Exhibit 2.1
SHARE EXCHANGE AGREEMENT
BY AND BETWEEN
CLENERGEN CORPORATION
AND
CLENERGEN CORPORATION LIMITED (UK)
DATED AS OF AUGUST 30, 2009
THIS SHARE EXCHANGE AGREEMENT dated as of August 30, 2009 (this "Agreement")
between Clenergen Corporation, a State of Nevada public company ("CLENERGEN")
and Clenergen Corporation Limited (UK), a United Kingdom corporation ("CLENERGEN
UK").
WHEREAS, CLENERGEN desires to issue and exchange 70,278,529 shares of its common
stock in accordance with the requirements of Rule 144 to the shareholders and
consultants of CLENERGEN UK in exchange for One Hundred Percent (100%) of the
outstanding shares of the common stock of CLENERGEN UK (collectively the
"Exchange Shares").
NOW THERFORE, 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 SHARES
SECTION 1.1: THE SHARES.
The Shares shall be issued and exchanged to both CLENERGEN and CLENERGEN UK
pursuant to Article II hereof.
ARTICLE II: SHARE EXCHANGE
SECTION 2.1: SHARE EXCHANGE.
Upon the terms and subject to the conditions of this Agreement CLENERGEN agrees
to issue and exchange to (i) the shareholders of CLENERGEN UK, as identified in
Schedule One, attached hereto and made a part thereof, and (ii) certain
individuals who have been approved by CLENERGEN UK as authorized consultants, as
identified in Schedule Two, attached hereto and made a part thereof, the
Exchange Shares, and in exchange therefore at the Share Exchange Closing,
CLENERGEN UK with full authority from its shareholders, shall issue to CLENERGEN
the Exchange Shares.
SECTION 2.2: SHARE EXCHANGE CLOSING.
(a) CLENERGEN will have its transfer agent issue the certificates representing
the Exchange Shares and registered in the name of the shareholders and
consultants of CLENERGEN UK and CLENERGEN UK will deliver a certificate
representing the Exchange Shares and registered in the name of CLENERGEN. The
Share Exchange Closing and date of such deliveries shall be 12:00 pm., East
Coast Time, on a date and at a place to be specified by the parties (the "Share
Exchange Closing"), which date shall be no later than the day after satisfaction
or waiver of the latest to occur of the conditions set forth in Article V, but
in no event later than September 15, 2009.
(b) The documents to be delivered at the Share Exchange Closing by or on behalf
of the parties hereto pursuant to this Article II and any additional documents
requested by either Party pursuant to Section 7.2, will be delivered at the
Share Exchange Closing at the offices of CLENERGEN as listed and identified in
Section 7.1 (a).
ARTICLE III: ADDITIONAL BUSINESS
Upon the terms and subject to the conditions of this Agreement CLENERGEN agrees
to pay to those shareholders, and investors, as identified in Schedule Three,
attached hereto and made a part therof, who have transferred certain assets and
loaned and/or advanced and retained funds for operational purposes to CLENERGEN
UK, the total sum of GBP(pound)910,053.00 (USD$1,480,684.00 Exchange rate as of
08/30.2009) on or before sixty days from the date of the execution of this
Agreement, unless another time schedule is agreed to by the Parties..
ARTICLE IV: REPRESENTATIONS AND WARRANTIES OF CLENERGEN
CLENERGEN represents and warrants to CLENERGEN UK as of the date hereof that:
SECTION 4.1: EXISTENCE AND POWER.
CLENERGEN is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada. CLENERGEN 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 4.2: CAPITALIZATION.
The authorized capital stock of CLENERGEN consists of 150,000,000 shares of
CLENERGEN Common Stock of which, as of May 9, 2009 (the "CLENERGEN
Capitalization Date") no more than 35,000,000 shares were issued and
outstanding. All of the issued and outstanding shares of CLENERGEN's Common
Stock have been duly authorized and validly issued and are fully paid,
non-assessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. CLENERGEN also has 10,000,000 shares of
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Preferred Stock which is in the process of being issued. The Preferred Shares
have Voting rights of 10 shares to 1 common share and cannot be converted into
common stock.
SECTION 4.3 AUTHORIZATION.
The execution, delivery and performance of this Agreement has been duly
authorized by all necessary action on the part of CLENERGEN, and this Agreement
is a valid and binding obligation of the Company, enforceable against it in
accordance with their terms.
SECTION 4.4 BOARD APPROVALS.
The transactions contemplated by this Agreement, including without limitation
the issuance of the Shares and the compliance with the terms of this Agreement,
have been unanimously adopted, approved and declared advisable unanimously by
the Board of Directors of CLENERGEN.
SECTION 4.5: VALID ISSUANCE OF EXCHANGE SHARES.
The Shares have been duly authorized by all necessary corporate action. When
issued and sold against receipt of the consideration therefore, the Shares will
be validly issued, fully paid and non-assessable, will not subject the holders
thereof to personal liability and will not be issued in violation of preemptive
rights. The voting rights provided for in the terms of the Shares are validly
authorized and shall not be subject to restriction or limitation in any respect.
