SHARE EXCHANGE AGREEMENT
This
SHARE EXCHANGE AGREEMENT, dated as of October 24, 2008 (the “Agreement”) by and
among Elevated Throne Overseas Ltd., a British Virgin Islands company
(“Elevated
Throne”),
Green
Planet Bioengineering Co. Ltd., a Delaware corporation (“Green
Planet”)
and
all of the Shareholders of Elevated Throne, whose names are set forth on Exhibit
A attached hereto (“Elevated
Throne Shareholders”).
WHEREAS,
Elevated Throne Shareholders own 100% of the issued and outstanding shares
of
Common Stock of Elevated Throne (the "Elevated
Throne Shares");
WHEREAS,
Elevated Throne Shareholders believe it is in their best interest to exchange
the Elevated Throne Shares for shares of common stock of Green Planet, par
value
$.001 per share (“Green
Planet Shares”),
and
Green Planet believes it is in its best interests to acquire the Elevated Throne
Shares in exchange for Green Planet Shares, upon the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS,
it is the intention of the parties that: (i) Green Planet shall acquire 100%
of
the Elevated Throne Shares in exchange solely for the amount of Green Planet
Shares set forth herein; (ii) said exchange of shares shall qualify as a
tax-free reorganization under Section 368(a)(1)(B) of the Internal Revenue
Code
of 1986, as amended (the “Code”);
and
(iii) said exchange shall qualify as a transaction in securities exempt from
registration or qualification under the Securities Act of 1933, as amended
and
in effect on the date of this Agreement (the “Securities
Act”
)
NOW,
THEREFORE, in consideration of the mutual terms, conditions and other agreements
set forth herein, the parties hereto hereby agree as follows:
ARTICLE
I
EXCHANGE
OF SHARES FOR COMMON STOCK
Section
1.1 Agreements
to Exchange Elevated Throne Shares for Green Planet Shares.
On the
Closing Date (as hereinafter defined) and upon the terms and subject to the
conditions set forth in this Agreement, ELEVATED THRONE SHAREHOLDERS shall
sell,
assign, transfer, convey and deliver the ELEVATED THRONE Shares (representing
50,000 ELEVATED THRONE Shares or 100% of the issued and outstanding ELEVATED
THRONE Shares), to Green Planet, and Green Planet shall accept the ELEVATED
THRONE Shares from the ELEVATED THRONE SHAREHOLDERS in exchange for the issuance
to the ELEVATED THRONE SHAREHOLDERS of the number of Green Planet Shares set
forth opposite the names of the ELEVATED THRONE SHAREHOLDERS on Exhibit A
hereto.
Section
1.2
Capitalizations. On the Closing Date, immediately before the transactions to
be
consummated pursuant to this Agreement, Green Planet shall have authorized
(a)
250,000,000 shares of Common Stock, par value $0.001 per share, of which
1,000,000 shares shall be issued and outstanding, all of which are duly
authorized, validly issued and fully paid and the detailed shareholdings of
which are more particularly set out in Exhibit B hereto; and (b) 10,000,000
shares of Preferred Stock, $0.001 par value, of which no shares are issued
or
outstanding.
Section
1.3
Closing.
The
closing of the exchange to be made pursuant to this Agreement (the "Closing")
shall take place at 10:00 a.m. E.D.T. on the second business day after the
conditions to closing set forth in Articles V and VI have been satisfied or
waived, or at such other time and date as the parties hereto shall agree in
writing but no later than October 24, 2008 (the "Closing Date"), at the offices
of Xxxxxxxx
& Xxxx LLP.
At the
Closing, ELEVATED THRONE SHAREHOLDERS shall (i) deliver to Green Planet the
stock certificates representing 100% of the ELEVATED THRONE Shares, duly
endorsed in blank for transfer or accompanied by appropriate stock powers duly
executed in blank. In full consideration and exchange for the ELEVATED THRONE
Shares and payment, Green Planet shall issue and exchange with ELEVATED THRONE
SHAREHOLDERS 14,141,667 Green Planet Shares representing approximately 282.8
Green Planet Shares for each ELEVATED THRONE Share exchanged.
1
1.4
Tax
Treatment.
The
exchange described herein is intended to comply with Section 368(a)(1)(B) of
the
Code, and all applicable regulations thereunder. In order to ensure compliance
with said provisions, the parties agree to take whatever steps may be necessary,
including, but not limited to, the amendment of this Agreement.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF GREEN PLANET
GREEN
PLANET hereby represents, warrants and agrees as follows:
Section
2.1
Corporate
Organization
x.
Xxxxx Planet is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and has all requisite corporate power
and
authority to own its properties and assets and to conduct its business as now
conducted and is duly qualified to do business in good standing in each
jurisdiction in which the nature of the business conducted by Green Planet
or
the ownership or leasing of its properties makes such qualification and being
in
good standing necessary, except where the failure to be so qualified and in
good
standing will not have a material adverse effect on the business, operations,
properties, assets, condition or results of operation of Green Planet (a
"Green
Planet Material Adverse Effect");
b.
Copies of the Articles of Incorporation and By-laws of Green Planet, with all
amendments thereto to the date hereof, have been furnished to ELEVATED THRONE
and the ELEVATED THRONE SHAREHOLDERS, and such copies are accurate and complete
as of the date hereof. The minute books of GREEN PLANET are current as required
by law, contain the minutes of all meetings of the Board of Directors and
shareholders of Green Planet from its date of incorporation to the date of
this
Agreement, and adequately reflect all material actions taken by the Board of
Directors and shareholders of Green Planet.
Section
2.2 Capitalization
of Green Planet.
