SHARE EXCHANGE AGREEMENT
THIS
SHARE EXCHANGE AGREEMENT, dated as of the 18th
day of
February, 2008 (the “Agreement”),
is
made by and among Genesis Holdings, Inc., a Nevada corporation (the
“Company”);
Genesis Land, Inc., a Nevada corporation (“Genesis
Land”);
and
the Xxxxxxxx Third Family Limited Partnership, a Texas limited partnership
(the
“Shareholder”).
The
Company, Genesis Land and the Shareholder are collectively referred to herein
as
the “Parties”.
WITNESSETH:
WHEREAS,
the Shareholder owns 19,000,000 shares of common stock of the
Company.
WHEREAS,
the Company desires to acquire from Shareholder and cancel, and Shareholder
desires to return to the Company, 16,780,226 of Shareholder’s shares of common
stock of the Company (the “Company
Shares”)
in
exchange for the later transfer by the Company of all of the issued and
outstanding shares of the capital stock of Genesis Land (the “Genesis
Land Shares”)
to the
Shareholder on the terms and conditions set forth herein (the “Exchange”).
WHEREAS,
after giving effect to the cancellation of the Company Shares, there would
be
approximately 5,000,000 shares of Company Common Stock issued and
outstanding.
WHEREAS,
the Parties intend, by executing this Agreement, to implement a tax-deferred
exchange of property governed by Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal
Revenue Code of 1986, as amended (the “Code”).
WHEREAS,
the Company has entered into a Share Exchange Agreement with Bioauthorize,
Inc.,
a Colorado corporation ("Bioauthorize")
and
certain Bioauthorize shareholders of even date herewith (the "Bioauthorize
Share Exchange Agreement"),
and
it is a condition to the closing of the Bioauthorize Share Exchange Agreement
that the Parties enter into this Agreement.
NOW,
THEREFORE, in consideration, of the promises and of the mutual representations,
warranties and agreements set forth herein, the Parties hereto agree as
follows:
ARTICLE
I
THE
EXCHANGE
1.1 The
Exchange. Subject
to the terms and conditions of this Agreement:
(a) concurrent
with execution of this Agreement, the
Shareholder agrees to deliver to the Company a duly endorsed stock power apart
from certificate representing the Company Shares for cancellation by the
Company, and
(b) on
the
Closing Date (as hereinafter defined), the Company agrees to deliver to the
Shareholder duly endorsed certificates representing the Genesis Land
Shares.
1.2 Time
and Place of Closing. The
closing of the transactions contemplated hereby (the “Closing”)
shall
take place at the offices of Xxxxxx Xxxxxxxx PLC on or before March 17, 2008
but
in no event prior to the closing of the Bioauthorize Share Exchange Agreement
(the “Closing
Date”),
or at
such place and time as mutually agreed upon by the Parties hereto. If the
Closing does not occur by the Closing Date, the Shareholder at its sole option
shall have the right to demand the return of the Company Shares, which the
Company agrees to complete as soon as reasonably practicable following receipt
of such demand.
1
1.3 Tax
Consequences. It
is intended by the Parties hereto that for United States income tax purposes,
the return of the Company Shares by the Shareholder to the Company in exchange
for Genesis Land Shares constitutes a tax-deferred exchange within the meaning
of Section 351 of the Code.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Shareholder that now and as of the
Closing:
2.1 Due
Organization and Qualification; Due Authorization.
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada, with full corporate power and
authority to own, lease and operate its respective business and properties
and
to carry on its business in the places and in the manner as presently conducted
or proposed to be conducted. The Company is in good standing as a foreign
corporation in each jurisdiction in which the properties owned, leased or
operated, or the business conducted, by it requires such qualification except
for any such failure, which when taken together with all other failures, is
not
likely to have a material adverse effect on the business of the
Company.
(b) The
Company does not own, directly or indirectly, any capital stock, equity or
interest in any corporation, firm, partnership, joint venture or other entity
other than Genesis Land and Bioauthorize, which are or will be the Company’s
wholly-owned subsidiaries prior to the Closing.
(c) The
Company has all requisite corporate power and authority to execute and deliver
this Agreement, and to consummate the transactions contemplated hereby and
thereby. The Company has taken all corporate action necessary for the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, and this Agreement constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as may be affected by bankruptcy, insolvency, moratoria or
other similar laws affecting the enforcement of creditors’ rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefore
may
be brought.