SECTION 4.6: CORPORATE STRUCTURE AND CURRENT PROJECTS
CLENERGEN has built a project development team that has worked on many
successful alternative energy projects since 1983. These projects include
recycling of waste to energy; solar; biodiesel; wind; biomass, methane gas
conversion; recycling and many different technologies. CLENERGEN intends to
pursue these types of projects worldwide.
CLENERGEN will only use the brand name CLENERGEN for all biomass projects using
CLENERGEN IP or methodologies.
SECTION 4.7 VALUATION
CLENERGEN (is a U.S. public company called Clenergen Corporation CRGE listed on
the Bulletin Board exchange in the United States. The opening price was $0.75per
share. Therefore the shares to be issued to the shareholders and consultants of
CLENERGEN UK will be valued at $51,831,936.00 USD.
SECTION 4.8: NON-CONTRAVENTION.
The execution, delivery and performance of this Agreement, and the consummation
by CLENERGEN 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 Restated Articles of Incorporation or Bylaws of the Company or the articles
of incorporation, charter, bylaws or other governing instrument of any
Subsidiary of the Company.
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SECTION 4.9: PURCHASE FOR OWN ACCOUNT.
CLENERGEN is acquiring the Exchange Shares for its own account and not with a
view to the distribution thereof in violation of the Securities Act of 1933, as
amended, and the rules and regulations of the Securities and Exchange Commission
(the "SEC") promulgated thereunder (the "Securities Act").
SECTION 4.10: PRIVATE PLACEMENT.
CLENERGEN understands that (i) the Exchange Shares have not been registered
under the Securities Act or any state securities laws, by reason of their
issuance by CLENERGEN UK in a transaction exempt from the registration
requirements thereof and (ii) the Exchange Shares may not be sold unless such
disposition is registered under the Securities Act and applicable state
securities laws or is exempt from registration thereunder.
SECTION 4.11: LEGEND.
Each certificate representing an Exchange Share will bear a legend to the
following effect unless CLENERGEN UK determines otherwise in compliance with
applicable law:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NEITHER THIS SHARE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT."
ARTICLE V: REPRESENTATIONS AND WARRANTIES OF CLENERGEN UK
CLENERGEN UK represents and warrants to CLENERGEN as of the date hereof that:
SECTION 5.1: EXISTENCE AND POWER.
CLENERGEN UK is a corporation duly incorporated, validly existing and in good
standing under the laws of the United Kingdom. CLENERGEN UK 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 5.2: CAPITALIZATION.
The authorized capital stock of CLENERGEN UK consists of 150,000,000 shares of
CLENERGEN UK Common Stock of which, as of May 9, 2009 (the "CLENERGEN UK
Capitalization Date") no more than 12,830,561 shares were issued and outstanding
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(attached as Schedule 1), All of the issued and outstanding shares of CLENERGEN
UK's Common Stock have been duly authorized and validly issued and are fully
paid, non-assessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof.
SECTION 5.3: AUTHORIZATION.
The execution, delivery and performance of this Agreement has been duly
authorized by all necessary action on the part of CLENERGEN UK, and this
Agreement is a valid and binding obligation of the Company, enforceable against
it in accordance with their terms.
SECTION 5.4: BOARD APPROVALS.
The transactions contemplated by this Agreement, including without limitation
the issuance of the Shares and the compliance with the terms of this Agreement,
have been unanimously adopted, approved and declared advisable unanimously by
the Board of Directors of CLENERGEN UK.
SECTION 5.5: VALID ISSUANCE OF EXCHANGE SHARES.
The Shares have been duly authorized by all necessary corporate action. When
issued and sold against receipt of the consideration therefore, the Shares 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. The voting rights provided for in the terms of the Shares are validly
authorized and shall not be subject to restriction or limitation in any respect.
The Shares will have Anti-Dilution Rights. The exceptions for the Anti-Dilution
Rights are (1) for any merger or acquisition that has certified financial
statements where the value exchanged is based on the current valuation of
CLENERGEN UK and (2) for all investment at or equal to current valuation. The
intent of the Anti-Dilution Rights exceptions is that CLENERGEN'S Valuation will
not be reduced by these transactions.
SECTION 5.6: CORPORATE STRUCTURE AND CURRENT PROJECTS
Clenergen Corporation (formerly American Bonanza Resources Corp.) (The Company)
was incorporated under the laws of the State of Nevada on May 2, 2005. The
Company was formed to engage in the acquisition, exploration and development of
natural resource properties.
Effective March 19, 2009, the Company changed its name from American Bonanza
Resources Corp. to Clenergen Corporation.
BUSINESS DESCRIPTION
Clenergen installs, owns and operates small to medium sized renewable
Distributed Environmental Power Systems (DEPS) to local municipalities,
manufacturers and national grid which are powered by the use of biomass produced
from proprietary feedstock's cultivated specifically for this purpose. The model
offers a controlled environment with an environmentally sound and sustainable
Clean Energy Generation system, which is in compliance with and in excess of
international standards for environmental protection, biodiversity, quality,
safety and full traceability.
