding shares are validly
issued, fully paid and nonassessable.
c) Subsidiaries. PURCHASER has no subsidiaries.
d) Directors and Officers. Xxx Xxxx, President and Xxxxxx X. Xxxxxxxx, Vice
President, C.O.O., Secretary, and Treasurer are the officers of the Company.
e) Investigation of Financial Condition. Without in any manner reducing or
otherwise mitigating the representations contained herein, COMPANY and/or
its attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of PURCHASER. PURCHASER shall
make available to COMPANY and/or its attorneys all books and records of
PURCHASER. Further, PURCHASER shall provide a copy of its most recent
financial statements to COMPANY and SHAREHOLDERS prior to the Closing. If the
transaction contemplated hereby is not completed, all documents received by
COMPANY and/or its attorneys shall be returned to PURCHASER and all
information so received shall be treated as confidential.
f) Compliance with Laws. PURCHASER has complied with, and is not in violation
of, applicable federal, state or local statutes, laws and regulations
affecting its properties, securities or the operation of its business.
g) Litigation. PURCHASER is not a party to, nor to the best of its knowledge,
is there pending or threatened, any suit, action, arbitration or legal,
administrative or other proceedings, or governmental investigation concerning
its business, assets or financial condition. PURCHASER is not in default with
respect to any order, writ, injunction or decree of any federal, state,
local, or foreign court or agency, nor is it engaged in, nor does it
anticipate it will be necessary to engage in, any lawsuits to recover money
or real or personal property.
h) Authority. The SHAREHOLDERS and Board of Directors of PURCHASER have
authorized the execution of this Agreement and the transactions contemplated
herein and it has full power and authority to execute, deliver, and perform
this Agreement.
i) Ability to Carry Out Obligations. The execution and delivery of this
Agreement by PURCHASER and the performance of its obligations hereunder will
not cause, constitute, conflict with or result in (i) any breach of the
provisions of any license, indenture, mortgage, charter, instrument,
certificate of incorporation, bylaw or other agreement or instrument to which
it is a party or by which it may be bound, nor will any consents or
authorizations of any party other than those hereto be required, (ii) an
event that would permit any party to any agreement or instrument to terminate
it or to accelerate the maturity of any indebtedness or other obligation, or
(iii) an event that would result in a creation or imposition of any lien,
charge, or encumbrance on any asset.
j) Full Disclosure. None of the representations and warranties made by
PURCHASER herein, or in any exhibit, certificate, or memorandum furnished or
to be furnished by it or on its behalf, contains or will contain any untrue
statement of a material fact, or omits any material fact, the omission of
which would be misleading.
k) Assets. PURCHASER has good and marketable title to all of its property
free and clear of any and all liens, claims and encumbrances.
l) Indemnification. PURCHASER agrees to defend and hold SHAREHOLDERS and
COMPANY and its officers and directors harmless against and in respect to any
and all claims, demands, losses, costs, expenses, obligations, liabilities or
damages, including interest, penalties, and reasonable attorneys fees, that
it shall incur or suffer, which arise out of, result from or relate to any
breach of, or failure by PURCHASER to perform any of its representations,
warranties, or covenants in this Agreement or in any exhibit or other
instrument furnished, or to be furnished, under this
Agreement and from any and all claims, demands, losses, costs, expenses,
obligations, liabilities, or damages which arise form activities subsequent
to the date of the transfer of assets from PURCHASER to COMPANY as set forth
in Section 6(c).
m) Investment Intent. PURCHASER understands and acknowledges that the Shares
offered for sale from the SHAREHOLDERS pursuant to this Agreement are being
offered in reliance upon an exemption from registration requirements of the
Act, pursuant to the exemption commonly known as the Section 4 1 1/2
exemption and makes the following representations, agreements and warranties
with the intent that the same may be relied upon in determining the
suitability of PURCHASER as a buyer of the Shares from the SHAREHOLDERS. The
shares to be exchanged upon the Closing are offered pursuant to Section 4(2)
of the Act. Further:
i. The Shares are being acquired solely for the account of PURCHASER, for
investment purposes only, and not with a view to resale or redistribution in
violation of applicable state and federal securities laws and with no present
intention of distributing or reselling any part of COMPANY's common stock
acquired; and that any subsequent sale of the shares shall be in compliance
with the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
ii. PURCHASER agrees not to dispose of COMPANY's common stock or any portion
thereof unless and until counsel for COMPANY shall have determined that the
intended disposition is permissible and does not violate the Act or any
applicable Federal or state securities laws, or the rules and regulations
thereunder;
iii. PURCHASER agrees that the certificates evidencing the Shares acquired
pursuant to this Agreement may have a legend placed thereon stating that they
have not been registered under the Act or any state securities laws and
setting forth or referring to the restrictions on transferability and sale of
COMPANY's common stock.
