SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
August 12, 1999 (July 28, 1999)
Date of Report (Date of earliest event reported)
thehealthchannel.com, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
000- 33-0728140
(Commission File Number IRS Employer Identification No.)
5000 Birch Street, Suite 4000, Irvine, California 92660
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (714) 962-0259
Item 1. Changes in Control of Registrant
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On July 28, 1999, Innovative Tracking Solutions Corporation, a Delaware
corporation (the "Company") acquired approximately 90% of the assets of BioLogix
International, Ltd. in exchange for the controlling interests of the Company.
Restricted Common Shares representing the majority controlling interests held by
the directors of Innovative Tracking Solutions Corporation, a Delaware
corporation, have been transferred.
The former officers and directors of Registrant resigned and the following
officers and directors were appointed to fill the vacant terms until the next
annual election of officers and directors:
Donald Shea President, Director
Thomas Lonergan C.F.O., Secretary, Director
Ernie Bodai Director
Jeffrey Berg Director
Joseph Song Director
There are no arrangements or understandings among members of both the
former and new control groups and their associates with respect to the election
of directors or other matters.
Item 2. Acquisition or Disposition of Assets
- --------------------------------------------
Pursuant to the Bylaws and general Delaware corporate law, the Company
acquired approximately 90% of the assets of BioLogix International, Ltd.
("BGIX"), consisting primarily of thehealthchannel.com web site and related
technology.
Restricted Common Shares representing the majority controlling interests of
Innovative Tracking Solutions Corporation, a Delaware corporation, held by all
of the Company's directors, have been transferred to officers and directors of
BioLogix International, Ltd. and all assets and liabilities of the Company were
previously removed and transferred to a newly formed private corporation held by
some or all of the Company's present Shareholders.
Item 5. Other Events
- ----------------------
In connection with this Change in Control, Registrant's name was changed
to thehealthchannel.com, Inc. and its headquarters were moved to 5000 Birch
Street, Suite 4000, Irvine, California, 92660. Please refer to the Acquisition
Agreement attached hereto as Exhibit 1 for complete details regarding the
acquisition.
Item 7: Financial Statements and Exhibits
- -----------------------------------------------
The acquisition closed on July 28, 1999. It is currently impracticable
for the Registrant to file the required audited financial statements for this
acquisition. However, the Registrant shall file such financial statements under
cover of Form 8-K as soon as practicable, but no later than sixty days from the
date of filing this report.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: August 12, 1999 thehealthchannel.com, Inc.
By:/s/ Donald Shea
----------------------
Donald Shea
Its: President
EXHIBIT 1
=========
AQUISITION, 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 Dianna Cleveland, an individual, Lee Namisniak, an individual,
and Lou Weiss, 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, "thehealthchannel.com" 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 PURCHSER
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, Horwitz & 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 "thehealthchannel.com, 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.
<TABLE>
<CAPTION>
The post-split shares are intended to be allocated as follows:
<S> <C> <C>
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); and
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
</TABLE>
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 PURCHASERs 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 Don Shea as President and Director, and Tom Lonergan 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
"thehealthchannel.com" and the terms of this Agreement. The parties to this
Agreement understand that after notification to the COMPANY's shareholders by
COMPANY of the terms of this Agreement, that the COMPANY is obligated to allow
its shareholders to change their elections for exchange of IVTX shares into ITSC
PRIVATE SHARES, and that said elections will undoubtedly change. The parties
understand that said changes in elections could result in as much as 100% of
IVTX shares held by the COMPANY'S public shareholders remaining un-exchanged
for ITSC PRIVATE SHARES and that all un-exchanged IVTX shares that remain to
be held by the COMPANY'S shareholders, including 50,000 shares retained by
COMPANY's current management, shall be split, and upon surrender, shall be
exchangeable into THCL shares on a basis of two shares of THCL for each IVTX
post-split share held.