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Clenergen addresses the needs of a cleaner greener planet with an
environmentally sound and sustainable Clean Energy Generation system, which is
in compliance with and in excess of international standards for environmental
protection, biodiversity, quality, safety and full traceability backed by a
global management team providing a deep wealth of experience in the science,
technology, finance and management of this business, as well as practical
experiences of managing and investing in similar businesses in both emerging and
developed markets.
Significant cash flow generation is provided after the initial build-out phase
to adequately service debt; the stability of those cash flows is partially
guaranteed through long term, defined, Government provided Power Purchase
Agreements (PPA).
CLENERGEN BUSINESS MODEL:
After significant research and development the company has developed a program
to:
* produce high-density, short-rotation biomass crops on a commercial
scale at a cost of production equivalent to or less than the price of
coal using a proprietary integrated farming model, and
* to produce power, steam, hydrogen, chemicals and other important
products through advanced gasification technologies.
MANAGEMENT TEAM
Clenergen Management recognized very early in the investment cycle of future
power production platforms that a large and investable gap existed in the area
of co-generation / co-gasification (of petcoke and coal), using biomass in
conjunction with standard hydrocarbon fuels. In taking the unique position of
approaching the issue from a plant science and plantation management perspective
rather than from one of engineering, Clenergen has achieved a vital component in
the future of co-gasification, the ability to deliver a standard, uniform virgin
biomass on a commercial scale at regular intervals over a long period of time
with a calorific value in excess of 17Mj/Kg.
This ensures that none of Clenergen power projects stand exposed to the vagaries
of the market prices and supplies of feedstocks.
PLANT SCIENCE
A unique feature of Clenergen's business model is the application of the Tree
adaptation process on the proprietary feedstock plants. Clenergen has identified
one fast growing species of tree and another species of Grass to which it
applied a proprietary Tree Adaption Process for rapidly increasing its growth
rate by 30 to 40%, for the purpose of producing an economically viable source of
feedstock/biomass for generating a renewable source of electricity
GASIFICATION:
Gasification is the only technology that combines the economic advantages of
coal with the environmental benefits of natural gas.
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This technology is perhaps the only technology that produces 24x7 `green-clean
energy', all through the year without any dependence on monsoon, sunlight, wind
and on nature, in general and without the hazards of radiation, a permanent
threat in nuclear fission technology. The capability of gasification to displace
coal combustion, natural gas and petroleum is a major incentive for Governments
in developed and developing nations to rapidly deploy this proven technology.
South Africa, Finland, Sweden and Norway have demonstrated successfully over the
last 50 years, the benefits of the deployment of gasification technology.
Besides the above, since gasification produces a syngas of hydrogen and carbon
monoxide, it is the only conventional energy technology (besides nuclear
fission) capable of producing the massive quantities of hydrogen that would be
required to convert all or a major portion of the world's transportation fleet
from gasoline and diesel fuel to hydrogen in the future.
BIOMASS FUELLED GASIFICATION
In 2004, The Gasification Technologies Council (xxx.xxxxxxxxxxxx.xxx) identified
385 commercial scale gasoliers in use globally in 27 different nations on four
continents. With name such as General Electric, Siemens, Sasol, Sembcorp
Industries and Xxxxxx Xxxxxxx all involved in gasification technology or
gasification projects, the technology is well established, proven and highly
refined. Last year, Sembcorp Utilities (the Govt. of Singapore's industrial
conglomerate - utilities division) opened their $200M Wilton, UK, wood fuelled
electricity generation plant.
In 2006, global electricity production through biomass fuelled gasification was
estimated to be in excess of 60 GW's, with Germany, Holland, Hungary, Poland and
Spain showing extraordinary expansion of the technology (due to EU Renewable
Energy Directive) and China, fast becoming a significant player.
In the United Kingdom, large scale coal fired power plants are integrating up to
25% biomass in order to reduce their carbon footprint; in conjunction with
expansion into 100% biomass supplied Power Plants. Over 300MW per hour Biomass
power plants are scheduled to be operational within the next 3 years.
MARKET ANALYSIS
Xxxxxxx Xxxxx estimates that at the end of 2007, the global power shortage was
350 Gigawatts (350k MW), with almost 1/3 of that coming from India alone. They
further project that figure to rise to 1 Terawatt by 2018. The International
Energy Agency (IEA) has also predicted that global energy demand will rise by
60% by 2030. This equates to 4,800 GW of new generating capacity, 2,000GW of
which will be needed in OECD alone, largely to replace legacy coal and nuclear
generating plants.