2.2 No
Conflicts or Defaults. The
execution and delivery of this Agreement by the Company and the consummation
of
the transactions contemplated hereby do not and shall not (a) contravene the
Articles of Incorporation or Bylaws of the Company or (b) with or without the
giving of notice or the passage of time (i) violate, conflict with, or result
in
a breach of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or license to which
the Company is a party or by which the Company is bound, or any judgment, order
or decree, or any law, rule or regulation to which the Company is subject,
(ii)
result in the creation of, or give any party the right to create, any lien,
charge, encumbrance or any other right or adverse interest (“Liens”)
upon
any of the assets of the Company, (iii) terminate or give any party the right
to
terminate, amend, abandon or refuse to perform,
any material agreement, arrangement or commitment to which the Company is a
party or by which the Company’s assets are bound, or (iv) accelerate or modify,
or give any party the right to accelerate or modify, the time within which,
or
the terms under which, the Company is to perform any duties or obligations
or
receive any rights or benefits under any material agreement, arrangement or
commitment to which it is a party.
2
2.3 Capitalization. The
authorized capital stock of the Company immediately prior to giving effect
to
the transactions contemplated hereby consists of 25,000,000 shares of Company
Common Stock, $0.001 par value. As of the date hereof and prior to the return
of
the Company Shares for cancellation, there are 21,780,226 shares of Company
Common Stock issued and outstanding. All of the outstanding shares of Company
Common Stock are duly authorized, validly issued, fully paid and nonassessable,
and have not been issued in violation of any preemptive right of shareholders.
There is no outstanding voting trust agreement or other contract, agreement,
arrangement, option, warrant, call, commitment or other right of any character
obligating or entitling the Company to issue, sell, redeem or repurchase any
of
its securities, other than the Bioauthorize Share Exchange Agreement and this
Agreement, and there is no outstanding security of any kind convertible into
or
exchangeable for Company Common Stock. The Company has not granted registration
rights to any person.
2.4 Financial
Statements. The
Company has provided the Shareholder copies of the (i) the consolidated balance
sheet of the Company at December 31, 2006, and the related consolidated
statements of income, shareholders’ equity and cash flows for the years ended
December 31, 2006 and 2005, including the notes thereto, as audited by Xxxxxx
& Xxxxxx, LLC, independent registered public accounting firm, and (ii) the
unaudited condensed consolidated balance sheet of the Company at September
30,
2007, and the related unaudited condensed consolidated statements of income,
comprehensive income and cash flows for the three month and nine month periods
then ended (the “Financial
Statements”).
The
Financial Statements, together with the notes thereto, have been prepared in
accordance with U.S. generally accepted accounting principles applied on a
basis
consistent throughout all periods presented. The Financial Statements present
fairly the financial position of the Company as of the dates and for the periods
indicated. The books of account and other financial records of the Company
have
been maintained in accordance with good business practices.
2.5 No
Undisclosed Assets or Liabilities. Except
as set forth on the Financial Statements, the Company does not have any (a)
material assets of any kind or (b) material liabilities or obligations, whether
secured or unsecured, accrued, determined, absolute or contingent, asserted
or
unasserted or otherwise.
2.6 Litigation. There
is no claim, dispute, action, suit, proceeding or investigation pending or,
to
the knowledge of the Company, threatened, against or affecting the business
of
the Company, or challenging the validity or propriety of the transactions
contemplated by this Agreement, at law or in equity or admiralty or before
any
federal, state, local, foreign or other governmental authority, board, agency,
commission or instrumentality, nor to the knowledge of the Company, has any
such
claim, dispute, action, suit, proceeding or investigation been pending or
threatened, during the twelve month period preceding the date hereof. There
is
no outstanding judgment, order, writ, ruling, injunction, stipulation or decree
of any court, arbitrator or federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, against or materially
affecting the business of the Company. The Company has not received any written
or verbal inquiry from any federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality concerning the possible
violation of any law, rule or regulation or any matter disclosed in respect
of
its business.
3
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF GENESIS LAND
Genesis
Land and the Company jointly and severally represent and warrant to the
Shareholder that now and as of the Closing:
3.1 Due
Organization and Qualification; Subsidiaries, Due Authorization.
(a) Genesis
Land is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Nevada, with full corporate power and authority
to own, lease and operate its business and properties and to carry on its
business in the places and in the manner as presently conducted or proposed
to
be conducted. Genesis Land is in good standing as a foreign corporation in
each
jurisdiction in which the properties owned, leased or operated, or the business
conducted, by it requires such qualification except for any such failure, which
when taken together with all other failures, is not likely to have a material
adverse effect on the business of Genesis Land.
