Exhibit 10.1
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 unxchanged 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 olders over a period of ten (10) consecutive months following the date
of this Agreement. The arties 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 auditors, 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