CLENERGEN IN INDIA:
Clenergen has set up its wholly owned subsidiary in India, Clenergen India
Private Limited to execute the first of its global projects. Clenergen
Corporation Limited owns 9999 shares and Xxxx Xxxxx 1. Xx Xxxxxx Xxxxxxxx is Non
Executive Chairman, Xxxx Xxxxx, Acting Chief Executive Officer and Xxxxxxxx
Xxxxx as Chief Financial Officer. The company has appointed a Board of Advisors
as follows:
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>> Dr Muthuchelan Plant Science Advisor, Madurai University
>> Dr Bahahti Biotechnology science Advisor, Member Indian National
Bamboo Mission.
Clenergen India has executed a 15 Year Power Purchase Agreement with PTC India
Limited, India's largest Power Trading Company for 71MW/Hr. This contract is
being executed with the proposed establishment of a 16MW/Hr Power Plant in the
State of Tamilnadu, feedstock for which would be generated from a 4000 acre
plantation and a 64MW/Hr Power Plant in the State of Karnataka for which the
feedstock would be generated from a 16000 acre plantation.
The combined projects of Clenergen India are projected to deliver a project IRR
of 28.32% and an IRR of 40.17% on the equity invested on revenues from sale of
electricity at US$ 0.125 per KW/Hr. The project payback period is projected at
3.87 years and there is no taxation on the income earned on these projects in
India for 10 years from the date of commencement of commercial power generation.
There is also an exemption granted on levy of Customs Duties on imports of
Capital Equipments.
Future projects include a co-gasification of petcoke and coal dust with biomass
initially on trial projects of 2x 21MW/Hr to be upgraded to a 196MW/Hr and a
156MW/Hr on petcoke and coal dust co-gasification with biomass respectively.
The company has submitted and offer and received acceptance for the acquisition
of a 1.5MW per hour agricultural waste to green energy anerobic Digestive
System. The acquisition of United Biofuels Private Limited has been agreed at a
cost of $150,000 of which 50% will be paid for in 144K restricted stock at a
discount of 30% to the current market share trading value.
Ernst and Young have been mandated to raise the private equity and the debt for
the project with a possible floatation with listing on the Indian National Stock
Exchange in Dec 2009/Jan 2010.
CLENERGEN KARNATAKA PRIVATE LIMITED
The Company was formed with Clenergen Corporation Limited retaining 9,99% of the
shares in the company and VS Nair owning 1 share and a seat on the Board of
Directors of Clenergen Karnataka Private Limited.
The company was formed in order to enter into a 49 year lease agreement with the
Government of Karntatala for a 25,000 acre land parcel of Agri-Forestry land,
along with water irrigation rights which provide for the cultivation of Beema
Bamboo
BUSINESS DEVELOPMENT: GHANA
Clenergen, in association with a leading Infrastructure Company is proposing to
execute a 56MW/Xx xxxx biomass gasification project in Ghana with the feedstock
originating from a planned 14000 acre plantation on a `Private Public
Partnership' with the Government of Ghana with supplies of power to the National
Grid of Ghana under terms of a of a Power Purchase Agreement and structured
financing directly with the Government of Ghana.
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The Infrastructure Company have a mandate from the Government of Ghana for the
execution of power generation projects has and have approached Clenergen for a
joint execution using Clenergen proprietary feedstock's and the integrated
business model.
In addition to this, Clenergen is developing a project for generation of 16MW/Hr
of power exclusively for a large multinational mining company on a long term
contract. The IRR will be significantly higher due to the current cost of energy
mining companies are experiencing in this region in order to secure a guaranteed
supply of power.
BUSINESS DEVELOPMENT: GUYANA:
Clenergen, through a partnership with a leading plantation company, will have
lease rights of up to 150,000 acres of grasslands on the banks of the river
Berbice in Guyana which will be utilized for plantations of Clenergen
proprietary feedstock's in phases of 5000 acres each. The cost of producing a
Metric Ton of biomass is considerably lower than other forms of biomass
feedstock while the biomass has a ready market in the United States and in the
United Kingdom where the current price of such wood biomass in chips/pellets
form is in excess of $100 a Metric Ton.
Clenergen will be supplying biomass chips to UK based coal fired power
generating companies which will be using the biomass to co-fire with coal to cut
down on carbon
Emissions, as per EU directives. The project offers the potential to supply up
to 6 million Metric Tons of biomass over 5 years and is in advanced stages of
negotiations.
BUSINESS DEVELOPMENT: UGANDA:
Clenergen Corporation Limited has entered into a Strategic Marketing Agreement
with Carbon Impact Limited, for the purpose of implementing a 4 MW per hour
power plant within 50 km of Kampala, with water irrigation and power substation
connectivity within 5 km of the Power Plant. 800 acres of land have been sourced
through a single owner under terms of a 49 year lease and Power Purchase
Agreement with the Power Trading Corporation of India Limited (PTC).