(b) Genesis
Land does not own, directly or indirectly, any capital stock, equity or interest
in any corporation, firm, partnership, joint venture or other entity. There
is
no contract, agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating or entitling Genesis Land to issue, sell,
redeem or repurchase any of its securities, other than this Agreement, and
there
is no outstanding security of any kind convertible into or exchangeable for
securities of Genesis Land.
(c) Genesis
Land has all requisite power and authority to execute and deliver this
Agreement, and to consummate the transactions contemplated hereby and thereby.
Genesis Land has taken all corporate action necessary for the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, and this Agreement constitutes the valid and binding obligation of
Genesis Land, enforceable against Genesis Land in accordance with its terms,
except as may be affected by bankruptcy, insolvency, moratoria or other similar
laws affecting the enforcement of creditors’ rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore may be
brought.
3.2 No
Conflicts or Defaults. The
execution and delivery of this Agreement by Genesis Land and the consummation
of
the transactions contemplated hereby do not and shall not (a) contravene the
Articles of Incorporation and Bylaws of Genesis Land, or (b) with or without
the
giving of notice or the passage of time, (i) violate, conflict with, or result
in a breach of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or license to which
Genesis Land is a party or by which Genesis Land or any of its assets are bound,
or any judgment, order or decree, or any law, rule or regulation to which its
assets are subject, (ii) result in the creation of, or give any party the right
to create, any lien upon any of the assets of Genesis Land, (iii) terminate
or
give any parry the right to terminate, amend, abandon or refuse to perform
any
material agreement, arrangement or commitment to which Genesis Land is a party
or by which Genesis Land or any of its assets are bound, or (iv) accelerate
or
modify, or give any party the right to accelerate or modify, the time within
which, or the terms under which Genesis Land is to perform any duties or
obligations or receive any rights or benefits under any material agreement,
arrangement or commitment to which it is a party.
4
3.3 Capitalization. The
authorized capital stock of Genesis Land consists of 1,000,000 shares of common
stock, $0.001 par value, of which, as of the date hereof, there were 10 shares
issued and outstanding. All of the outstanding shares of Genesis Land are duly
authorized, validly issued, fully paid and nonassessable, and have not been
or,
with respect to Genesis Land Shares, will not be transferred in violation of
any
rights of third parties. The Genesis Land Shares are not subject to any
preemptive or subscription right, any voting trust agreement or other contract,
agreement, arrangement, option, warrant, call, commitment or other right of
any
character obligating or entitling Genesis Land to issue, sell, redeem or
repurchase any of its securities, other than this Agreement, and there is no
outstanding security of any kind convertible into or exchangeable for common
shares of Genesis Land.
3.4 Litigation.
(a) There
is
no claim, dispute, action, suit, proceeding or investigation pending or
threatened, against or affecting Genesis Land or challenging the validity or
propriety of the transactions contemplated by this Agreement, at law or in
equity or admiralty or before any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, nor has
any such claim, dispute, action, suit, proceeding or investigation been pending
or threatened, during the 12-month period preceding the date
hereof;
(b) there
is
no outstanding judgment, order, writ, ruling, injunction, stipulation or decree
of any court, arbitrator or federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, against or materially
affecting Genesis Land; and
(c) Genesis
Land has not received any written or verbal inquiry from any federal, state,
local, foreign or other governmental authority, board, agency, commission or
instrumentality concerning the possible violation of any law, rule or regulation
or any matter disclosed in respect of its business.
ARTICLE
IV
REPRESENTATION
AND WARRANTIES OF THE SHAREHOLDER
The
Shareholder hereby represents and warrants to the Company that now and, solely
with respect to Sections 4.2 through 4.6 below, as of the Closing:
4.1 Title
to Shares. The
Shareholder is the legal and beneficial owner of the Company Shares to be
transferred to the Company, and upon consummation of the Exchange contemplated
herein, the Company will acquire from the Shareholder good and marketable title
to the Company Shares, free and clear of all liens.
4.2 Due
Authorization. The
Shareholder has all requisite power and authority to execute and deliver this
Agreement, and to consummate the transactions contemplated hereby. This
Agreement constitutes the valid and binding obligation of the Shareholder,
enforceable against it in accordance with its terms, except as may be affected
by bankruptcy, insolvency, moratoria or other similar laws affecting the
enforcement of creditors’ rights generally and subject to the qualification that
the availability of equitable remedies is subject to the discretion of the
court
before which any proceeding therefore may be brought.
