Amended
and Restated Share Exchange Agreement
by
and between
Kinder
Holding Corp.
and
Intiva
BioPharma Inc.
Dated
as of October 13, 2017
This
AMENDED AND RESTATED SHARE EXCHANGE AGREEMENT, dated as of October 13, 2017 (this “Agreement”) is between Kinder Holding
Corp., a Delaware corporation with offices located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxx, XX 00000, on the one hand
(the “Company”) and Intiva BioPharma Inc., a Colorado corporation with offices located at 0000 Xxxxxx Xxxxx X. Xxxxx,
Xxxxx 000, Xxxxxx XX 00000, on the other hand (“BioPharma”). The Company and BioPharma are sometimes referred to individually,
as a “Party” and collectively, as the “Parties.”
Recital:
WHEREAS,
the Parties hereto agree that it is their intention that BioPharma become a wholly-owned subsidiary of the Company through the
exchange by the shareholders of BioPharma (the “BioPharma Shareholders”) of all outstanding shares of common stock
of BioPharma (the “BioPharma Shares”) in consideration for the issuance by the Company of a total of 255,856,272 shares
of the Company’s common stock, $0.0001 (the “Shares”), which amount is prior to the implementation following
the Closing, as defined below, of a 1-for-6 reverse stock split to be implemented after the closing (the “Reverse Stock
Split”) as set forth in Section 2.2 below; and
WHEREAS,
the Parties acknowledge and agree that on June 26, 2017, in contemplation of the execution and delivery of a share exchange agreement
between the Company and BioPharma, the Company filed a Form 8-K with United States Securities and Exchange Commission (the “SEC”)
reporting that the control persons of the Company had effected a change in control transaction pursuant to which a principal shareholder
of BioPharma acquired a total of 20,000,000 Shares from the Company’s two principal shareholders; and
WHEREAS,
the Parties have agreed that in connection with the closing, the 20,000,000 Shares issued in the change in control transaction
shall be cancelled; and
WHEREAS,
the Parties acknowledge and agree that at the date of this Agreement, the Company does not have a sufficient number of authorized
but unissued Shares to issue all of the 255,856,272 pre-Reverse Stock Split Shares required under this Agreement and, as a result,
the Parties have agreed to conduct the closing of this Agreement (the “Closing”), pursuant to the terms set forth
in Sections 1.1 and 2.1 below.
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
ARTICLE
I
THE
SHARES AND THE EXCHANGE
Section
1.1 The Share Exchange and Issuance. The Parties agree that upon the Closing, which Closing shall occur upon the execution and
delivery of this Agreement, the Company shall issue to the BioPharma Shareholders a total of 94,889,808 Shares, representing the
remaining authorized but unissued Shares and the BioPharma Shareholders shall transfer their BioPharma Shares to the Company.
The Company shall then be obligated, within four (4) business days of the Closing, to file with the United States Securities and
Exchange Commission (the “SEC”) a Form 8-K containing “full Form 10 disclosure” as set forth below. The
Parties further agree that within fifteen (15) business days following the Closing, the Company shall file with the SEC an Information
Statement on Schedule 14C, as set forth in Section 2.2 below (the “Information Statement”), for among other purposes,
increasing the number of authorized Shares in order for the Company to fulfill its obligation to issue to the BioPharma Shareholders
the requisite number of Shares provided in this Agreement, on a post-Reverse Stock Split basis.
Section
1.2 The BioPharma Shares and Warrants. The Parties acknowledge and agree that at the date of this Agreement, BioPharma has issued
and outstanding BioPharma Shares and warrants exercisable to purchase BioPharma Shares.
Section
1.3 BioPharma undertakes to deliver to the Company a schedule of the issued and outstanding BioPharma Shares and BioPharma Warrants
not less than two (2) business days prior to the Closing.
Section
1.4 Upon the Closing, the Company undertakes to issue and grant to the holders of the BioPharma Warrants common stock purchase
warrants exercisable to purchase Shares of the Company’s common stock based on the same ratio used to determine the number
of Shares to be issued to BioPharma Shareholders, subject only to the implementation of the Corporate Actions defined and set
forth in Section 2.2 below.
Section
1.5 Reporting of Share Exchange. For federal, state, and local income tax return reporting purposes, all parties agree to treat
this Agreement and each action contemplated by this Agreement as a nontaxable exchange under Section 368 of the Internal Revenue
Code. For federal, state, and local income tax return reporting purposes, all parties agree to treat this Agreement and each action
contemplated by this Agreement as a nontaxable exchange under Section 368 of the Internal Revenue Code.
Section
1.6 Board of Directors of the Company. Simultaneously at Closing, Xxx Xxxxxx, one of the two existing directors of the Company,
shall resign as an officer and director of the Company and the control persons of BioPharma and the remaining director shall make
such appointments to serves as the Company’s new executive officers and directors as they shall determine.