BUSINESS DEVELOPMENT: RUSSIA:
Clenergen, is at the business development level in the Russian Federation and
presented by the President of the Russian Society of Biotechnologists. The
President reports to the Deputy Vice Chairman of the Xxxxx (Mr. Mostorov) who
holds the 4th highest seat in the parliament. Mr. Mosorov has provided written
acceptance of a project to generate 5.6MW of renewable electricity for supply to
the Olympic Village during the upcoming winter Olympic Games. Based on a sales
price of 6 cents per KWh, Clenergen would break even on the project, however as
an incentive, Clenergen will be appointed and granted the position of an
official sponsor of the Olympic Games. Agricultural waste and wood chips in
quantities of 30,000 tonnes per annum are accessible and at a cost below $40 per
ton.
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SOCIAL RESPONSIBILITY
In order to create long term regional sustainability, it is the company's
responsibility to have a social and environmental impact program and integrate
its operations into the core of the local social network and population of the
region under development.
This plan will include assisting with educational facilities, scholarship
programs, providing health care facilities and proper housing/meals for
employees, and a responsible attitude toward protecting the lands of the
community. The Clenergen Foundation creates projects that will empower the
people in the countries we work in. The Foundation has developed over a 3 year
period an agricultural product that provides all the necessary inputs for
cultivation of 1 hectare of Jatropha on marginalised land. The program (Jat in a
box) will empower rural farmers with an additional source of income which over
time could yield in excess of $1000 per acre.
SECTION 5.7: VALUATION
CLENERGEN UK has produced all due diligence including contracts, memorandums,
letters of intent, business plans, financial data, cap table and miscellaneous
information used to formulate the valuation of $322 Million USD and agrees to a
lock-up until all equity and debt financing has been arranged for the 71 MW and
the first plant is online producing electricity with the first cash payment for
electricity received, but no more than three years at the latest. If the first
plant is not up and running in three years then the total stock issued will be
reduced for the Enterprise Value of CLENERGEN UK three years from the execution
of this Agreement.
SECTION 5.8: NON-CONTRAVENTION.
The execution, delivery and performance of this Agreement, and the consummation
by CLENERGEN UK 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 Restated Articles of Incorporation or Bylaws of the Company or the articles
of incorporation, charter, bylaws or other governing instrument of any
Subsidiary of the Company.
SECTION 5.9: PURCHASE FOR OWN ACCOUNT.
The shareholders of CLENERGEN UK are acquiring the Exchange Shares for their own
individual account and not with a view to the distribution thereof in violation
of the Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission (the "SEC") promulgated thereunder (the
"Securities Act").
SECTION 5.10: PRIVATE PLACEMENT.
CLENERGEN UK understands that (i) the Exchange Shares have not been registered
under the Securities Act or any state securities laws, by reason of their
issuance by CLENERGEN in a transaction exempt from the registration requirements
thereof and (ii) the Exchange Shares may not be sold unless such disposition is
registered under the Securities Act and applicable state securities laws or is
exempt from registration thereunder.
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SECTION 5.11: LEGEND.
Each certificate representing an Exchange Share will bear a legend to the
following effect unless CLENERGEN determines otherwise in compliance with
applicable law:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NEITHER THIS SHARE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT."
ARTICLE VI: CONDITIONS TO SHARE EXCHANGE CLOSING
SECTION 6.1: CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE EXCHANGE.
The respective obligations of the parties hereunder to effect the Exchange shall
be subject to the following condition:
1. 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.
ARTICLE VII: TERMINATION
SECTION 7.1: INJUNCTION; ILLEGALITY.
This Agreement may be terminated at any time prior to the Share Exchange Closing
by either Party if (a) an order, injunction or decree shall have been issued by
any court or agency of competent jurisdiction and shall be non-appealable, or
other law shall have been issued preventing or making illegal the completion of
the Exchange or the other transactions contemplated by this Agreement.
ARTICLE VIII: VALUATION
The valuation is based upon future earnings from projects that are to be built
based upon executed contracts. The stock that is exchanged is locked-up until
all equity and debt financing has been arranged for the 71 MW Indian facilities
and the first plant is online producing electricity with the first cash payment
for electricity received but in any case no more than three years from the
execution of this Agreement.
The valuation is based on the combination of the lock up of the stock, 71 MW
India project built with an enterprise value of $322 Million USD; and on the
basis that if 71 MW is not up and running three years from today then the common
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stock issued will be adjusted for the then Enterprise Value of CLENERGEN UK.
This adjustment will be on the basis of Enterprise Value three years from today
applied as a fraction against the $322 Million valuation.
ARTICLE IX: MISCELLANEOUS
SECTION 9.1: 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 CLENERGEN, to:
Clenergen Corporation
0000 Xxxxx Xxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000 XXX
Tel: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxx XX Xxxxx, CEO
(b) if to CLENERGEN UK, to:
Clenergen Corporation Limited (UK)
Xxxx Xxxxx, 0 Xxxxxx Xxxxx,
Xxxxxx XX0X 0XX, XX
Tel: x00 (0) 00 0000 0000
Fax: x00 (0) 00 0000 0000
Attn: Xxxxxxx Xxxxxxxx, Director/Executive vice President
SECTION 9.2: 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.