i) The COMPANY shall use its best efforts to secure from each IVTX shareholder
of record as of July 29, 1999 a signed affidavit that releases all claim and
title to 26.22 post-split shares pursuant to the SHARE EXCHANGE PLAN thereby
allowing said post-split shares to be exchanged on a 1 to 1 basis with BGIX
shareholders while resulting in a 2 to 1 forward exchange for COMPANY's
shareholders.
j) The COMPANY shall use its best efforts to coordinate the sale of all shares
held in THCL by the COMPANY's existing shareholders, including shares retained
by COMPANY's management, in a manner that minimizes the number of shares being
sold in the market to approximately 10% per month of the total shares held by
COMPANY's public shareholders over a period of ten (10) consecutive months
following the date of this Agreement. The parties understand that any shares
held by COMPANY's existing management or affiliated parties shall not be
tradable for a minimum of ninety (90) days following the execution of this
Agreement but that the monthly limitation shall still expire ten (10) months
from the date of this Agreement. The parties to this Agreement understand that
no assurance can be given that the monthly limitation will be achieved, and if
not achieved, shall not constitute a breach of this Agreement.
6) Subsequent Actions of PURCHASER.
a) The PURCHASER shall deliver the Purchase Price as required in Section 1(b)
of this Agreement.
b) The PURCHASER shall deliver, or cause to be delivered, to SHAREHOLDERS and
COMPANY such instruments, documents and certificates as are required to be
delivered by the PURCHASER or its representatives pursuant to the provisions of
this Agreement.
c) The PURCHASER shall transfer its WEBSITE to the COMPANY.
d) The PURCHASER shall handle the redistribution of all THCL shares as follows:
each free-trading BGIX share submitted for exchange by a BGIX shareholder shall
be exchanged for one TRADABLE THCL SHARE and each restricted BGIX share
submitted for exchange by a BGIX shareholder shall be exchanged for one
restricted THCL share. Each free trading IVTX share, held as of record date of
July 29, 1999, submitted for exchange byan 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
"thehealthchannel.com" website each month for at least six months with banner
ads at least five days per month. The PURCHASER also agrees to include video
streaming of the feature segment of the Private Practice" Vibration Reminder
Disk which will air on an upcoming edition of American Medical Review (AMR) on
National Public Television upon the approval of AMR.
7) Representations and Warranties of SHAREHOLDERS
a) Validity of SHAREHOLDERS' Shares. The Shares to be delivered to PURCHASER
hereunder from the SHAREHOLDERS have been duly authorized by the appropriate
corporate action of COMPANY.
b) Clean Title of the Shares. The SHAREHOLDERS shall transfer title, in and to
the Shares to PURCHASER free and clear of all liens, security interests,
pledges, encumbrances, charges, restrictions, demands and claims, of any kind
and nature whatsoever, whether direct or indirect or contingent.
c) Delivery of the Shares. SHAREHOLDERS shall deposit with the Custodian,
certificates in fully transferable form with Medallion Signature Guaranteed
signatures representing the Shares subject to no liens, security interests,
pledges, encumbrances, charges, restrictions, demands or claims in any other
party whatsoever, except as set forth in the legend on the certificate, which
legend shall provide as follows:
THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
d) Restricted Shares. PURCHASER acknowledges that the Shares are "restricted
securities" (as such term is defined in Rule 144 ("Rule 144") promulgated under
the Securities Act of 1933, as amended (the "Act"), that the Shares may include
the foregoing restrictive legend, and, except as otherwise set forth in this
Agreement, that the Shares cannot be sold except in accordance with Rule 144
promulgated by the Securities and Exchange Commission, or unless registered
with the SEC and qualified by appropriate state securities regulators, or
unless PURCHASER otherwise complies with an exemption from such registration
and qualification (including, without limitation, compliance with Rule 144).
