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SHARE PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 6th day of March, 2007
AMONG:
GS AGRIFUELS CORPORATION, a company formed pursuant to the laws of the
State of Delaware and having an office for business located at Xxx
Xxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("Purchaser")
AND:
______________, with an address located at _________("Seller")
WHEREAS:
A. Seller owns _____________________________________ (___________________)
shares of the common stock of Sustainable Systems, Inc. ("Sustainable"),
corresponding to ___________% of the fully diluted capital stock of such
corporation (the "Acquisition Shares");
B. Purchaser desires to purchase and acquire and Seller desires to sell,
convey, assign and transfer, or cause to be sold, conveyed, assigned and
transferred, to Purchaser, the Acquisition Shares pursuant to this
Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the
premises and the mutual covenants, agreements, representations and
warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
THE ACQUISITION
Section 1.1 Purchase and Sale of Acquisition Shares
Seller hereby agrees to sell to Purchaser the Acquisition Shares in exchange for
the payment of the Purchase Price on the Closing Date and to transfer to
Purchaser on the Closing Date a 100% undivided interest in and to the
Acquisition Shares free from all liens, mortgages, charges, pledges,
encumbrances or other burdens with all rights now or thereafter attached
thereto, except as otherwise referred to herein.
Section 1.2 The Purchase Price
In consideration for the Acquisition Shares, Purchaser agrees to pay and issue
to Seller
(a) ____________________________________________________($_______________)
in the form of immediately available U.S. funds (the "Cash") payable
upon Closing,
(b) _________________________________________________________
($______________) in the form of a secured convertible debenture
payable in the form of immediately available U.S. funds within THIRTY
(30) days of the completion and commissioning of Sustainable's crush
plant expansion (the "Expansion Debenture"),
(c) _________________________________________________________________
($___________________) in the form of shares of Purchaser common stock
at the rate of FOUR DOLLARS AND FIFTY CENTS ($4.50) per share, for a
total of ________________________________________________________
(_________________) shares (the "Purchaser Shares"), and
(d) ______________________________________________________________
($_____________) on the FIRST (1st) anniversary of the Closing Date
and _________________________________________
($________________________) on the SECOND (2nd) anniversary of the
Closing Date in the form of secured convertible debentures (the "Term
Debentures") convertible into Purchaser common stock;
which amounts shall be collectively referred to herein as the "Purchase Price."
Section 1.3 The Expansion
The Expansion shall be deemed to be "complete" when the construction of all
equipment and infrastructure required for the solvent extraction of oil from
targeted feedstocks is installed, fully permitted and fully operational; the
"commissioning" of the Expansion shall be deemed to have occurred after FOURTEEN
(14) days of regular, safe, compliant operations. Purchaser hereby covenants and
agrees to provide any necessary capital and other resources to Sustainable that
may be required to complete and fully commission the Expansion. The timeline,
budget and funding for the Expansion shall be as agreed upon between Purchaser
and the former executive management of Sustainable within THIRTY (30) days of
the execution hereof.
Section 1.4 Registration Rights
The Seller shall be entitled to "piggy-back" registration rights such that
Purchaser shall register any shares issuable to Seller hereunder or upon
conversion of the Expansion Debenture and/or the Term Debentures (the "Purchaser
Shares") upon its filing of any registration statement on any other transaction
completed by Purchaser which may require registration. In the event that the
Seller elects to transfer any Purchaser Shares pursuant to Rule 144 of the
Securities Act of 1933 (the "Act") or other applicable exemption from
registration, Purchaser shall meet and maintain the requirements of Rule 144 of
the Act, so that the Purchaser Shares may be sold in public securities markets
under Rule 144.
ARTICLE II
THE CLOSING
Section 2.1 Closing
The consummation of the transactions contemplated by this Agreement (the
"Closing") shall take place on or about March 6, 2007, at Purchaser's place of
business (the date of the Closing being herein referred to as the "Closing
Date").
Section 2.2 Deliveries at Closing
(a) At the Closing, the Seller shall deliver to the Purchaser: (i) duly executed
instruments or other evidence to transfer to Purchaser the Acquisition Shares,
and (ii) any documents or certificates that are necessary to transfer to
Purchaser good, clear and marketable title all of the Acquisition Shares.
(b) At the Closing, the Purchaser shall deliver to the Seller: (i) the Cash in
immediately available U.S. funds, (ii) share certificates representing the
Purchaser Shares duly issued in the name of Seller, (iii) the Debentures duly
issued in the name of Seller, and (iv) all documents required to be delivered by
Purchaser to Seller at or prior to the Closing Date in connection with this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser represents and warrants that as of the date hereof and as of the
Closing Date, the following representations shall be true and correct and in
full force and effect:
Section 3.1 Organization and Good Standing
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Purchaser is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
where qualification as a foreign corporation or otherwise is required to conduct
its business.