The
authorized capital stock of Green Planet consists of (a) 250,000,000 shares
of
Common Stock, par value $0.001 per share, of which 1,000,000 shares are issued
and outstanding, all of which are duly authorized, validly issued and fully
paid
and the detailed shareholdings of which are more particularly set out in Exhibit
B hereto; and (b) 10,000,000 shares of Preferred Stock, $0.001 par value, of
which no shares are issued or outstanding. The parties agree that they have
been
informed of the issuances of these Green Planet Shares, and that all such
issuances of Green Planet Shares pursuant to this Agreement will be in
accordance with the provisions of this Agreement. All of the Green Planet Shares
to be issued pursuant to this Agreement have been duly authorized and will
be
validly issued, fully paid and non-assessable and no personal liability will
attach to the ownership thereof and in each instance, have been issued in
accordance with the registration requirements of applicable securities laws.
As
of the date of this Agreement there are and as of the Closing Date, there will
be, no outstanding options, warrants, agreements, commitments, conversion
rights, preemptive rights or other rights to subscribe for, purchase or
otherwise acquire any shares of capital stock or any un-issued or treasury
shares of capital stock of Green Planet.
Section
2.3
Subsidiaries
and Equity Investments.
Green
Planet has no subsidiaries or equity interest in any corporation, partnership
or
joint venture.
Section
2.4 Authorization
and Validity of Agreements.
Green
Planet has all corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby and upon the execution and delivery by ELEVATED
THRONE and the ELEVATED THRONE SHAREHOLDERS and the performance of their
obligations herein, will constitute, a legal, valid and binding obligation
of
Green Planet. The execution and delivery of this Agreement by Green Planet
and
the consummation by Green Planet of the transactions contemplated hereby have
been duly authorized by all necessary corporate action of Green Planet, and
no
other corporate proceedings on the part of Green Planet are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby.
2
Section
2.5
No
Conflict or Violation.
The
execution, delivery and performance of this Agreement by Green Planet does
not
and will not violate or conflict with any provision of its Articles of
Incorporation or By-laws, and does not and will not violate any provision of
law, or any order, judgment or decree of any court or other governmental or
regulatory authority, nor violate or result in a breach of or constitute (with
due notice or lapse of time or both) a default under, or give to any other
entity any right of termination, amendment, acceleration or cancellation of,
any
contract, lease, loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which Green Planet is a party or by which
it
is bound or to which any of their respective properties or assets is subject,
nor will it result in the creation or imposition of any lien, charge or
encumbrance of any kind whatsoever upon any of the properties or assets of
Green
Planet, nor will it result in the cancellation, modification, revocation or
suspension of any of the licenses, franchises, permits to which Green Planet
is
bound.
Section
2.6
Consents
and Approvals.
No
consent, waiver, authorization or approval of any governmental or regulatory
authority, domestic or foreign, or of any other person, firm or corporation,
is
required in connection with the execution and delivery of this Agreement by
Green Planet or the performance by Green Planet of its obligations
hereunder.
Section
2.7
Absence
of Certain Changes or Events
. Since
its inception:
x.
Xxxxx Planet has operated in the ordinary course of business
consistent with past practice and there has not been any material adverse change
in the assets, properties, business, operations, prospects, net income or
condition, financial or otherwise of Green Planet. As of the date of this
Agreement, Green Planet does not know or have reason to know of any event,
condition, circumstance or prospective development which threatens or may
threaten to have a material adverse effect on the assets, properties,
operations, prospects, net income or financial condition of Green
Planet;
b.
there has not been any declaration, setting aside or payment of
dividends or distributions with respect to shares of capital stock of Green
Planet or any redemption, purchase or other acquisition of any capital stock
of
Green planet or any other of Green Planet’s securities; and
c.
there has not been an increase in the compensation payable or to
become payable to any director or officer of GREEN PLANET.
Section
2.8
Disclosure.
This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereby by or on behalf of Green Planet in connection with the
transactions contemplated by this Agreement, when taken together, do not contain
any untrue statement of a material fact or omit any material fact necessary
in
order to make the statements contained herein and/or therein not
misleading.
Section
2.9
Litigation.
There
is no action, suit, proceeding or investigation pending or threatened against
the Company or any subsidiary that may affect the validity of this Agreement
or
the right of Green Planet to enter into this Agreement or to consummate the
transactions contemplated hereby.
Section
2.10
Securities
Laws.
Green
Planet has complied in all respects with applicable federal and state securities
laws, rules and regulations, including the Sarbanes Oxley Act of 2002, as such
laws, rules and regulations apply to Green Planet and its securities; and (b)
all shares of capital stock of the Company have been issued in accordance with
applicable federal and state securities laws, rules and regulations. There
are
no stop orders in effect with respect to any of the Company’s
securities.
Section
2.11
Tax
Returns, Payments and Elections.
Green
Planet has timely filed all tax returns, statements, reports, declarations
and
other forms and documents and has, to date, paid all taxes due.
Section
2.12
’34
Act Reports.
None of
Green Planet’s filings with the SEC, contains any untrue statement of a material
face or omits to state a material fact necessary to make the statements therein
not misleading, in light of the circumstances in which they were
made.
3
Section
2.13
Survival.
Each of
the representations and warranties set forth in this Article II shall be deemed
represented and made by Green Planet at the Closing as if made at such time
and
shall survive the Closing for a period terminating on the second anniversary
of
the date of this Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF ELEVATED THRONE AND ELEVATED THRONE
SHAREHOLDERS
ELEVATED
THRONE and each of the ELEVATED THRONE SHAREHOLDERS, severally, represent,
warrant and agree as follows:
Section
3.1
Corporate
Organization.
a.