8) Representations and Warranties of the COMPANY.
a) Organization. COMPANY is a corporation duly organized, validly existing,
and in good standing under the laws of Delaware, has all necessary corporate
powers to own properties and to carry on its business as now owned and operated
by it, is duly qualified to do business and is in good standing in each of the
jurisdictions where its business requires qualification. COMPANY is currently
in good standing with its Transfer Agent, Atlas Stock Transfer.
b) Authority. The Board of Directors of COMPANY have authorized the execution
of this Agreement and the transactions contemplated herein and has full power
and authority to execute, deliver, and perform this Agreement based on a
unanimous vote of shareholders obtained at a meeting duly convened on
April 12, 1999.
c) Capital. The authorized capital stock of COMPANY consists of 10,000,000
shares of $.001 par value common stock of which 3,785,243 shares are currently
issued and outstanding. All of the issued and outstanding shares are validly
issued, fully paid, and non-assessable. All currently outstanding shares of
COMPANY'S common stock have been issued in compliance with applicable federal
and state securities laws.
d) Subsidiaries. COMPANY has no subsidiaries and does not own any interest in
any other enterprise, whether or not enterprise is a corporation.
e) Directors and Officers. The COMPANY's Form 10-SB, as filed with the SEC on
December 14, 1998, including all amendments thereto, contains the names and
titles of all officers and directors of COMPANY as of the date of this
Agreement.
f) Financial Statements. The COMPANY's Form 10-SBA filed with the SEC on April
5, 1999 includes the COMPANY's audited financial statements as of December 31,
1998. The financial statements have been prepared in accordance with generally
accepted accounting principles and practices consistently followed throughout
the period indicated and fairly present the financial position of COMPANY as of
the dates of the balance sheets included in the financial statements and the
results of operations for the periods indicated.
g) Absence of Changes. Since the date of COMPANY's most recent financial
statements, the COMPANY's assets and liabilities have been transferred to
another entity. All such assets formerly owned by the COMPANY are hereby
excluded from this transaction.
h) Absence of Undisclosed Liabilities. As of the date of COMPANY's most recent
balance sheet, included in the Form 10-SB, it did not have any material debt,
liability or obligation of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, that is not reflected in such
balance sheet.
i) Tax Returns. With the times and in the manner prescribed by law, COMPANY
has filed all federal, state or local tax returns required by law, has paid all
taxes, assessments and penalties due and payable and has made adequate
provisions on its most recent balance sheet for any unpaid taxes. There
are no present disputes as to taxes of any nature payable by COMPANY.
j) Investigation of Financial Condition. Without in any manner reducing or
otherwise mitigating the representations contained herein, representatives of
PURCHASER shall have the opportunity to meet with COMPANY's accountants and
attorneys to discuss the financial condition of COMPANY. COMPANY shall make
available to representatives of PURCHASER all books and records of COMPANY.
k) Compliance with Laws. COMPANY has complied with, and is not in violation of,
applicable federal, state or local statutes, laws and regulations affecting its
properties, securities or the operation of its business.
l) Litigation. COMPANY is not a party to, nor to the best of its knowledge is
there pending or threatened, any suit, action, arbitration or legal,
administrative or other proceedings, or governmental investigation concerning
its business, assets or financial condition.
m) Ability to Carry Out Obligations. The execution and delivery of this
Agreement by COMPANY and the performance of its obligations hereunder will not
cause, constitute, conflict with or result in (i) any breach of the provisions
of any license, indenture, mortgage, charter, instrument,
certificate of incorporation, bylaw or other agreement or instrument to which
it is a party or by which it may be bound, nor will any consents or
authorizations of any party other than those hereto be required, (ii) an event
that would permit any party to any agreement or instrument to terminate it or
to accelerate the maturity of any indebtedness or other obligation, or (iii) an
event that would result in a creation or imposition of any lien, charge, or
encumbrance on any asset.
n) Full Disclosure. None of the representations and warrantees made by COMPANY
herein, or in any exhibit, certificate, or memorandum furnished or to be
furnished by it or on its behalf, contains or will contain any untrue statement
of a material fact, or omits any material fact, the omission of which would be
misleading.