Section 3.2 Authority, Approvals and Consents
Purchaser has the corporate power and authority to enter into this Agreement and
to perform its obligations hereunder. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized and validly approved by the Board of Directors of Purchaser
and by their respective stockholders if necessary and no other corporate or
other proceedings on the part of Purchaser are necessary to authorize and
approve this Agreement and the transactions contemplated hereby. Purchaser
hereby expressly represents that it has fully and properly complied with all
aspects of applicable Delaware corporate law in entering into this Agreement and
for consummating the transactions contemplated hereunder. This Agreement has
been duly executed and delivered by, and constitutes a valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms.
Section 3.3 Consents and Approvals
No consent, approval, or authorization of, or declaration, filing, or
registration with, any Governmental Entity will be required to be made or
obtained by Purchaser in connection with the execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
Section 3.4 No Violations
Neither the execution, delivery, or performance of this Agreement by Purchaser,
nor the consummation by Purchaser of the transactions contemplated hereby, nor
compliance by Purchaser with any of the provisions hereof will (a) conflict with
or result in any breach of any provisions of the certificate of incorporation or
bylaws of the Purchaser, (b) result in a violation, or breach of, or constitute
(with or without due notice or lapse of time) a default (or give rise to any
right of termination, cancellation, vesting, payment, exercise, acceleration,
suspension or revocation) under any of the terms, conditions or provisions of
any contract, agreement or any material note, bond, mortgage, deed of trust,
security interest, indenture, license, contract, agreement, plan or other
instrument or obligation to which Purchaser is a party or (c) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to Purchaser,
except in the case of clauses (b) or (c) for violations, breaches, defaults,
terminations, cancellations, accelerations, creations, impositions, suspensions
or revocations that would not be reasonably likely to have a material adverse
effect.
Section 3.5 Binding Nature
This Agreement shall be, when duly executed and delivered, a legally binding
obligation of the Purchaser enforceable in accordance with its terms.
Section 3.6 Non-Merger and Survival
The representations and warranties of Purchaser contained herein will be true at
and as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation or
warranty) or any investigation made by Seller, the representations and
warranties of Purchaser shall survive the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants that as of the date hereof and as of the Closing
Date, the following representations shall be true and correct and in full force
and effect:
Section 4.1 Authority, Approvals and Consents
Seller has the power and authority to enter into this Agreement and to perform
Seller's obligations hereunder. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized and validly approved by the board of directors of Sustainable
Systems, Inc. and by the stockholders of such company, and, if applicable, the
governing bodies of Seller, and no other corporate or other proceedings on the
part of Seller are necessary to authorize and approve this Agreement and the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by, and constitutes a valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except as may be
limited by laws affecting bankruptcy, insolvency and creditors' rights and
equitable remedies and jurisdiction under general and corporate law.
Section 4.2 Consents and Approvals
No consent, approval, or authorization of, or declaration, filing, or
registration with, any Governmental Entity will be required to be made or
obtained by Seller in connection with the execution, delivery, and performance
of this Agreement and the consummation of the transactions contemplated hereby,
save such, if any, as might be applicable in respect of any matter referenced
herein.
Section 4.3 No Violations
Neither the execution, delivery, or performance of this Agreement by Seller, nor
the consummation by Seller of the transactions contemplated hereby, nor
compliance by Seller with any of the provisions hereof will (a) conflict with or
result in any breach of any provisions of the certificate of incorporation or
bylaws of the Seller (if applicable), (b) result in a violation, or breach of,
or constitute (with or without due notice or lapse of time) a default (or give
rise to any right of termination, cancellation, vesting, payment, exercise,
acceleration, suspension or revocation) under any of the terms, conditions or
provisions of any contract, agreement or any material note, bond, mortgage, deed
of trust, security interest, indenture, license, contract, agreement, plan or
other instrument or obligation to which Seller is a party or (c) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
Seller other than as referenced herein, except in the case of clauses (b) or (c)
for violations, breaches, defaults, terminations, cancellations, accelerations,
creations, impositions, suspensions or revocations that would not be reasonably
likely to have a material adverse effect.
Section 4.4 Binding Nature
This Agreement shall be, when duly executed and delivered, a legally binding
obligation of Seller enforceable in accordance with its terms, except as may be
limited by laws affecting bankruptcy, insolvency and creditors' rights and
equitable remedies under general and corporate law. Section 4.5 Non-Merger and
Survival
The representations and warranties of Seller contained herein will be true at
and as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation or
warranty) or any investigation made by Purchaser, the representations and
warranties of Seller shall survive the Closing.
ARTICLE V
GENERAL PROVISIONS
Section 5.1 Expenses
Each of the Parties hereto shall pay its own fees and expenses (including the
fees of any attorneys, accountants, or others engaged by such Party) in
connection with this Agreement and the transactions contemplated hereby whether
or not the transactions contemplated hereby are consummated.
Section 5.2 Paragraph Headings and Language Interpretations
The paragraph headings contained herein are for reference only and shall not be
considered substantive provisions of this Agreement. The use of a singular or
plural form shall include the other form, and the use of a masculine, feminine
or neuter gender shall include the other genders, as applicable.