5
4.3 Purchase
for Investment.
(a) The
Shareholder is acquiring the Genesis Land Shares for investment for its own
account and not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and it has no present intention of selling,
granting any participation in, or otherwise distributing the same. The
Shareholder further represents that it does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of
the
Genesis Land Shares.
(b) The
Shareholder understands that the Genesis Land Shares are not registered under
the Securities Exchange Act of 1933, as amended (the “Act”)
on the
ground that the sale and the issuance of securities hereunder is exempt from
registration under the Act pursuant to Section 4(2) thereof, and that the
Company’s reliance on such exemption is predicated on the Shareholder’s
representations set forth herein.
(c) The
Shareholder is an “accredited investor” as that term is defined in Rule 501(a)
of Regulation D under the Act.
4.4 Investment
Experience. The
Shareholder acknowledges that it can bear the economic risk of its investment,
and has such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of the investment in the Genesis
Land Shares.
4.5 Information. The
Shareholder has carefully reviewed such information as such it deemed necessary
to evaluate an investment in the Genesis Land Shares. To the full satisfaction
of the Shareholder, it has been furnished all materials that it has requested
relating to Genesis Land and the issuance of the Genesis Land Shares hereunder,
and the Shareholder has been afforded the opportunity to ask questions of
representatives of Genesis Land to obtain any information necessary to verify
the accuracy of any representations or information made or given to it.
Notwithstanding the foregoing, nothing herein shall derogate from or otherwise
modify the representations and warranties of the Company and Genesis Land set
forth in this Agreement, on which the Shareholder has relied in making an
exchange of the Company Shares for the Genesis Land Shares.
4.6 Restricted
Securities. The
Shareholder understands that the Genesis Land Shares may not be sold,
transferred, or otherwise disposed of without registration under the Act or
an
exemption there from, and that in the absence of an effective registration
statement covering the Genesis Land Shares or any available exemption from
registration under the Act, the Genesis Land Shares must be held
indefinitely.
ARTICLE
V
COVENANTS
5.1 Further
Assurances.
Each of the Parties shall use its reasonable commercial efforts to proceed
promptly with the transactions contemplated herein, to fulfill the conditions
precedent for such party’s benefit or to cause the same to be fulfilled and to
execute such further documents and other papers and perform such further acts
as
may be reasonably required or desirable to carry out the provisions of this
Agreement and to consummate the transactions contemplated herein.
6
ARTICLE
VI
DELIVERIES
Items
to
be delivered to the Shareholder prior to or at Closing by Genesis
Land:
(a) Articles
of Incorporation and amendments thereto, Bylaws and amendments thereto, and
certificate of good standing of Genesis Land in Nevada;
(b) all
applicable schedules hereto, if any;
(c) all
minutes and resolutions of Genesis Land board of director and shareholder
meetings in the possession of Genesis Land;
(d) all
financial statements and all tax returns of Genesis Land in the possession
of
Genesis Land;
(e)
resolution from Genesis Land’s Board of Directors, and if applicable,
shareholder resolutions approving this transaction and authorizing the transfer
of the Genesis Land Shares to the Shareholder;
(f) letters
of resignation from Genesis Land’s current officers and directors, other than
Xxxxx Xxx Xxxxxxxx, to be effective upon Closing;
(g) share
certificate(s)
and duly executed stock power(s) from the Company transferring the Genesis
Land
Shares to the Shareholder; and
(h) any
other
document reasonably requested by the Shareholder that it deems necessary for
the
consummation of this transaction.
Items
to
be delivered to the Company prior to or at Closing by the
Shareholder:
(a) all
applicable schedules hereto, if any;
(b) duly
executed stock power(s) apart from certificate from the Shareholder transferring
the Company Shares to the Company for cancellation;
(c) resolutions
from the partner(s) of the Shareholder approving the transactions contemplated
hereby; and
(d) any
other
document reasonably requested by the Company that it deems necessary for the
consummation of this transaction.
ARTICLE
VII
CONDITIONS
PRECEDENT
7.1 Conditions
Precedent to Closing. The
obligations of the Parties under this Agreement shall be and are subject to
fulfillment, prior to or at the Closing, of each of the following
conditions:
(a) that
each
of the representations and warranties of the Parties contained herein shall
be
true and correct at the time of the Closing as if such representations and
warranties were made at such time except for changes permitted or contemplated
by this Agreement; and
7
(b) that
the
Parties shall have performed or complied with all agreements, terms and
conditions required by this Agreement to be performed or complied with by them
prior to or at the time of the Closing.