ARTICLE
II
THE
CLOSING
Section
2.1 The Closing. The Parties shall take the actions set forth in Section 1.1 above.
Section
2.2 Conditions Subsequent to Closing.
A.
As soon as practicable following the Closing, the Company undertakes to implement certain corporate actions by the filing with
the SEC of an Information Statement based upon the Joint Written Consent of the Company’s Board of Directors and Majority
Consenting Stockholders (the Joint Consent”) and file with the State of Delaware, a Certificate of Amendment to the Company’s
Certificate of Incorporation to:
(i)
implement a one for six (1:6) reverse stock split (the “Reverse Split”) of the Company’s 100,000,000 issued
and outstanding Shares;
(ii)
increase the number of authorized Shares of Common Stock from 100,000,000 Shares to 200,000,000 Shares (the “Authorized
Share Increase”); and
(iii)
change the name of the Company to a name determined by the Company’s newly constituted Board of Directors; and
(iv)
take such other corporate actions as the Board of Directors may determine.
The
foregoing are referred to collectively, as the “Corporate Actions.” The Company further undertakes to file as soon
as reasonably practicable after the SEC has cleared comments, if any, with respect to the Information Statement, to make application
to FINRA to approve the Corporate Actions.
B.
The Company also agrees that as soon as reasonably practicable after the SEC clears comments, if any, on the Form 8-K containing
full Form 10 disclosure, the Company will file a registration statement on Form S-1 for the purpose of registering for resale
under the Securities Act of 1933, as amended (the “Act”) a number of Post-Reverse Stock Split Shares, including all
of the 400,000 Post-Reverse Split Shares issued to Xxx Xxxxxx and Securities Compliance Corp., the former control persons of the
Company plus a number of additional Post Reverse Split Shares issued to the BioPharma Shareholders in an amount to be determined
and subject to certain conditions as the Company’s Board of Directors shall reasonably determine.
Section
2.3 The foregoing are referred to collectively, as the “Corporate Actions,” which shall be implemented by filing the
Information Statement on or about the date of the filing of the Registration Statement with the SEC.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants as of the date hereof that:
Section
3.1 Existence and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws
of the State of Delaware. The Company has the requisite corporate power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased
by it makes such licensing or qualification necessary.
Section
3.2 Capitalization. The authorized capital stock of Company consists of 110,000,000 shares of capital stock consisting of: (i)
100,000,000 Shares of Common Stock, par value $0.0001, having one vote per share, of which 22,710,192 Shares are issued and outstanding
as of the date of this Agreement; and (ii) 10,000,000 shares of preferred stock which may be issued in one or more series (“Preferred
Stock”), no shares of which are issued or outstanding as of the date of this Agreement and the Board of Directors shall
be authorized to fix the powers, preferences, rights, qualifications, limitations or restrictions of the Preferred Stock and any
series thereof in accordance with the Company’s Bylaws.
Section
3.3 Validly Issued Shares. All of the issued and outstanding shares of Company capital stock have been duly authorized and validly
issued and are fully-paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership
thereof.
Section
3.4 Authorization. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action
on the part of the Company, and this Agreement is a valid and binding obligation of the Company, enforceable against it in accordance
with their terms.
Section
3.5 Board Approval. The transactions contemplated by this Agreement, including without limitation the issuance of the Shares in
compliance with the terms of this Agreement, have been adopted, approved and declared advisable by the Board of Directors of the
Company in accordance with the provisions of the laws of the State of Delaware and the Bylaws of the Company.
Section
3.6 Non-Contravention. The execution, delivery and performance of this Agreement, and the consummation by the Company of the transactions
contemplated hereby, will not conflict with, violate or result in a breach of any provision of, or constitute a default (or an
event which, with notice or lapse of time or both would constitute a default) under, or result in the termination of or accelerate
the performance required by, or result in a right of termination or acceleration under, any provision of the Certificate of Incorporation
or Bylaws of the Company.
Section
3.7 Exempt Transaction. The Parties understand that (i) as of the date of this Agreement, the Shares to be issued to the BioPharma
Shareholders have not been registered under the Act or any state securities laws, based upon the exemption from registration under
Rule 506 and Section 4(a)(2) promulgated by the SEC under the Act.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF BIOPHARMA
BioPharma
represents and warrants to the Company as of the date hereof that:
Section
4.1 Existence and Power. BioPharma is duly organized and validly existing under the laws of the State of Colorado and has all
requisite power and authority to enter into and perform its obligations under this Agreement.
Section
4.2 Capitalization. The authorized capital stock of BioPharma consists of 50,000,000 Shares of Common Stock, no par value, having
one vote per share, of which of which 5,330,339 BioPharma Shares are issued and outstanding as of the date of this Agreement,
including 266,666 vested BioPharma Shares issued/granted to BioPharma officers/directors, and 533,334 BioPharma Shares for which
forfeiture restrictions lapse over a two-year period in equal quarterly tranches.
