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SHARE EXCHANGE AGREEMENT
THIS
SHARE EXCHANGE AGREEMENT, dated as of the 18
th day
of February, 2008 (the “
Agreement ”),
is made by and among Genesis Holdings, Inc., a Nevada corporation
(the “
Company ”);
Genesis Land, Inc., a Nevada corporation (“
Genesis Land ”);
and the Bankston Third Family Limited Partnership, a Texas limited
partnership (the “
Shareholder ”).
The Company, Genesis Land and the Shareholder are collectively
referred to herein as the “
Parties ”.
WITNESSETH:
WHEREAS,
the Shareholder owns 19,000,000 shares of common stock of the
Company.
WHEREAS,
the Company desires to acquire from Shareholder and cancel,
and Shareholder desires to return to the Company, 16,780,226
of Shareholder’s shares of common stock of the Company
(the “
Company Shares ”)
in exchange for the later transfer by the Company of all of the
issued and outstanding shares of the capital stock of Genesis Land
(the “
Genesis Land Shares ”)
to the Shareholder on the terms and conditions set forth herein
(the “
Exchange ”).
WHEREAS,
after giving effect to the cancellation of the Company Shares,
there would be approximately 5,000,000 shares of Company
Common Stock issued and outstanding.
WHEREAS,
the Parties intend, by executing this Agreement, to implement
a tax-deferred exchange of property governed by Section 351 of
the United States Internal Revenue Code of 1986, as amended
(the “
Code ”).
WHEREAS,
the Company has entered into a Share Exchange Agreement with
Bioauthorize, Inc., a Colorado corporation ("
Bioauthorize ")
and certain Bioauthorize shareholders of even date herewith (the
"
Bioauthorize Share Exchange Agreement "),
and it is a condition to the closing of the Bioauthorize Share
Exchange Agreement that the Parties enter into this
Agreement.
NOW,
THEREFORE, in consideration, of the promises and of the mutual
representations, warranties and agreements set forth herein,
the Parties hereto agree as follows:
ARTICLE I
THE EXCHANGE
1.1
The Exchange . Subject
to the terms and conditions of this Agreement:
(a)
concurrent
with execution of this Agreement, the
Shareholder agrees to deliver to the Company a duly endorsed
stock power apart from certificate representing the Company
Shares for cancellation by the Company, and
(b)
on
the Closing Date (as hereinafter defined), the Company agrees
to deliver to the Shareholder duly endorsed certificates
representing the Genesis Land Shares.
1.2
Time and Place of Closing . The
closing of the transactions contemplated hereby (the “
Closing ”)
shall take place at the offices of Keller Rohrback PLC on or before
March 17, 2008 but in no event prior to the closing of the
Bioauthorize Share Exchange Agreement (the “
Closing Date ”),
or at such place and time as mutually agreed upon by the Parties
hereto. If the Closing does not occur by the Closing Date, the
Shareholder at its sole option shall have the right to demand the
return of the Company Shares, which the Company agrees to complete
as soon as reasonably practicable following receipt of such
demand.
1.3
Tax Consequences . It
is intended by the Parties hereto that for United States income tax
purposes, the return of the Company Shares by the Shareholder to
the Company in exchange for Genesis Land Shares constitutes a
tax-deferred exchange within the meaning of Section 351 of the
Code.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
The
Company represents and warrants to the Shareholder that now
and as of the Closing:
2.1
Due Organization and Qualification; Due Authorization
.
(a)
The
Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Nevada,
with full corporate power and authority to own, lease and
operate its respective business and properties and to carry on
its business in the places and in the manner as presently
conducted or proposed to be conducted. The Company is in good
standing as a foreign corporation in each jurisdiction in
which the properties owned, leased or operated, or the
business conducted, by it requires such qualification except
for any such failure, which when taken together with all other
failures, is not likely to have a material adverse effect on
the business of the Company.
(b)
The
Company does not own, directly or indirectly, any capital
stock, equity or interest in any corporation, firm,
partnership, joint venture or other entity other than Genesis
Land and Bioauthorize, which are or will be the
Company’s wholly-owned subsidiaries prior to the
Closing.
(c)
The
Company has all requisite corporate power and authority to
execute and deliver this Agreement, and to consummate the
transactions contemplated hereby and thereby. The Company has
taken all corporate action necessary for the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby, and this Agreement
constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as may be affected by bankruptcy, insolvency, moratoria
or other similar laws affecting the enforcement of
creditors’ rights generally and subject to the
qualification that the availability of equitable remedies is
subject to the discretion of the court before which any
proceeding therefore may be brought.
2.2
No Conflicts or Defaults . The
execution and delivery of this Agreement by the Company and the
consummation of the transactions contemplated hereby do not and
shall not (a) contravene the Articles of Incorporation or Bylaws of
the Company or (b) with or without the giving of notice or the
passage of time (i) violate, conflict with, or result in a breach
of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or
license to which the Company is a party or by which the Company is
bound, or any judgment, order or decree, or any law, rule or
regulation to which the Company is subject, (ii) result in the
creation of, or give any party the right to create, any lien,
charge, encumbrance or any other right or adverse interest
(“
Liens ”)
upon any of the assets of the Company, (iii) terminate or give any
party the right to terminate, amend, abandon or refuse to
perform,
any material agreement, arrangement or commitment to which the
Company is a party or by which the Company’s assets are
bound, or (iv) accelerate or modify, or give any party the right to
accelerate or modify, the time within which, or the terms under
which, the Company is to perform any duties or obligations or
receive any rights or benefits under any material agreement,
arrangement or commitment to which it is a party.