ELEVATED
THRONE is a corporation with no prior business activities. It is duly organized,
validly existing and in good standing under the laws of the British Virgin
Islands and has all requisite corporate power and authority to own its
properties and assets and to conduct its business as now conducted and is duly
qualified to do business, is in good standing in each jurisdiction wherein
the
nature of the business conducted by ELEVATED THRONE or the ownership or leasing
of its properties makes such qualification and being in good standing necessary,
except where the failure to be so qualified and in good standing will not have
a
material adverse effect on the business, operations, properties, assets,
condition or results of operation of ELEVATED THRONE (a "ELEVATED
THRONE Material Adverse Effect"
). As of
the date of this Agreement, ELEVATED THRONE owns all of the issued and
outstanding equity or voting interests in Fujian Green Planet Bioengineering
Co., Ltd.
(“WFOE”). WFOE is duly organized, validly existing and in good standing under
the laws of the Peoples’ Republic of China (“PRC”) and has all requisite
corporate power and authority to own its properties and assets and to conduct
its business as now conducted and is duly qualified to do business, is in good
standing in each jurisdiction wherein the nature of the business conducted
by
WFOE or the ownership or leasing of its properties makes such qualification
and
being in good standing necessary, except where the failure to be so qualified
and in good standing will not have a material adverse effect on the business,
operations, properties, assets, condition or results of operation of WFOE (a
"WFOE
Material Adverse Effect"
).
b.
Copies
of
the Certificate of Incorporation and By-laws of ELEVATED THRONE and WFOE, with
all amendments thereto to the date hereof, have been furnished to Green Planet,
and such copies are accurate and complete as of the date hereof. The minute
books of ELEVATED THRONE are current as required by law, contain the minutes
of
all meetings of the Board of Directors and Elevated Throne Shareholders of
ELEVATED THRONE, and committees of the Board of Directors of ELEVATED THRONE
from the date of incorporation to the date of this Agreement, and adequately
reflect all material actions taken by the Board of Directors, Elevated Throne
Shareholders and committees of the Board of Directors of ELEVATED
THRONE.
Section
3.2
Capitalization
of ELEVATED THRONE; Title to the ELEVATED THRONE Shares.
On the
Closing Date, immediately before the transactions to be consummated pursuant
to
this Agreement, ELEVATED THRONE shall have authorized 50,000 ELEVATED THRONE
Shares, of which 50,000 ELEVATED THRONE Shares will be issued and outstanding.
The ELEVATED THRONE Shares are the sole outstanding shares of capital stock
of
ELEVATED THRONE, and there are no outstanding options, warrants, agreements,
commitments, conversion rights, preemptive rights or other rights to subscribe
for, purchase or otherwise acquire any shares of capital stock or other equity
or voting interest or any unissued or treasury shares of capital stock of
ELEVATED THRONE. As of the date hereof and on the Closing Date, each SHAREHOLDER
owns and will own the ELEVATED THRONE Shares free and clear of any liens, claims
or encumbrances and has and will have the right to transfer the ELEVATED THRONE
Shares without consent of any other person or entity.
Section
3.3
Subsidiaries
and Equity Investments; Assets.
As of
the date hereof and on the Closing Date, ELEVATED THRONE owns and will own
all
of the equity or voting interests in WFOE. ELEVATED THRONE does not and will
not
directly or indirectly, own any other shares of capital stock or any other
equity interest in any entity or any right to acquire any shares or other equity
interest in any entity and ELEVATED THRONE does not and will not have any assets
or liabilities. As of the date hereof and on Closing Date, WFOE does not and
will not directly or indirectly, own any shares of capital stock or any other
equity interest in any entity or any right to acquire any shares or other equity
interest in any entity. As of the date hereof and on the Closing Date, there
are
and will be no outstanding options, warrants, agreements, commitments,
conversion rights, preemptive rights or other rights to subscribe for, purchase
or otherwise acquire any shares of capital stock or other equity or voting
interest in WFOE.
4
Section
3.4
Authorization
and Validity of Agreements.
ELEVATED THRONE has all corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by ELEVATED THRONE and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action and no other
corporate proceedings on the part of ELEVATED THRONE are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. The
ELEVATED THRONE SHAREHOLDERS have approved this Agreement on behalf of ELEVATED
THRONE and no other stockholder approvals are required to consummate the
transactions contemplated hereby. Each SHAREHOLDER who is a natural person
is
over the age of 21, is competent to execute this Agreement, and has the power
to
execute and perform this Agreement. The execution and delivery of this Agreement
by each SHAREHOLDER which is not a natural person (“Entity Shareholder”) and the
consummation of the transactions contemplated hereby by each Entity Shareholder
have been duly authorized by all necessary action by the Entity Shareholder
and
no other proceedings on the part of ELEVATED THRONE or any SHAREHOLDER are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby.
Section
3.5
No
Conflict or Violation.
The
execution, delivery and performance of this Agreement by ELEVATED THRONE or
any
ELEVATED THRONE SHAREHOLDER does not and will not violate or conflict with
any
provision of the constituent documents of ELEVATED THRONE, and does not and
will
not violate any provision of law, or any order, judgment or decree of any court
or other governmental or regulatory authority, nor violate, result in a breach
of or constitute (with due notice or lapse of time or both) a default under
or
give to any other entity any right of termination, amendment, acceleration
or
cancellation of any contract, lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which ELEVATED
THRONE or any ELEVATED THRONE SHAREHOLDER is a party or by which it is bound
or
to which any of its respective properties or assets is subject, nor result
in
the creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of ELEVATED THRONE or any
ELEVATED THRONE SHAREHOLDER, nor result in the cancellation, modification,
revocation or suspension of any of the licenses, franchises, permits to which
ELEVATED THRONE or any ELEVATED THRONE SHAREHOLDER is bound.