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SECTION 9.3: 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
CLENERGEN and CLENERGEN UK. 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 9.4: 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 89.5: 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 9.6: GOVERNING LAW.
This Agreement shall be governed and construed in accordance with the internal
laws of the State of Florida 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 Florida. 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.
SECTION 9.7: 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.
13
SECTION 9.8: 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 9.9: EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 9.10: 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 9.11: 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 9.12: 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.
14
CLENERGEN CORPORATION (FLORIDA)
By: /s/ Xxxx XX Xxxxx
--------------------------------------
Name: Xxxx XX Xxxxx
Title: Chief Executive Officer
CLENERGEN CORPORATION LIMITED (UK)
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director/Executive Vice President
15
SCHEDULE ONE
No. of
Name and Address Common Shares Category
---------------- ------------- --------
XXXXXX XXXXXX 750,000 Subscription
0 Xxxxx Xxxx
Xxxxxxxxxxxx Xxxx
Xxxx Xxxxxxxx
Xxxxxxxx XX00 0XX
Passport No: 000000000
XXXXXXXXXXXX XXXXXXX 2,250,000 Subscription
000, Xxxxxx Xxxx
Xxxxxxxxx
Xxxxxx, XX00 0XX
Passport No: 000000000
XXXXXXX ORANGE 393,575 Subscription
00 Xxxxxxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxxxx XX00 0XX
Passport No: 000000000
XXXXXXX XXXXXXXXXX 282,383 Subscription
00 Xxxxx Xxxx Xxxxxxx
Xxxxxx X0 0XX
Passport No: 000000000
16
XXXXX XXXXXX 131,190 Subscription
Flat3
00 Xxxxxxxxxx Xxxx Xxxxxx
Xxxxxx X00 0XX
NI No: XX 00 00 00X
XX XXXXXXX XXXXXXXX 60,000 Subscription
Apt 00
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxx -0
Passport No: X0000000
XXXXXX XXXXX 65,580 Subscription
Xxxx 0, Xxxxxx Xxxxx
0 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
NI No: XX 00 00 00 X
XXXXX XXXX XXXXXXXX 80,000 Subscription
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Passport No : 000000000
XXXXXX XXXXXX 52,485 Subscription
4 Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx XX00 0XX
Passport No: 000000000
17
XXXX XXXXXX 52,485 Subscription
4 Racedown Cottages
Thruxton Down
Andover
Hants SP11 8PP
Passport no: 000000000
XXXXXX XXXXXXX 52,485 Subscription
4 Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx XX00 0XX
Passport No: 000000000
XXXXXXX XXXXX 52,485 Subscription
4 Racedown Cottages
Thruxton Down
Andover
Hants SP11 8PP
Passport No: 000000000
XXXXXXXX XXXXXXXXX XXXXXXXXX 65,598 Subscription
00 Xxxxxxxxx Xxxxxx
Xxxxxx
Xxxxxxxxxx XX0 00X
Passport No: 000000000
18
XXXXXXX XXXX XXXXXXXXX 65,598 Subscription
45 Gunton toad
Xxxxx Xxxxxxx
Xxxxxx X0 0XX
Passport No: 000000000
XXXXXXXXXXX XXXX XXXXXXXX 65,598 Subscription
00 Xxxxxxx Xxxxx
Xx Xxxxxxxxxx Xxx
Xxxxxxx
Xxxxxx X0X 0XX
Passport No: 000000000
NIC MALCOMSON 65,598 Subscription
0X Xx Xxxx'x Xxxxxx Xxxxx
Xxxxxx X0 0Xx
NI No: XX 00 00 00X
XXXX XXXXXXX 65,598 Subscription
00 Xxxxxxx Xxxx
Xxxxxx X00 0XX
Passport No: 000000000
XXXXXX XXXXXXXX 262,383 Subscription
Xxxxxxxxxxxxxx 00
XX 0000 Xxxxxx
ID Card: E0739203
19
XXXXXX XXXXXXXX 320,000 Subscription
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Passport No: 000000000
XXXXXXX MORALLEE 262,320 Subscription
000X Xxxxxxxxx Xxxx