Section
4.3 Authorization. The execution, delivery and performance of this Agreement has been duly authorized by all necessary action
on the part of BioPharma, and this Agreement is a valid and binding obligation of BioPharma, enforceable against it in accordance
with its terms.
Section
4.4 Valid Issuance. The BioPharma Shares have been duly authorized by all necessary corporate action. As of the date of this Agreement
and the Closing, the BioPharma Shares are and will be validly issued, fully-paid and nonassessable, will not subject the holders
thereof to personal liability and will not be issued in violation of preemptive rights.
Section
4.5 Non-Contravention. The execution, delivery and performance of this Agreement will not conflict with, violate or result in
a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both would constitute
a default) under, or result in the termination of or accelerate the performance required by, or result in a right of termination
or acceleration under, any provision of the organizational or governing documents of BioPharma.
ARTICLE
V
CONDITIONS
TO SHARE EXCHANGE CLOSING
Section
5.1 Conditions to Each Party’s Obligation to Effect the Closing. The respective obligations of the Parties hereunder to
affect the share exchange transactions contemplated by this Agreement (the “Share Exchange”) shall be subject to the
following conditions:
(a)
No Injunctions or Restraints; Illegality. No order, injunction or decree issued by any court or agency of competent jurisdiction
or other law preventing or making illegal the consummation of the Exchange shall be in effect; and
(b)
BioPharma shall have delivered to the Company audited financial statements of BioPharma, consolidated proforma financial statements
and such information related to BioPharma so that the Company will have the requisite information necessary to file with the SEC
the full Form 10 disclosure on Form 8-K within four (4) business days following the Closing.
ARTICLE
VI
MISCELLANEOUS
Section
6.1 Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been given if delivered personally or by facsimile or seven days after having been sent by certified mail,
return receipt requested, postage prepaid, to the Parties to this Agreement at the following address or to such other address
either Party to this Agreement shall specify by notice to the other Party:
(a)
if to Company, then to:
Kinder
Holding Corp.
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxxx, XX 00000
Attention:
Xxx Xxxxxx, CEO
email:
xxxxxxx@xxxxxxxxxxxxxxx.xx
with
a copy to:
Office
of Xxxxxxx Xxxxx
00
Xxxx Xxxxxx – 00xx Xxxxx
Xxx
Xxxx, XX 00000
Email:
xxxxxx@xxxxxxxxxxxxxxx.xx
(b)
if to BioPharma, then to:
Intiva
BioPharma Inc.
0000
Xxxxxx Xxxxx X. Xxxxx, Xxxxx 000
Xxxxxx
XX 00000
Attention:
Xxxxxxx Xxxxxxxxx, CEO
email:
xxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
Section
6.2 Further Assurances. Each Party hereto shall do and perform or cause to be done and performed all further acts and shall execute
and deliver all other agreements, certificates, instruments and documents as any other Party hereto reasonably may request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
Section
6.3 Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is duly executed and delivered by the Company and BioPharma. No failure or delay by any Party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
Section
6.4 Fees and Expenses. Each Party hereto shall pay all of its own fees and expenses (including attorneys’ fees) incurred
in connection with this Agreement and the transactions contemplated hereby.
Section
6.5 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns, provided that neither Party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the consent of the other Party hereto.
Section
6.6 Governing Law. This Agreement shall be governed and construed in accordance with the internal laws of the State of New York
applicable to contracts made and wholly performed within such state, without regard to any applicable conflicts of law principles.
The Parties hereto agree that any suit, action or proceeding brought by either Party to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any
federal or state court located in the State of New York. Each of the Parties hereto submits to the jurisdiction of any such court
in any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of, or in connection
with, this Agreement or the transactions contemplated hereby and hereby irrevocably waives the benefit of jurisdiction derived
from present or future domicile or otherwise in such action or proceeding. Each Party hereto irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
Notwithstanding the foregoing, the Parties, upon mutual written agreement, may agree to the State of Colorado or California in
lieu of the State of New York.
Section
6.7 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
6.8 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of
this Agreement and supersedes all prior agreements and understandings, both oral and written, between the Parties and/or their
affiliates with respect to the subject matter of this Agreement.
Section
6.9 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction
hereof.
Section
6.10 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision
shall be deemed to be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision
were so excluded and shall be enforced in accordance with its terms to the maximum extent permitted by law.
Section
6.11 Counterparts; Third Party Beneficiaries. This Agreement may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures were upon the same instrument. No provision of this Agreement shall
confer upon any person other than the Parties hereto any rights or remedies hereunder.
Section
6.12 Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms. It is accordingly agreed that the Parties shall be entitled
to seek specific performance of the terms hereof, this being in addition to any other remedies to which they are entitled at law
or equity.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.
Kinder
Holding Corp.
![](https://www.sec.gov/Archives/edgar/data/1625288/000149315217011646/ex10-2_001.jpg)
Xxx
Xxxxxx, CEO
Intiva
Biopharma Inc.
Xxxxxxx
Xxxxxxxxx, CEO