Section
3.6
Investment
Representations.
(a) The
Green Planet Shares will be acquired hereunder solely for the account of the
ELEVATED THRONE SHAREHOLDERS, for investment, and not with a view to the resale
or distribution thereof. Each ELEVATED THRONE SHAREHOLDER understands and is
able to bear any economic risks associated with such ELEVATED THRONE
SHAREHOLDER’S investment in the GREEN PLANET Shares. Each ELEVEATED THRONE
SHAREHOLDER has had full access to all the information such ELEVATED THRONE
SHAREHOLDER considers necessary or appropriate to make an informed investment
decision with respect to the Green Planet Shares to be acquired under this
Agreement. Each ELEVATED THRONE SHAREHOLDER further has had an opportunity
to
ask questions and receive answers from Green Planet’s directors regarding Green
Planet and to obtain additional information (to the extent Green planet’s
directors possessed such information or could acquire it without unreasonable
effort or expense) necessary to verify any information furnished to such
ELEVATED THRONE SHAREHOLDER or to which such ELEVATED THRONE SHAREHOLDER had
access. Each ELEVATED THRONE SHAREHOLDER is at the time of the offer and
execution of this Agreement, domiciled and resident outside the United States
(a
“PRC
Shareholder”
) and is
an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D
promulgated by the Securities and Exchange Commission under the Securities
Act).
(b)
No
PRC Shareholder, nor any affiliate of any PRC Shareholder, nor any person acting
on behalf of any PRC Shareholder or any behalf of any such affiliate, has
engaged or will engage in any activity undertaken for the purpose of, or that
reasonably could be expected to have the effect of, conditioning the markets
in
the United States for the Green Planet Shares, including, but not limited to,
effecting any sale or short sale of securities through any PRC Shareholder
or
any of affiliate of any PRC Shareholder prior to the expiration of any
restricted period contained in Regulation S promulgated under the Securities
Act
(any such activity being defined herein as a “Directed Selling Effort”). To the
best knowledge of each of the PRC Shareholders, this Agreement and the
transactions contemplated herein are not part of a plan or scheme to evade
the
registration provisions of the Securities Act, and the Green Planet Shares
are
being acquired for investment purposes by the PRC Shareholders. Each PRC
Shareholder agrees that all offers and sales of Green Planet Shares from the
date hereof and through the expiration of the any restricted period set forth
in
Rule 903 of Regulation S (as the same may be amended from time to time
hereafter) shall not be made to U.S. Persons or for the account or benefit
of
U.S. Persons and shall otherwise be made in compliance with the provisions
of
Regulation S and any other applicable provisions of the Securities Act. Neither
any PRC Shareholder nor the representatives of any PRC Shareholder have
conducted any Directed Selling Effort as that term is used and defined in Rule
902 of Regulation S and no PRC Shareholder nor any representative of any PRC
Shareholder will engage in any such Directed Selling Effort within the United
States through the expiration of any restricted period set forth in Rule 903
of
Regulation S.
5
Section
3.7
Brokers’
Fees.
No
ELEVATED THRONE SHAREHOLDER has any liability to pay any fees or commissions
or
other consideration to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
Section
3.8
Disclosure.
This
Agreement, the schedules hereto and any certificate attached hereto or delivered
in accordance with the terms hereby by or on behalf of ELEVATED THRONE or the
ELEVATED THRONE SHAREHOLDERS in connection with the transactions contemplated
by
this Agreement, when taken together, do not contain any untrue statement of
a
material fact or omit any material fact necessary in order to make the
statements contained herein and/or therein not misleading.
Section
3.9
Survival.
Each of
the representations and warranties set forth in this Article III shall be deemed
represented and made by ELEVATED THRONE and the ELEVATED THRONE SHAREHOLDERS
at
the Closing as if made at such time and shall survive the Closing for a period
terminating on the second anniversary of the date of this
Agreement.
ARTICLE
IV
COVENANTS
Section
4.1
Certain
Changes and Conduct of Business.