Xxxxxx XX00 0 XX
Passport No: 000000000
MR & MRS R XXXX 65,580 Subscription
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
R Xxxx- Passport No: 000000000
J Xxxx - Passport No: 000000000
XXXXXXX XXXXXX 52,485 Subscription
4 Racedown Cottages
Thruxton Down
Andover
Hants SP11 8PP
Passport No: 000000000
XXXXXXX X X XXX 65,580 Subscription
00X Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Passport No: X00000000
20
XXXXXXXXX XXXXXXXXX 65,580 Subscription
00 Xxxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX00 0XX
Passport No: 000000000
NIC MALCOMSON 90,000 Subscription
0X Xx Xxxx'x Xxxxxx Xxxxx
Xxxxxx X0 0Xx
NI No: XX 00 00 00X
XXXXXXX XXXXXXXX 760 Subscription
00 Xxxxxx Xxxx
Xxxxx Xxxxxxx
Xxxxxx X0 0XX
Passport No: 000000000
XXXX XX XXXXX 760 Subscription
00 Xxxxxxx Xxxxx
Xxxxxxx
Xxxxxxxxx
Xxxx XX00 0XX
Passport No: 000000000
21
ROOTCHANGE LIMITED 5,865,175 Subscription
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Company Reg: 5604595
NIC MALCOMSON 60,000 Subscription
0X Xx Xxxx'x Xxxxxx Xxxxx
Xxxxxx X0 0Xx
NI No: XX 00 00 00X
XXXXX XXXXXX 120,000 Subscription
Flat3
00 Xxxxxxxxxx Xxxx Xxxxxx
Xxxxxx X00 0XX
NI No: XX 00 00 00X
XXXXXXX MORALLEE 262,320 Subscription
000X Xxxxxxxxx Xxxx
Xxxxxx XX00 2 LA
Passport No: 000000000
AMINA MISHKAS 131,160 Subscription
00 Xxxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxx
Xxxxxx X00 0XX
Passport No. Italian - D021264
22
XXXXXXX XXXX XX XXXX 262,320 Subscription
00 Xxxxxxxx Xxxxx
00-00 Xxxxxx Xxxxxx
Xxxxxx X0X 0XX
Passport No: USA-000000000
XXXX XXXXXXXX 262,320 Subscription
000X Xxxxxxxxx Xxxx
Xxxxxx XX00 0XX
Passport No: 000000000
XXXX MORALLEE 131,160 Subscription
00 Xxxxxxx Xxxx
Xxxxxx XX00 0XX
Passport No: 000000000
Total Share Allocations 12,830,561
23
SCHEDULE TWO
No. of
Name and Address Common Shares Category
---------------- ------------- --------
TIPTOP IRREVOCABLE TRUST 1,000,000 Consultancy
XX Xxx 000
Xxxxxx, XX 00000
ID#00-0000000
XXXXXX XXXX 3,000,000 Consultancy
0000 XX 000xx Xxxx
Xxxxx Xxxxxxx, XX.00000
SS#: ###-##-####
XXXXXXX XXXXXXXX 15,798,984 Consultancy
00 Xxxxxx Xxxx
Xxxxx Xxxxxxx
Xxxxxx X0 0XX
Passport No: 000000000
XXXX XX XXXXX 15,798,984 Consultancy
00 Xxxx Xxxxx Xxxx
Xxxxx Xxxxx
XX, 00000
SS#000 00 0000
24
XXXXX X XXXXX 1,750,000 Consultancy
Xxxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx
XX0 0XX
Passport No: 000000000
XXXXXX XXXXX-XXXXXX 750,000 Consultancy
Bramerton, Ferbies
Xxxxxxxxxx, Xxxxxxxxx Xxxxx
Xxxx XX0 0XX
Passport No: 000000000
XXXXXXX XXXXXXX 500,000 Consultancy
BP p.l.c.
0 Xx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Passport No: 000000000
XXXXXX XXXXXXXX 230,000 Consultancy
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Passport No: 000000000
25
QUOTEBRAND LIMITED 4,800,000 Consultancy
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Registration No: 04940607
XXXXXXXXX XXXXXXXXXX 4,600,000 Consultancy
00X Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx 000000
Xxxxx
PAN: XXXXX0000X
XXXXX XXXXXXXXXX 500,000 Consultancy
X X Xxx 000
Xxxxxxxx 0000, Xxxxx Xxxxxx
Passport No: 000000000
XXXXX XXXXXXX 100,000 Consultancy
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx 0000
Xxxxx Xxxxxx
Passport No: 000000000
XX XXXXXX XXXXXXXX 5,000,000 Consultancy
250 Defense Colony
HAL Stage 00
Xxxxx Xxxx, Xxxxxxxxx 000000
Xxxxxxxxx , Xxxxx
PAN: XXXXX0000X
26
PROF XX. XXXXXXXXXXXX XXXXXXXXXXXX 100,000 Consultancy
2/133 Sakthi Kudil
North First Street
Xxxxxxxx Nagar East
Madurai 625 021
Tamilnadu, India
PAN: XXXXX0000X