o) Assets. COMPANY has had good and marketable title to all of its property
free and clear of any and all liens, claims and encumbrances.
p) Indemnification. COMPANY agrees to indemnify, defend and hold harmless
PURCHASER against and in respect to any and all claims, demands, losses, costs,
expenses, obligations, liabilities or damages, including interest, penalties,
and reasonable attorneys fees, incurred or suffered, which arise out of, result
from or relate to any breach of, or failure by COMPANY to perform any of its
representations, warranties, or covenants in this Agreement or in any exhibit
or other instrument furnished, or to be furnished, under this Agreement and
from any and all claims, demands, losses, costs, expenses, obligations,
liabilities, or damages which arise form activities prior to the date of the
transfer of assets from PURCHASER to COMPANY as set forth in Section 6(c).
q) Validity of COMPANY Shares. The Shares of COMPANY $.001 par value common
stock to be issued pursuant to this Agreement will be duly authorized, validly
issued, fully paid and nonassessable under Delaware law.
9. Representations of Warranties of PURCHASER
a) Organization. PURCHASER is a corporation duly organized, validly existing,
and in good standing under the laws of Delaware, has all necessary corporate
powers to own properties and to carry on its business as now owned and operated
by it, is duly qualified to do business, and is in good standing in each of the
jurisdictions where its business requires qualification.
b) Capital. The authorized capital stock of PURCHASER consists of one hundred
million (100,000,000) shares of common stock of which approximately 20,000,000
free trading shares and 50,000,000 restricted shares are currently issued and
outstanding. All of the issued and outstanding shares are validly issued,
fully paid and nonassessable.
c) Subsidiaries. PURCHASER has no subsidiaries.
d) Directors and Officers. Don Shea, President and Tom Lonergan, 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 ncorporation, 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 Travis Morgan 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, Horwitz & 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.
Don Shea, President
7 Benjamin Place
Locust Valley, NY 11560
Phone: 516-759-6010
Fax: 516-759-6010
BioLogix International, Ltd.
Tom Lonergan, Director
9581Cape Split Circle
Huntington Beach, CA 92646
Phone: 714-962-0259
Fax: 714-593-3009
WTH A COPY TO:
Horwitz & Beam
Two Venture Plaza, Suite 350
Irvine, CA 92618
Attn: Lynne Bolduc, Esq.
Fax: 949/453-9416
TO CUSTODIAN:
Horwitz & Beam
Two Venture Plaza, Suite 350
Irvine, CA 92618
Attn: Larry Horwitz
Fax: 949/453-9416
TO COMPANY:
Innovative Tracking Solutions Corporation
23232 Peralta Drive, Suite 115
Laguna Hills, CA 92653
Attn: Dianna Cleveland, President
Fax: 949/595-4741
WITH A COPY TO:
Ken Eade
143 South. B Street
Oxnard, CA 93030
Fax: 805-483-7634
TO SHAREHOLDERS:
Dianna Cleveland
23232 Peralta Drive, Suite 115
Laguna Hills, CA 92653
Fax: 949/595-4741
Lee Namisniak
23232 Peralta Drive, Suite 115
Laguna Hills, CA 92653
Fax: 949/595-4741
Lou Weiss
23232 Peralta Drive, Suite 115
Laguna Hills, CA 92653
Fax: 949/595-4741
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 Dianna Cleveland S/s Don Shea
- ----------------------- ---------------------
By: Dianna Cleveland By: Don Shea
Its: President Its: President
S/s Tom Lonergan
- ----------------------- ---------------------
By: Tom Lonergan
Its: Vice President,
C.O.O., Secretary
SHAREHOLDERS CUSTODIAN
S/s Dianna Cleveland------ HORWITZ & BEAM
- ------------------------
Dianna Cleveland S/s Larry Horwitz
------------------------
Larry Horwitz
S/s Lee Namisniak
- ----------------------
Lee Namisniak
S/s Lou Weiss
- ----------------------
Lou Weiss