a. |
From
and after the date of this Agreement and until the Closing Date,
Green
Planet shall conduct its business solely in the ordinary course consistent
with past practices and, in a manner consistent with all representations,
warranties or covenants of GREEN PLANET, and without the prior written
consent of ELEVATED THRONE will not, except as required or permitted
pursuant to the terms hereof;
|
i. |
make
any material change in the conduct of its businesses and/or operations
or
enter into any transaction other than in the ordinary course of
business
consistent with past
practices;
|
ii. |
make
any change in its Articles of Incorporation or By-laws; issue any
additional shares of capital stock or equity securities or grant
any
option, warrant or right to acquire any capital stock or equity
securities
or issue any security convertible into or exchangeable for its
capital
stock or alter in any material term of any of its outstanding securities
or make any change in its outstanding shares of capital stock or
its
capitalization, whether by reason of a reclassification, recapitalization,
stock split or combination, exchange or readjustment of shares,
stock
dividend or otherwise;
|
iii. |
A. incur,
assume or guarantee any indebtedness for borrowed money, issue
any notes,
bonds, debentures or other corporate securities or grant any
option,
warrant or right to purchase any thereof, except pursuant to
transactions
in the ordinary course of business consistent with past practices;
or
|
6
B. issue
any securities convertible or exchangeable for debt or equity
securities
of Green Planet;
|
iv. |
make
any sale, assignment, transfer, abandonment or other conveyance
of any of
its assets or any part thereof, except pursuant to transactions
in the
ordinary course of business consistent with past
practice;
|
v. |
subject
any of its assets, or any part thereof, to any lien or suffer such
to be
imposed other than such liens as may arise in the ordinary course
of
business consistent with past practices by operation of law which
will not
have an Green Planet Material Adverse
Effect;
|
vi. |
acquire
any assets, raw materials or properties, or enter into any other
transaction, other than in the ordinary course of business consistent
with
past practices;
|
vii. |
enter
into any new (or amend any existing) employee benefit plan, program
or
arrangement or any new (or amend any existing) employment, severance
or
consulting agreement, grant any general increase in the compensation
of
officers or employees (including any such increase pursuant to
any bonus,
pension, profit-sharing or other plan or commitment) or grant any
increase
in the compensation payable or to become payable to any employee,
except
in accordance with pre-existing contractual provisions or consistent
with
past practices;
|
viii. |
make
or commit to make any material capital
expenditures;
|
ix. |
pay,
loan or advance any amount to, or sell, transfer or lease any properties
or assets to, or enter into any agreement or arrangement with,
any of its
affiliates;
|
x. |
guarantee
any indebtedness for borrowed money or any other obligation of
any other
person;
|
xi. |
fail
to keep in full force and effect insurance comparable in amount
and scope
to coverage maintained by it (or on behalf of it) on the date
hereof;
|
xii. |
take
any other action that would cause any of the representations and
warranties made by it in this Agreement not to remain true and
correct in
all material aspect;
|
xiii. |
make
any material loan, advance or capital contribution to or investment
in any
person;
|
xiv. |
make
any material change in any method of accounting or accounting principle,
method, estimate or practice;
|
xv. |
settle,
release or forgive any claim or litigation or waive any
right;
|
xvi. |
commit
itself to do any of the
foregoing.
|
b. From
and after the date of this Agreement, ELEVATED THRONE will and
ELEVATED
THRONE will cause WFOE
to:
|
1. |
continue
to maintain, in all material respects, its properties in accordance
with
present practices in a condition suitable for its current
use;
|
2. |
file,
when due or required, federal, state, foreign and other tax
returns and
other reports required to be filed and pay when due all taxes,
assessments, fees and other charges lawfully levied or assessed
against
it, unless the validity thereof is contested in good faith
and by
appropriate proceedings diligently
conducted;
|
3. |
continue
to conduct its business in the ordinary course consistent with
past
practices;
|
4. |
keep
its books of account, records and files in the ordinary course
and in
accordance with existing practices;
and
|
7
5. |
continue
to maintain existing business relationships with
suppliers.
|
c. From
and after the date of this Agreement, ELEVATED THRONE will not
and will
ensure that WFOE does
not:
|
xvii. |
make
any material change in the conduct of its businesses and/or
operations or
enter into any transaction other than in the ordinary course
of business
consistent with past
practices;
|
xviii. |
make
any change in its Business License, Bylaws or other governing
documents;
issue any additional shares of capital stock or equity securities
or grant
any option, warrant or right to acquire any capital stock or
equity
securities or issue any security convertible into or exchangeable
for its
capital stock or alter in any material term of any of its outstanding
securities or make any change in its outstanding shares of
capital stock
or its capitalization, whether by reason of a reclassification,
recapitalization, stock split or combination, exchange or readjustment
of
shares, stock dividend or
otherwise;
|
xix. |
A.
incur, assume or guarantee any indebtedness for borrowed money,
issue any
notes, bonds, debentures or other corporate securities or grant
any
option, warrant or right to purchase any thereof, except pursuant
to
transactions in the ordinary course of business consistent
with past
practices; or
B.
issue
any securities convertible or exchangeable for debt or equity
securities
of ELEVATED THRONE or
WFOE;
|
xx. |
make
any sale, assignment, transfer, abandonment or other conveyance
of any of
its assets or any part thereof, except pursuant to transactions
in the
ordinary course of business consistent with past
practice;
|
xxi. |
subject
any of its assets, or any part thereof, to any lien or suffer
such to be
imposed other than such liens as may arise in the ordinary
course of
business consistent with past practices by operation of law
which will not
have an ELEVATED THRONE Material Adverse
Effect;
|
xxii. |
acquire
any assets, raw materials or properties, or enter into any
other
transaction, other than in the ordinary course of business
consistent with
past practices;
|
xxiii. |
enter
into any new (or amend any existing) employee benefit plan,
program or
arrangement or any new (or amend any existing) employment,
severance or
consulting agreement, grant any general increase in the compensation
of
officers or employees (including any such increase pursuant
to any bonus,
pension, profit-sharing or other plan or commitment) or grant
any increase
in the compensation payable or to become payable to any employee,
except
in accordance with pre-existing contractual provisions or consistent
with
past practices;
|
xxiv. |
make
or commit to make any material capital
expenditures;
|
xxv. |
pay,
loan or advance any amount to, or sell, transfer or lease any
properties
or assets to, or enter into any agreement or arrangement with,
any of its
affiliates;
|
8
xxvi. |
guarantee
any indebtedness for borrowed money or any other obligation
of any other
person;
|
xxvii. |
fail
to keep in full force and effect insurance comparable in
amount and scope
to coverage maintained by it (or on behalf of it) on the
date
hereof;
|
xxix. |
take
any other action that would cause any of the representations
and
warranties made by it in this Agreement not to remain true
and correct in
all material
aspect;
|
xxx. |
make
any material loan, advance or capital contribution to or
investment in any
person;
|
xxxi. |
settle,
release or forgive any claim or litigation or waive any
right;
|
xxxii. |
commit
itself to do any of the
foregoing.
|
Section
4.2
Access
to Properties and Records.