iv. PURCHASER acknowledges that COMPANY has made all records and
documentation pertaining to COMPANY's common stock available to them and to
their qualified representatives, if any, and has offered such person or
persons an opportunity to ask questions and further discuss the proposed
acquisition of COMPANY' s common stock, and any available information
pertaining thereto, with the officers and directors of COMPANY, and that all
such questions and information requested have been answered by COMPANY and
its officers and directors to PURCHASER's satisfaction;
v. PURCHASER has carefully evaluated their financial resources and investment
position and the risks associated with this transaction and are able to bear
the economic risks of this transaction; and they have substantial knowledge
and experience in financial, business, and investment matters and are
qualified as sophisticated investors, and are capable of evaluating the
merits and risks of this transaction; and they desire to acquire COMPANY's
common stock on the terms and conditions set forth;
vi. PURCHASER is able to bear the economic risk of an investment in the
Shares; and
vii. PURCHASER understand that an investment in the Shares is not liquid and
PURCHASER has no need for liquidity in this investment.
n) Receipt of Relevant Information. PURCHASER has received from COMPANY all
financial and other information concerning COMPANY and its officers and
directors, including, but not limited to, the Form 10- SB, and all other
documents and information they have requested.
o) Public "Shell" Corporation. PURCHASER is aware that COMPANY has public
shareholders and is a "shell" corporation without significant assets or
liabilities, and further that public companies are subject to extensive and
complex state, federal, and other regulations. Among other requirements,
PURCHASER is aware that a Form 8-K must be filed with the SEC within fifteen
days after the Closing which filing requires that audited financial statements
be filed within sixty days after the filing of the Form 8-K, and they agree that
such responsibility shall not be the responsibility of COMPANY, its officers,
directors, or employees nor the SHAREHOLDERS, but the sole responsibility of the
new officers and directors of COMPANY. PURCHASER is aware of the legal
requirements and obligations of public companies, understands that regulatory
efforts regarding public shell transactions similar to the transaction
contemplated herein has been and is currently being exerted by some state
agencies, the SEC, and the National Association of Securities Dealer, Inc.
(NASD), and are fully aware of their responsibilities, following the Closing, to
fully comply with all securities laws and regulations, and hereby agrees to do
so.
p) No Assurances of Warranties. PURCHASER acknowledges that there can be no
assurance regarding the tax consequences of this transaction, nor can there be
any assurance that the Internal Revenue Code or the regulations promulgated
thereunder will not be amended in such manner as to deprive them of any tax
benefit that might otherwise be received. PURCHASER is relying upon the advice
of their own tax advisors with respect to the tax aspects of this transaction.
No representations or warranties have been made by COMPANY, its officers,
directors, affiliates or agents, or by the SHAREHOLDERS as to the benefits to be
derived by PURCHASER in completing this transaction, nor have any of them made
any warranty or agreement, expressed or implied, as to the tax or securities
consequences of the transactions contemplated by this Agreement or the tax or
securities consequences of any action pursuant to or growing out of this
Agreement.
q) State Fees. PURCHASER acknowledges that PURCHASER shall be fully responsible
for all fees and charges incurred by the State of Delaware relative to the
outstanding capital stock of THCL.
10) Legal Opinion. COMPANY, upon the Closing, will furnish PURCHASER an opinion
of its counsel to the affect that:
a) COMPANY is duly organized, valid and existing in good standing under the laws
of the State of Delaware, and has authority to conduct its business, to enter
into this Agreement, and in connection therewith has performed all acts required
pursuant to the laws of Delaware in effecting this Agreement.
b) COMPANY has the authority, pursuant to the corporate laws of the State of
Delaware, to issue or exchange its shares of common stock.
c) That such counsel has examined the representations and warranties of
COMPANY hereunder and to counsel's best knowledge, the representations and
warranties of COMPANY are true in connection therewith, and that counsel may
rely upon certificates of officers and directors of COMPANY.
d) That COMPANY is current in its reporting requirements with the SEC.
e) That there is no pending or threatened litigation or contingent liabilities
against COMPANY.
f) Such other opinions as counsel may be requested to issue and can issue based
upon counsel's review of any documents or instruments in connection therewith
and associated only with the terms and transactions contemplated by this
Agreement.
11) Investment Banking Fees. The Parties agree that Xxxxxx Xxxxxx Securities,
Inc. (the "Investment Banker") has acted as the investment banker for both
parties in the consummation of this purchase and sale in connection with this
Agreement. The Parties also agree that the Investment Banker shall be paid a fee
of 50,000 shares of restricted common stock of THCL to be issued to the
investment Banker as soon as practicable after the Closing.