7.2 Condition
to Obligations of Shareholder. The
obligations of Shareholder shall be subject to fulfillment prior to or at the
Closing, of the following condition:
(a) the
Company shall have received all of the regulatory, shareholder and other
consents, permits, approvals and authorizations, if any, necessary to consummate
the transactions contemplated by this Agreement.
7.3 Conditions
to Obligations of the Company. The
obligations of the Company shall be subject to fulfillment at or prior to or
at
the Closing, of each of the following conditions:
(a) Genesis
Land and the Shareholder shall have received all of the regulatory, shareholder,
partner and other consents, permits, approvals and authorizations, if any,
necessary to consummate the transactions contemplated by this Agreement;
(b) the
Shareholder shall have delivered to the Company the share certificate(s) and
duly executed stock power(s) from the Shareholder transferring the Company
Shares to the Company for cancellation; and
(c) the
Company shall have closed the transaction contemplated by the Bioauthorize
Share
Exchange Agreement.
ARTICLE
XIII
TERMINATION
8.1 Termination. This
Agreement may be terminated at any time before or, at Closing, by:
(a) the
mutual agreement of the Parties;
(b) any
party
if-
(i) any
provision of this Agreement applicable to a party shall be materially untrue
or
fail to be accomplished; or
(ii) any
legal
proceeding shall have been instituted or shall be imminently threatening to
delay, restrain or prevent the consummation of this Agreements.
8.2 Post-Termination
Obligations.
Upon
termination of this Agreement for any reason, in accordance with the terms
and
conditions set forth in this paragraph, each party shall bear all costs and
expenses as each party has incurred, and the Company Shares shall immediately
be
returned by the Company to the Shareholder.
ARTICLE
IX
MISCELLANEOUS
9.1 Survival
of Representations, Warranties and Agreements. Each
of the Parties hereto is executing and carrying out the provisions of this
Agreement in reliance upon the representations,
warranties and covenants and agreements contained in this Agreement or at the
Closing of the transactions herein provided for and not upon any investigation
which it might have made or any representations, warranty, agreement, promise
or
information, written or oral, made by the other party or any other person other
than as specifically set forth herein. Except as specifically set forth in
this
Agreement, representations and warranties and statements made by a party to
in
this Agreement or in any document or certificate delivered pursuant hereto
shall
not survive the Closing Date, and no claims made by virtue of such
representations, warranties, agreements and covenants shall be made or commenced
by any party hereto from and after the Closing Date.
8
9.2 Access
to Books and Records. During
the course of this transaction and through Closing, each party agrees to make
available for inspection all corporate books, records and assets, and otherwise
afford to each other and their respective representatives, reasonable access
to
all documentation and other information concerning the business, financial
and
legal conditions of each other for the purpose of conducting a due diligence
investigation thereof. Such due diligence investigation shall be for the purpose
of satisfying each party as to the business, financial and legal condition
of
each other party for the purpose of determining the desirability of consummating
the proposed transaction. The Parties further agree to keep confidential and
not
use for their own benefit, except in accordance with this Agreement, any
information or documentation obtained in connection with any such
investigation.
9.3 Further
Assurances. If,
at any time after the Closing, the Parties shall consider or be advised that
any
further deeds, assignments or assurances in law or that any other things are
necessary, desirable or proper to complete the Exchange in accordance with
the
terms of this Agreement or to vest, perfect or confirm, of record or otherwise,
the title to any property or rights of the Parties hereto, the Parties agree
that their proper officers, directors and partners shall execute and deliver
all
such proper deeds, assignments and assurances in law and do all things
necessary, desirable or proper to vest, perfect or confirm title to such
property or rights and otherwise to carry out the purpose of this Agreement,
and
that the proper officers, directors and partners of the Parties are fully
authorized to take any and all such action.
9.4 Notice. All
communications, notices, requests, consents or demands given or required under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
If
to the
Shareholder and Genesis Land:
Genesis
Land, Inc.
X.X.
Xxx
000
Xxxxxxxxx,
Xxxxx 00000
Attn:
Xxx
Xxxxxxxx
Fax:
(000) 000-0000
If
to the
Company:
00000
X.
00xx
Xx.
Xxxxxxxxxx,
XX 00000
Attn:
Yada Xxxxxxxxx
9
With
a
copy to:
Xxxxxx
Xxxxxxxx, PLC
0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxxx Xxxxxxxxxx, Esq.