ELEVATED THRONE shall afford Green Planet’s accountants, counsel and authorized
representatives, and Green Planet shall afford to ELEVATED THRONE's accountants,
counsel and authorized representatives full access during normal business hours
throughout the period prior to the Closing Date (or the earlier termination
of
this Agreement) to all of such parties’ properties, books, contracts,
commitments and records and, during such period, shall furnish promptly to
the
requesting party all other information concerning the other party's business,
properties and personnel as the requesting party may reasonably request,
provided that no investigation or receipt of information pursuant to this
Section 4.2 shall affect any representation or warranty of or the conditions
to
the obligations of any party.
Section
4.3
Negotiations.
From
and after the date hereof until the earlier of the Closing or the termination
of
this Agreement, no party to this Agreement nor its officers or directors
(subject to such director's fiduciary duties) nor anyone acting on behalf of
any
party or other persons shall, directly or indirectly, encourage, solicit, engage
in discussions or negotiations with, or provide any information to, any person,
firm, or other entity or group concerning any merger, sale of substantial
assets, purchase or sale of shares of capital stock or similar transaction
involving any party. A party shall promptly communicate to any other party
any
inquiries or communications concerning any such transaction which they may
receive or of which they may become aware of.
Section
4.4
Consents
and Approvals.
The
parties shall:
i. |
use
their reasonable commercial efforts to obtain all necessary consents,
waivers, authorizations and approvals of all governmental and regulatory
authorities, domestic and foreign, and of all other persons, firms
or
corporations required in connection with the execution, delivery
and
performance by them of this Agreement;
and
|
ii. |
diligently
assist and cooperate with each party in preparing and filing all
documents
required to be submitted by a party to any governmental or regulatory
authority, domestic or foreign, in connection with such transactions
and
in obtaining any governmental consents, waivers, authorizations
or
approvals which may be required to be obtained connection in with
such
transactions.
|
Section
4.5
Public
Announcement.
Unless
otherwise required by applicable law, the parties hereto shall consult with
each
other before issuing any press release or otherwise making any public statements
with respect to this Agreement and shall not issue any such press release or
make any such public statement prior to such consultation.
9
Section
4.6
Stock
Issuance.
From
and after the date of this Agreement until the Closing Date, none of Green
Planet, ELEVATED THRONE nor WFOE shall issue any additional shares of its
capital stock.
Section
4.7
Notwithstanding anything to the contrary contained herein, it is herewith
understood and agreed that both ELEVATED THRONE and Green Planet may enter
into
and conclude agreements and/or financing transactions as same relate to and/or
are contemplated by any separate written agreements either: (a) annexed hereto
as exhibits; or (b) entered into by Green Planet with ELEVATED THRONE executed
by both parties subsequent to the date hereof. These Agreements shall become,
immediately upon execution, part of this Agreement and subject to all
warranties, representations and conditions contained herein.
ARTICLE
V
CONDITIONS
TO OBLIGATIONS OF ELEVATED THRONE AND ELEVATED THRONE
SHAREHOLDERS
The
obligations of ELEVATED THRONE and the ELEVATED THRONE SHAREHOLDERS to
consummate the transactions contemplated by this Agreement are subject to the
fulfillment, at or before the Closing Date, of the following conditions, any
one
or more of which may be waived by both ELEVATED THRONE and the ELEVATED THRONE
SHAREHOLDERS in their sole discretion:
Section
5.1
Representations
and Warranties of Green Planet.
All
representations and warranties made by GREEN PLANET in this Agreement shall
be
true and correct on and as of the Closing Date as if again made by GREEN PLANET
as of such date.
Section
5.2
Agreements
and Covenants.
Green
Planet shall have performed and complied in all material respects to all
agreements and covenants required by this Agreement to be performed or complied
with by it on or prior to the Closing Date.
Section
5.3
Consents
and Approvals.
Consents, waivers, authorizations and approvals of any governmental or
regulatory authority, domestic or foreign, and of any other person, firm or
corporation, required in connection with the execution, delivery and performance
of this Agreement shall be in full force and effect on the Closing
Date.
Section
5.4
No
Violation of Orders.
No
preliminary or permanent injunction or other order issued by any court or
governmental or regulatory authority, domestic or foreign, nor any statute,
rule, regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects
the
assets, properties, operations, prospects, net income or financial condition
of
Green Planet shall be in effect; and no action or proceeding before any court
or
governmental or regulatory authority, domestic or foreign, shall have been
instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks
to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
Section
5.5
Other
Closing Documents.
ELEVATED THRONE shall have received such other certificates, instruments and
documents in confirmation of the representations and warranties of Green Planet
or in furtherance of the transactions contemplated by this Agreement as ELEVATED
THRONE or its counsel may reasonably request.
10
ARTICLE
VI
CONDITIONS
TO OBLIGATIONS OF GREEN PLANET
The
obligations of Green Planet to consummate the transactions contemplated by
this
Agreement are subject to the fulfillment, at or before the Closing Date, of
the
following conditions, any one or more of which may be waived by GREEN PLANET
in
its sole discretion:
Section
6.1
Representations
and Warranties of ELEVATED THRONE and ELEVATED THRONE
SHAREHOLDERS.
All
representations and warranties made by ELEVATED THRONE and ELEVATED THRONE
SHAREHOLDERS in this Agreement shall be true and correct on and as of the
Closing Date as if again made by ELEVATED THRONE on and as of such
date.