2.3
Capitalization . The
authorized capital stock of the Company immediately prior to giving
effect to the transactions contemplated hereby consists of
25,000,000 shares of Company Common Stock, $0.001 par value. As of
the date hereof and prior to the return of the Company Shares for
cancellation, there are 21,780,226 shares of Company Common Stock
issued and outstanding. All of the outstanding shares of Company
Common Stock are duly authorized, validly issued, fully paid and
nonassessable, and have not been issued in violation of any
preemptive right of shareholders. There is no outstanding voting
trust agreement or other contract, agreement, arrangement, option,
warrant, call, commitment or other right of any character
obligating or entitling the Company to issue, sell, redeem or
repurchase any of its securities, other than the Bioauthorize Share
Exchange Agreement and this Agreement, and there is no outstanding
security of any kind convertible into or exchangeable for Company
Common Stock. The Company has not granted registration rights to
any person.
2.4
Financial Statements . The
Company has provided the Shareholder copies of the (i) the
consolidated balance sheet of the Company at December 31, 2006, and
the related consolidated statements of income, shareholders’
equity and cash flows for the years ended December 31, 2006 and
2005, including the notes thereto, as audited by Weaver &
Martin, LLC, independent registered public accounting firm, and
(ii) the unaudited condensed consolidated balance sheet of the
Company at September 30, 2007, and the related unaudited condensed
consolidated statements of income, comprehensive income and cash
flows for the three month and nine month periods then ended (the
“
Financial Statements ”).
The Financial Statements, together with the notes thereto, have
been prepared in accordance with U.S. generally accepted accounting
principles applied on a basis consistent throughout all periods
presented. The Financial Statements present fairly the financial
position of the Company as of the dates and for the periods
indicated. The books of account and other financial records of the
Company have been maintained in accordance with good business
practices.
2.5
No Undisclosed Assets or Liabilities . Except
as set forth on the Financial Statements, the Company does not have
any (a) material assets of any kind or (b) material liabilities or
obligations, whether secured or unsecured, accrued, determined,
absolute or contingent, asserted or unasserted or
otherwise.
2.6
Litigation . There
is no claim, dispute, action, suit, proceeding or investigation
pending or, to the knowledge of the Company, threatened, against or
affecting the business of the Company, or challenging the validity
or propriety of the transactions contemplated by this Agreement, at
law or in equity or admiralty or before any federal, state, local,
foreign or other governmental authority, board, agency, commission
or instrumentality, nor to the knowledge of the Company, has any
such claim, dispute, action, suit, proceeding or investigation been
pending or threatened, during the twelve month period preceding the
date hereof. There is no outstanding judgment, order, writ, ruling,
injunction, stipulation or decree of any court, arbitrator or
federal, state, local, foreign or other governmental authority,
board, agency, commission or instrumentality, against or materially
affecting the business of the Company. The Company has not received
any written or verbal inquiry from any federal, state, local,
foreign or other governmental authority, board, agency, commission
or instrumentality concerning the possible violation of any law,
rule or regulation or any matter disclosed in respect of its
business.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GENESIS
LAND
Genesis
Land and the Company jointly and severally represent and
warrant to the Shareholder that now and as of the
Closing:
3.1
Due Organization and Qualification; Subsidiaries, Due
Authorization .
(a)
Genesis
Land is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Nevada, with
full corporate power and authority to own, lease and operate
its business and properties and to carry on its business in
the places and in the manner as presently conducted or
proposed to be conducted. Genesis Land is in good standing as
a foreign corporation in each jurisdiction in which the
properties owned, leased or operated, or the business
conducted, by it requires such qualification except for any
such failure, which when taken together with all other
failures, is not likely to have a material adverse effect on
the business of Genesis Land.
(b)
Genesis
Land does not own, directly or indirectly, any capital stock,
equity or interest in any corporation, firm, partnership,
joint venture or other entity. There is no contract,
agreement, arrangement, option, warrant, call, commitment or
other right of any character obligating or entitling Genesis
Land to issue, sell, redeem or repurchase any of its
securities, other than this Agreement, and there is no
outstanding security of any kind convertible into or
exchangeable for securities of Genesis Land.
(c)
Genesis
Land has all requisite power and authority to execute and
deliver this Agreement, and to consummate the transactions
contemplated hereby and thereby. Genesis Land has taken all
corporate action necessary for the execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby, and this Agreement constitutes the valid
and binding obligation of Genesis Land, enforceable against
Genesis Land in accordance with its terms, except as may be
affected by bankruptcy, insolvency, moratoria or other similar
laws affecting the enforcement of creditors’ rights
generally and subject to the qualification that the
availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore
may be brought.
3.2
No Conflicts or Defaults . The
execution and delivery of this Agreement by Genesis Land and the
consummation of the transactions contemplated hereby do not and
shall not (a) contravene the Articles of Incorporation and Bylaws
of Genesis Land, or (b) with or without the giving of notice or the
passage of time, (i) violate, conflict with, or result in a breach
of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or
license to which Genesis Land is a party or by which Genesis Land
or any of its assets are bound, or any judgment, order or decree,
or any law, rule or regulation to which its assets are subject,
(ii) result in the creation of, or give any party the right to
create, any lien upon any of the assets of Genesis Land, (iii)
terminate
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