Fax:
(000) 000-0000
9.5 Entire
Agreement. This
Agreement, any disclosure schedules and any instruments and agreements to be
executed pursuant to this Agreement, sets forth the entire understanding of
the
Parties hereto with respect to its subject matter, merges and supersedes all
prior and contemporaneous understandings with respect to its subject matter
and
may not be waived or modified, in whole or in part, except by a writing signed
by each of the Parties hereto. No waiver of any provision of this Agreement
in
any instance shall be deemed to be a waiver of the same or any other provision
in any other instance. Failure of any party to enforce any provision of this
Agreement shall not be construed as a waiver of its rights under such
provision.
9.6 Successors
and Assigns. This
Agreement shall be binding upon, enforceable against and inure to the benefit
of, the Parties hereto and their respective heirs, administrators, executors,
personal representatives, successors and assigns, and nothing herein is intended
to confer any right, remedy or benefit upon any other person. This Agreement
may
not be assigned by any party hereto except with the prior written consent of
the
other Parties, which consent shall not be unreasonably withheld.
9.7 Governing
Law. This
Agreement shall in all respects be governed by and construed in accordance
with
the laws of the State of Nevada are applicable to agreements made and fully
to
be performed in such state, without giving effect to conflicts of law
principles.
9.8 MUTUAL
WAIVER OF JURY TRIAL.
AS A
SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS
AGREEMENT (WITH EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH
PARTY HERETO EXPRESSLY AND IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN
ANY
LAWSUIT OR LEGAL PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, AND ANY LAWSUIT OR LEGAL
PROCEEDING RELATING TO OR ARISING IN ANY WAY TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN SHALL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
9.9 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
9.10 Construction. Headings
contained in this Agreement are for convenience only and shall not be used
in
the interpretation of this Agreement. References herein to Articles, Sections
and Exhibits are to the articles, sections and exhibits, respectively, of this
Agreement. Any disclosure schedules are hereby incorporated herein by reference
and made a part of this Agreement. As used herein, the singular includes the
plural, and the masculine, feminine and neuter gender each includes the others
where the context so indicates.
10
9.11 Severability. If
any provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, this Agreement shall be interpreted and
enforceable as if such provision were severed or limited, but only to the extent
necessary to render such provision and this Agreement enforceable.
9.12 Tax
Treatment.
The
Parties agree that the Exchange is intended to qualify under Section 351(a)
of
the Code, and the Parties hereto agree to report such transaction consistent
with such qualification. In such case, the Parties agree that they will take
all
reasonable measures to defend the position that such transaction qualifies
under
Section 351(a) of the Code in any audit, examination, litigation or other
proceeding relating to taxes.
9.13 Closing.
This
Agreement will take effect as a binding agreement among the Shareholder, Genesis
Land and the Company as of the date hereof on the terms and conditions set
forth
herein, and Shareholder and the Company each acknowledge and agree that this
Agreement creates a binding commitment to consummate the Exchange, and that
the
Company has entered into the Bioauthorize Share Exchange Agreement in reliance
of such binding commitment. Notwithstanding the foregoing, the provisions of
this Agreement shall terminate and be of no further force and effect in the
event that the transactions contemplated in the Bioauthorize Share Exchange
Agreement are not consummated, provided that, upon such termination, the Company
Shares shall immediately be returned to the Shareholder.
9.14 Separate
Counsel.
The
Parties stipulate and agree that, in entering into this Agreement, they have
relied upon the advice and representation of counsel and other advisors selected
by them. The Parties particularly stipulate and agree that Xxxxxx Xxxxxxxx,
PLC
has exclusively represented the Company and Genesis Land and not the
Shareholder, who had the right to obtain his own counsel and either did so
or
waived his rights accordingly.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, each of the Parties hereto has executed this Agreement as
of
the date first set forth above.
|
|
|
|
By:
|
/s/ Xxxxx Xxxxxx |
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
President & CEO
|
|
|
|
|
|
GENESIS
LAND, INC.
|
|
|
|
|
|
By:
|
/s/ Xxxxx Xxxxxx |
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
President
|
|
|
|
|
|
XXXXXXXX
THIRD FAMILY PARTNERSHIP
|
|
|
|
|
|
By:
|
/s/ Xxxxx Xxx Xxxxxxxx |
|
Name:
Xxxxx Xxx Xxxxxxxx
|
|
|
Title:
Partner
|
|
12