Section
6.2
Agreements
and Covenants.
ELEVATED THRONE and ELEVATED THRONE SHAREHOLDERS shall have performed and
complied in all material respects to all agreements and covenants required
by
this Agreement to be performed or complied with by it on or prior to the Closing
Date.
Section
6.3
Consents
and Approvals.
All
consents, waivers, authorizations and approvals of any governmental or
regulatory authority, domestic or foreign, and of any other person, firm or
corporation, required in connection with the execution, delivery and performance
of this Agreement, shall have been duly obtained and shall be in full force
and
effect on the Closing Date.
Section
6.4
No
Violation of Orders.
No
preliminary or permanent injunction or other order issued by any court or other
governmental or regulatory authority, domestic or foreign, nor any statute,
rule, regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, domestic or foreign, that
declares this Agreement invalid or unenforceable in any respect or which
prevents the consummation of the transactions contemplated hereby, or which
materially and adversely affects the assets, properties, operations, prospects,
net income or financial condition of ELEVATED THRONE or WFOE, taken as a whole,
shall be in effect; and no action or proceeding before any court or government
or regulatory authority, domestic or foreign, shall have been instituted or
threatened by any government or governmental or regulatory authority, domestic
or foreign, or by any other person, or entity which seeks to prevent or delay
the consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement.
Section
6.5
Other
Closing Documents.
Green
Planet shall have received such other certificates, instruments and documents
in
confirmation of the representations and warranties of ELEVATED THRONE or in
furtherance of the transactions contemplated by this Agreement as Green Planet
or its counsel may reasonably request.
ARTICLE
VII
TERMINATION
AND ABANDONMENT
SECTION
7.1
Methods
of Termination.
This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time before the Closing:
a.
By the mutual written consent of ELEVATED THRONE SHAREHOLDERS, ELEVATED THRONE
and Green Planet;
b.
By Green Planet, upon a material breach of any representation,
warranty, covenant or agreement on the part of ELEVATED THRONE or the ELEVATED
THRONE SHAREHOLDERS set forth in this Agreement, or if any representation or
warranty of ELEVATED THRONE or the ELEVATED THRONE SHAREHOLDERS shall become
untrue, in either case such that any of the conditions set forth in Article
VI
hereof would not be satisfied (a "ELEVATED
THRONE Breach"
), and
such breach shall, if capable of cure, has not been cured within ten (10) days
after receipt by the party in breach of a notice from the non-breaching party
setting forth in detail the nature of such breach;
11
c.
By ELEVATED THRONE, upon a material breach of any representation,
warranty, covenant or agreement on the part of Green Planet set forth in this
Agreement, or, if any representation or warranty of GREEN PLANET shall become
untrue, in either case such that any of the conditions set forth in Article
V
hereof would not be satisfied (a "Green
Planet Breach"
), and
such breach shall, if capable of cure, not have been cured within ten (10)
days
after receipt by the party in breach of a written notice from the non-breaching
party setting forth in detail the nature of such breach;
d.
By either Green Planet or ELEVATED THRONE, if the Closing shall not
have consummated before ninety (90) days after the date hereof; provided,
however, that this Agreement may be extended by written notice of either
ELEVATED THRONE or Green Planet, if the Closing shall not have been consummated
as a result of GREEN PLANET or ELEVATED THRONE having failed to receive all
required regulatory approvals or consents with respect to this transaction
or as
the result of the entering of an order as described in this Agreement; and
further provided, however, that the right to terminate this Agreement under
this
Section 7.1(d) shall not be available to any party whose failure to fulfill
any
obligations under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before this date.
e.
By either ELEVATED THRONE or Green Planet if a court of competent
jurisdiction or governmental, regulatory or administrative agency or commission
shall have issued an order, decree or ruling or taken any other action (which
order, decree or ruling the parties hereto shall use its best efforts to lift),
which permanently restrains, enjoins or otherwise prohibits the transactions
contemplated by this Agreement.
Section
7.2
Procedure
Upon Termination.
In the
event of termination and abandonment of this Agreement by ELEVATED THRONE or
Green Planet pursuant to Section 7.1, written notice thereof shall forthwith
be
given to the other parties and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned, without further action.
If
this Agreement is terminated as provided herein, no party to this Agreement
shall have any liability or further obligation to any other party to this
Agreement; provided, however, that no termination of this Agreement pursuant
to
this Article VII shall relieve any party of liability for a breach of any
provision of this Agreement occurring before such termination.
ARTICLE
VIII
POST-CLOSING
AGREEMENTS
Section
8.1
Consistency
in Reporting.
Each
party hereto agrees that if the characterization of any transaction contemplated
in this agreement or any ancillary or collateral transaction is challenged,
each
party hereto will testify, affirm and ratify that the characterization
contemplated in such agreement was the characterization intended by the party;
provided, however, that nothing herein shall be construed as giving rise to
any
obligation if the reporting position is determined to be incorrect by final
decision of a court of competent jurisdiction.
12
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
9.1
Survival
of Provisions.
The
respective representations, warranties, covenants and agreements of each of
the
parties to this Agreement (except covenants and agreements which are expressly
required to be performed and are performed in full on or before the Closing
Date) shall survive the Closing Date and the consummation of the transactions
contemplated by this Agreement, subject to Sections 2.13, 3.9 and 9.1. In the
event of a breach of any of such representations, warranties or covenants,
the
party to whom such representations, warranties or covenants have been made
shall
have all rights and remedies for such breach available to it under the
provisions of this Agreement or otherwise, whether at law or in equity,
regardless of any disclosure to, or investigation made by or on behalf of such
party on or before the Closing Date. Notwithstanding the foregoing, each party’s
liability to the other for breach of any representation, warranty or covenant
shall not exceed, in the aggregate, $500,000.