MID QUEENSLAND WOODWORKS INC 1,000,000 Consultancy
C/O: XXXX XXXXXX
Mid Queensland
0000 Xxxxx Xxxxx Xxxx XX
Xxxx, XX 00000
Company Reg: IBCIMT No. C 20395
XXXXXX XXXXXX 50,000 Consultancy
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Passport No: 000000000
27
XXXXXXX REGIMON 50,000 Consultancy
"Hridya"
TC 5/1025, Chavadimukku
Sreekariyam, Xxxxxxxxxx 000000
Xxxxxx, Xxxxx
PAN: XXXXX0000X
X. XXXXXXXXXX NAIR 200,000 Consultancy
"Hridya"
TC 5/1025, Chavadimukku
Sreekariyam, Xxxxxxxxxx 000000
Xxxxxx, Xxxxx
PAN: XXXXX0000X
GROWMORE BIOTECH 1,000,000 Consultancy
#00-X, XXXXXX Xxxxx 00
Xxxxx - 000 000
Xxxxxxxxx Xxxxx, Xxxxx
Company Registion No: 18-32185
INW 50,000 Consultancy
00 Xxxxxx Xxx
Xxxxxxxxxx
Xxxxxxxx, XX00 0XX
Registration No: 3829883
28
Xxxxxx Xxxx 50,000 Consultancy
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Passport No: 000000000
DEDIOURINA IRINA EVSTAFIEVNA 350,000 Consultancy
Ul Sedova, Dom55 Kv 104
Xxxxxx, 000000
Xxxxxx
Passport No: 63 X0000000
XXXXXX XXXXXX 150,000 Consultancy
000 Xxxxx Xxxxxx
Xxxx 0
Xxxxx, Xxxx, Xxxxx
Passport No: X00000000
XXXXX XXXXXX XXXXXXX XXXXXXX 100,000 Consultancy
00 Xxxxxxx Xxxxxxxx
Xxxxxxxxxxx
Xxxxx, Xxxxx
Passport No: X00000000
29
XXXX XXXXXXX 100,000 Consultancy
Lubachevskogo 24.81
Xxxxxx 000000
PASSPORT NO: 7036503558
XXXXXX XXXXXXX 100,000 Consultancy
00 X. Xxxxxx Xxxxxx, Xxx. Paltok
Xxx Xxxxxxxxx xxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxxx
Passport No: XX0000000
XXXXXX XXXXXXXX 120,000 Consultancy
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Passport No: 000000000
XXXXXXX X. XXXXXXXXX 100,000 Consultancy
X.X.Xxxxxxxxx Law Corporation
0000-000 Xxxxxx Xxxxx
Xxxxxxxxx XX X0X 0X0
Company Reg. No: BC0817351
30
XXXXX XX 100,000 Consultancy
Simou Menardou 8
Ria Court 0, 0xx Xxxxx
XX Xxx 00000
0000 Xxxxxxx
Xxxxxx
Company Reg. No: C-112652
Total Share Allocations: 57,447,968
31
SCHEDULE THREE
Name Position Invested Funds
---- -------- --------------
Xxxxxxxxx Xxxxxxx Investor (pound)45,000
Xxxxxx Xxxxxx Investor (pound)16,200
Xxxxxxx Orange Investor (pound)30,000
Xxxxxxx Xxxxxxxxxx Investor (pound)20,000
Xxxx Xxxxxxxxx Investor (pound)5,000
Xxxx Xxxxxxx Investor (pound)5,000
Xxxxxx Xxxxxxxx Investor (pound)20,000
Xxxxx Xxxxxx Investor (pound)10,000
Xxxxxxx Xxxxxxxxx Xxxxxxxxx Investor (pound)5,000
Xxxxxxx Xxxx Xxxxxxxxx Investor (pound)5,000
Xxxxxx Xxxxx Investor (pound)5,000
Xxxxx Xxxx Xxxxxxxx Investor (pound)5,000
Xxxxxx Xxxxxxxx Investor (pound)8,000
Xxxxxxxxxxx XxXxxxxx Investor (pound)5,000
Xxxxxx Xxxxxx Investor (pound)4,000
Xxxx Xxxxxx Investor (pound)4,000
Xxxxxx Xxxxxxxx Investor (pound)4,000
Xxxx Xxxxx Investor (pound)4,000
Xxxxxxx Xxxxxxxx Investor (pound)4,500
StephenM orallee Investor (pound)20,000
Mr&MrsRReid Investor (pound)5,000
Xxxxxxx Xxx Investor (pound)5,000
Xxxxxxx Xxxxxx Investor (pound)4,000
Xxxxxxxx Xxxxxxxxxx Investor (pound)5,000
Xxxx xxxxxxxx Investor (pound)20,000
Amina Mishkas Investor (pound)20,000
Xxxxxxx Xx Xxxx Investor (pound)20,000
Xxxx Xxxxxxx Investor (pound)10,000
Xxxxxxx Xxxxxxx Investor (pound)20,000
Sub Total (pound)333,700
Rootchange Limited Asset transfer (EBT) (pound)423,604
Xxxxxxx Xxxxxxx Investor N/A
Xxxx Xxxxx Investor N/A
32
Xxxxxxx Xxxxxxxx Loan (pound)49,750
Xxxxxxxxx Xxxxxxx Loan (pound)36,000
Xxx Xxxxxxx Loan (pound)2,400
Nic Malcolmson loan (pound)12,500
Xxxxx Xxxxxx loan (pound)10,000
Sub Total (pound)110,650
Xxxxxxxxx retained earnings (pound)9,413
Xxxxx Xxxxxxxx retained earnings (pound)36,013
Xxxxxxxx Xxxxxxxx retained earnings (pound)6,672
Total (pound)52,098
33