12) Contingencies. Purchaser understands that the COMPANY may not be able to
obtain a surrender of certain pre-split shares of COMPANY totaling approximately
25,000 relative to the COMPANY'S previous reverse-merger agreement with Desert
Sun Investments and that if said surrender and affidavit for the release of any
and all claims to the 26.22 post-split shares is not received, it shall
constitute a breach of this Agreement.
13) Termination. Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to delivery of the Purchase Price
solely by the mutual consent of all of the parties. In the event the transfer of
PURCHASER's WEBSITE into the COMPANY does not occur by September 1, 1999 thereby
commencing the exchange and distribution of BGIX shares into THCL shares, this
Agreement shall be terminated, all transfer of shares by SHAREHOLDERS shall be
rescinded and all monies paid hereunder by PURCHASER shall be non-refundable.
14) Waiver and Amendment. Any term, provision, covenant, representation,
warranty or condition of this Agreement may be waived, but only by a written
instrument signed by all the parties of this Agreement. The failure or delay of
any party at any time to require performance of any provision hereof or to
exercise its rights with respect to any provision hereof shall in no manner
operate as a waiver of, or affect such party's right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any term,
provision, covenant, representation or warranty contained in this Agreement, in
any one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such condition or breach or waiver of any other
condition, or of the breach of any other term, provision, covenant,
representation or warranty. No modification or amendment of this Agreement shall
be valid and binding unless it be in writing and signed by all the parties
hereto.
15) Rights and Responsibilities of the Custodian The following provisions shall
apply to the appointed Custodian, Xxxxxxx & Beam, in the course of performing
hereunder:
a. Status of Custodian. The Parties acknowledge and agree that, in acting
hereunder, the Custodian has not and is not acting as counsel to COMPANY or
SHAREHOLDERS, in regard to whom the Custodian is acting solely as Custodian
hereunder.
b. Discretion of the Custodian. In acting pursuant to this Agreement, the
Custodian shall be fully protected in every reasonable exercise of Custodian's
discretion and shall have no obligation hereunder to any other party except as
expressly set forth herein.
c. Fees and Expenses of the Custodian. The Custodian may charge a reasonable fee
for custodial services, which will cover all normal and reasonable expenses of
holding the shares. Such fees and expenses shall be paid by PURCHASER.
d. Liability of the Custodian. In performing any of Custodian's duties
hereunder, the Custodian shall not incur any liability to anyone for any
damages, losses, or expenses, except for willful default or negligence and
shall, accordingly, not incur any such liability with respect to any action
taken or omitted in good faith or taken or omitted in reliance upon an
instrument, including written advices provided for herein, not only as to its
due execution and the validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained herein, which the
Custodian shall in good faith believe to be genuine, to have been signed or
presented by a proper person or persons, and to conform with the provisions of
this Agreement.
e. Information and Indemnity. The Parties agree to provide to the Custodian all
information necessary to facilitate the administration of this Agreement, and
the Custodian may rely upon any representation so made. The Parties hereby agree
jointly and severally, to indemnity and hold harmless the Custodian against any
and all claims, losses, damages, liabilities, costs and expenses, including
reasonable costs of investigation aid counsel fees and disbursements, which may
be imposed upon the Custodian or incurred by the Custodian in connection with
acceptance of appointment of Custodian hereunder or the performance of
Custodian's duties hereunder, including any litigation arising from this
Agreement or involving the subject matter hereof. However, such indemnity shall
not include acts or omissions to act of the Custodian which involve gross
negligence or willful misconduct.
f. Interpleader. If at any time, a dispute arises as to the duties of the
Custodian or the terms hereof, the Custodian may deposit the Shares with the
Clerk of the District Court of Orange County, California, and may interplead the
other parties hereto. Upon so depositing the Shares and filing its complaint in
interpleader, the Custodian shall be completely discharged and released from all
further liability or responsibility hereunder. The parties hereto, for
themselves, their heirs, successors, assigns and legal representatives, do
hereby submit themselves to the jurisdiction of said Court and do hereby appoint
the Clerk of the said Court as their agent for services of all process in
connection with any such proceedings.
g. Notices: Orders of Court, Etc. The Custodian hereby is expressly authorized
and directed to disregard any and all notices or warnings not specifically
called for in or permitted by this Agreement, or by any other
person or entity not party to this Agreement, excepting only orders or
process of Court, and is hereby expressly authorized to comply with and obey
any and all orders, judgments, or decrees of any Court, and in case the
Custodian obeys or complies with any such order, judgment, or decree of any
Court, shall not be liable to any of the parties hereto or to any other
person, firm, or corporation by reason of such compliance, notwithstanding
that any such order, judgment, or decree may be subsequently reversed,
modified, annulled, set aside or vacated, or found to have been entered
without jurisdiction.