Section
9.2
Publicity.
No
party shall cause the publication of any press release or other announcement
with respect to this Agreement or the transactions contemplated hereby without
the consent of the other parties, unless a press release or announcement is
required by law. If any such announcement or other disclosure is required by
law, the disclosing party agrees to give the non-disclosing parties prior notice
and an opportunity to comment on the proposed disclosure.
Section
9.3
Successors
and Assigns.
This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors and assigns; provided, however, that no party
shall assign or delegate any of the obligations created under this Agreement
without the prior written consent of the other parties.
Section
9.4
Fees
and Expenses.
Except
as otherwise expressly provided in this Agreement, all legal and other fees,
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
fees,
costs or expenses.
Section
9.5
Notices.
All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been given or made if in writing and
delivered personally or sent by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following
addresses:
If
to
ELEVATED THRONE or the ELEVATED THRONE SHAREHOLDERS, to:
Mr.
Xxx
Xxxx
00000
XX
00xx
Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xx 00000, XXX
with
a
copy to:
Sanming
Huajian Bio-Engineering Co., Ltd.
Att:
Mr.
Xxx Xxxx
Xx.000
Xxxxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxx, Xxxxx
If
to
Green Planet, to:
00000
XX
00xx
Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xx 00000, XXX
with
a
copy to:
Xxxxxx
X.
Xxxxxx
Attorney
at Law
XXXXXXXX
& XXXX LLP
000
Xxxxx
Xxxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Phone:
000.000.0000
Fax:
000.000.0000
13
or
to
such other persons or at such other addresses as shall be furnished by any
party
by like notice to the others, and such notice or communication shall be deemed
to have been given or made as of the date so delivered or mailed. No change
in
any of such addresses shall be effective insofar as notices under this Section
9.5 are concerned unless such changed address is located in the United States
of
America and notice of such change shall have been given to such other party
hereto as provided in this Section 9.5
Section
9.6
Entire
Agreement.
This
Agreement, together with the exhibits hereto, represents the entire agreement
and understanding of the parties with reference to the transactions set forth
herein and no representations or warranties have been made in connection with
this Agreement other than those expressly set forth herein or in the exhibits,
certificates and other documents delivered in accordance herewith. This
Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating
to
the subject matter of this Agreement and all prior drafts of this Agreement,
all
of which are merged into this Agreement. No prior drafts of this Agreement
and
no words or phrases from any such prior drafts shall be admissible into evidence
in any action or suit involving this Agreement.
Section
9.7 Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible so as to
be
valid and enforceable.
Section
9.8
Titles
and Headings.
The
Article and Section headings contained in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation
of
this Agreement or of any term or provision hereof.
Section
9.9
Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original and all of which together shall be considered one and
the
same agreement.
Section
9.10
Convenience
of Forum; Consent to Jurisdiction.
The
parties to this Agreement, acting for themselves and for their respective
successors and assigns, without regard to domicile, citizenship or residence,
hereby expressly and irrevocably elect as the sole judicial forum for the
adjudication of any matters arising under or in connection with this Agreement,
and consent and subject themselves to the jurisdiction of, the courts of the
State of New York located in County of New York, and/or the United States
District Court for the Southern District of New York, in respect of any matter
arising under this Agreement. Service of process, notices and demands of such
courts may be made upon any party to this Agreement by personal service at
any
place where it may be found or giving notice to such party as provided in
Section 9.5.
Section
9.11
Enforcement
of the Agreement.
The
parties hereto agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches
of
this Agreement and to enforce specifically the terms and provisions hereto,
this
being in addition to any other remedy to which they are entitled at law or
in
equity.
Section
9.12
Governing
Law.
This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the State of New York without giving effect to the choice of law
provisions thereof.
Section
9.13
Amendments
and Waivers.
No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the parties hereto.. No waiver by
any
party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
14
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
|
|
|
|
|
||||
|
|
|
||||||
|
|
|
|
|
||||
By:
Xxxx Xxxxx
|
|
|
||||||
|
|
|
||||||
Title:
President
|
|
|
||||||
|
|
|
|
|
||||
Green
Planet Bioengineering Co. Ltd.
|
|
|
|
|||||
|
|
|
|
|
||||
By:
|
Mr.
Xxx Xxxx
|
|
||||||
Title:
CEO
|
|
|
Elevated
Throne Overseas Ltd.
|
|
|
|
||||
ELEVATED
THRONE SHAREHOLDERS:
|
|
|
|
||||
|
|
|
|
||||
/s/
Mr. Xxx Xxxx
|
|
|
|||||
|
|
||||||
|
|
|
|
||||
/s/
Ms. Min Xxx Xxxx
|
|
|
15
EXHIBIT
A
Name
|
|
Number
of ELEVATED THRONE Shares
|
|
Number
of Green Planet Shares
|
of
SHAREHOLDER
|
|
Being
Exchanged
|
|
to
be Received
|
|
|
|
|
|
Mr.
Xxx Xxxx
|
|
28,500
|
|
8,060,750
|
Ms.
Min Xxx Xxxx
|
21,500
|
6,080,917
|
16
Exhibit
B
Green
planet Shareholders
|
|
Number
of Shares of
Common
Stock
|
|
|
|
|
|
|
|
Xxxx
Xxxxx
|
935,000
shares
|
|
||
|
||||
Mondo
Management Corp.
|
65,000
shares
|
|
17