16) Notices. Any notice, request, instruction, or other document required by the
terms of this Agreement, or deemed by any of the Parties hereto to be desirable,
to be given to any other Party hereto shall be in writing and shall be given by
facsimile, personal delivery, overnight delivery, or mailed by registered or
certified mail, postage prepaid, with return receipt requested, to the following
addresses:
TO PURCHASER:
BioLogix International, Ltd.
Xxx Xxxx, President
0 Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
BioLogix International, Ltd.
Xxxxxx X. Xxxxxxxx, Director
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Phone:000-000-0000
Fax: 000-000-0000
WITH A COPY TO:
Xxxxxxx & Beam
Two Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Esq.
Fax: 949/000-0000
TO CUSTODIAN:
Xxxxxxx & Beam
Two Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Fax: 949/000-0000
TO COMPANY:
Innovative Tracking Solutions Corporation
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx, President
Fax: 949/000-0000
WITH A COPY TO:
Xxx Xxxx 000 Xxxxx. X Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
TO SHAREHOLDERS:
Xxxxxx Xxxxxxxxx
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Fax: 949/000-0000
Xxx Xxxxxxxxx
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Fax: 949/000-0000
Xxx Xxxxx
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Fax: 949/000-0000
The persons and addresses set forth above may be changed from time to time
by a notice sent as aforesaid. If notice is given by facsimile, personal
delivery, or overnight delivery in accordance with the provisions to this
Section, said notice shall be conclusively deemed given at the time of such
delivery. If notice is given by mail in accordance with the provisions of this
Section, such notice shall be conclusively deemed given seven business days
after deposit thereof in the United States mail.
17) Counterparts: Facsimile Signatures. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement shall
be deemed a valid and binding execution of this Agreement.
18) Jurisdiction. Any dispute, claim, or other legal proceedings in relation to
this Agreement shall be held in the County of Orange, State of California.
19) Governing Law. This Agreement shall be deemed to be a contract made under
the laws of the State of California and for all purposes shall be governed by
and construed in accordance with the laws of said State.
20) Professional Fees. In the event either party hereto shall commence
legal proceedings against the other to enforce the terms hereof, or to
declare rights hereunder, as the result of a breach of any Covenant or
condition of this Agreement, the prevailing party in any such proceeding
shall be entitled to recover from the losing party its costs of suit,
including reasonable attorneys' fees, accountants' fees, and experts' fees.
21) Miscellaneous Provisions.
a) This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, their beneficiaries, heirs, representatives, assigns, and all
other successors in interest.
b) Each of the parties shall execute any and all documents required to be
executed and perform all acts required to be performed in order to effectuate
the terms of this Agreement.
c) This Agreement contains all of the agreements and understandings of the
parties hereto with respect to the matters referred to herein, and no prior
agreement or understanding pertaining to any such matters be effective for any
purpose.
d) Each of the parties hereto has agreed to the use of the particular language
of the provisions of this Agreement, and any question of doubtful interpretation
shall not be resolved by any rule of interpretation against the party who causes
the uncertainty to exist or against the draftsman.
e) This Agreement may not be superseded, amended or added to except by an
agreement in writing, signed by the parties hereto, or their respective
successors-in-interest.
f) Any waiver of any provision of this Agreement shall not be deemed a waiver of
such provision as to any prior or subsequent breach of the same provision or any
other breach of any other provision of this Agreement.
g) If any provision of this Agreement is held, by a court of competent
jurisdiction, to be invalid, or enforceable, said provisions shall be deemed
deleted, and neither such provision, its severance or deletion shall affect the
validity of the remaining provisions of this Agreement, which shall,
nevertheless, continue in full force and effect.
h) The parties shall use their reasonable best efforts to obtain the consent of
all necessary persons and agencies to the transfer of shares provided for in
this Agreement.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement effective as
of the date first above written.
COMPANY PURCHASER
INNOVATIVE TRACKING SOLUTIONS CORP. BIOLOGIX INTERNATIONAL, LTD.
S/s Xxxxxx Xxxxxxxxx S/s Xxx Xxxx
----------------------- ---------------------
By: Xxxxxx Xxxxxxxxx By: Xxx Xxxx
Its: President Its: President
SHAREHOLDERS S/s Xxxxxx X. Xxxxxxxx
---------------------
S/s Xxxxxx Xxxxxxxxx By: Xxxxxx X. Xxxxxxxx
------------------------ Its: Vice President,
Xxxxxx Xxxxxxxxx C.O.O., Secretary
S/s Xxx Xxxxxxxxx CUSTODIAN
----------------------
Xxx Xxxxxxxxx XXXXXXX & BEAM
S/s Xxx Xxxxx S/s Xxxxx Xxxxxxx
---------------------- ------------------------
Xxx Xxxxx Xxxxx Xxxxxxx