Section 5.3 Notices
All notices, claims, demands, and other communications hereunder shall be in
writing and shall be deemed given upon (a) confirmation of receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight carrier
or when delivered by hand, or (c) the expiration of five (5) business days after
the day when mailed by registered or certified mail (postage prepaid, return
receipt requested), addressed to the respective parties at the following
addresses (or such other address for a party as shall be specified by like
notice):
(a) If to the Purchaser, to:
GS AgriFuels Corporation
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxxxx, Chief Executive Officer
and,
(b) If to Seller, to:
[NAME]
[ADDRESS]
[ADDRESS]
Section 5.4 Assignments
This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of the Parties hereto and their respective successors and
permitted assigns; provided, however, that neither this Agreement nor any of the
rights, interests, or obligations hereunder may be assigned by any of the
Parties hereto without the prior written consent of the other Party. Purchaser
agrees that any such assignment shall not relieve Purchaser of its obligations
hereunder.
Section 5.5 Entire Agreement
This Agreement, the Expansion Debenture, the Term Debentures, the Security
Agreement and the Pledge Agreement (collectively, the "Transaction Documents")
embody the entire agreement and understanding of the Parties with respect to the
subject matter hereof and supersedes all prior written or oral commitments,
arrangements, understandings and agreements with respect thereto. There are no
restrictions, agreements, promises, warranties, covenants or undertakings with
respect to the transactions contemplated hereby other than those expressly sat
forth herein.
Section 5.6 Modifications, Amendments and Waivers
At any time prior to the Closing, to the extent permitted by law, (i) Purchaser
and Seller may, by written agreement, modify, amend or supplement any term or
provision of this Agreement and (ii) any term or provision of this Agreement may
be waived in writing by the Party which is entitled to the benefits thereof.
Section 5.7 Counterparts
This Agreement may be executed in two (2) or more counterparts, all of which
shall be considered one (1) and the same agreement and each of which shall be
deemed an original. Each Party shall receive a fully signed copy of this
Agreement.
Section 5.8 Governing Law
This Agreement shall be governed by the laws of the State of New York and the
United States of America (regardless of the laws that might be applicable under
principles of conflicts of law or international law) as to all matters
including, but not limited to, matters of validity, construction, effect and
performance.
Section 5.9 Accounting Terms
All accounting terms used herein which are not expressly defined in this
Agreement shall have the respective meanings given to them in accordance with
generally accepted accounting principles on the date hereof.
Section 5.10 Severability
If any one (1) or more of provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remaining provisions of this Agreement shall not be affected thereby. To the
extent permitted by applicable law, each party waives any provision of law which
renders any provision of this Agreement invalid, illegal or unenforceable in any
respect.
Section 5.11 Consent to Jurisdiction
The Parties hereto hereby submit and consent to the exclusive venue and
jurisdiction of the Supreme Court of the State of New York, in respect of the
interpretation and enforcement of the provisions of this Agreement, and hereby
waive and agree not to assert as a defense in any action, suit or proceeding for
the interpretation or enforcement of this Agreement, that it is not subject
thereto or that such action, suit or proceeding may not be brought or is not
maintainable in said courts or that this Agreement may not be enforced in or by
said courts or that its property is exempt or immune from execution, that the
suit, action or proceeding is brought in an inconvenient forum, or that the
venue of the suit, action or proceeding is improper. The Parties hereto agree
that service of process may be made in any manner permitted by the laws of the
State of New York or the federal laws of the United States in any such action,
suit or proceeding against the Parties hereto with respect to this Agreement.
Service of process upon such authorized agent shall be deemed,in every respect,
effective service of process upon the Parties hereto and shall remain effective
until the Parties hereto shall appoint another agent for service or process
acceptable to the other Party. The Parties hereto agree that final judgment
(with all right of appeal having expired or been waived) against it in any such
action, suit or proceeding shall be conclusive and that the other Party is
entitled to enforce such judgment in any other jurisdiction by suit on the
judgment, a certified copy of which shall be conclusive evidence of the fact and
amount of indebtedness arising from such judgment.
Section 5.12 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, successors, legal representatives and
assigns.
Section 5.13 Force Majeure
Neither Party hereto shall be liable for failure to perform any obligation under
this Agreement if such failure to perform is caused by the occurrence of any
contingency beyond the reasonable control of such Party, including, without
limitation, fire, flood, strike or other industrial disturbance, failure of
transport, accident, war, riot, insurrection, act of God or order of
governmental agency or act of terrorism. Performance shall be resumed as soon as
is possible after cessation of such cause. However, if such inability to perform
continues for more than Ninety (90) days, the other Party may terminate this
Agreement without penalty and without further notice.
IN WITNESS WHEREOF the parties have executed this Agreement effective as of the
day and year first above written.
GS AGRIFUELS CORPORATION
By: __________________________
Xxx Xxxxxxxxxx
President and Chief Executive Officer
[SELLER NAME]
By: __________________________
[SELLER NAME]
Individually
STOCK ASSIGNMENT
FOR VALUE RECEIVED, the undersigned, ___________________________________, does
hereby sell, assign and transfer unto GS AGRIFUELS CORPORATION,
_________________________________________ (______________________________)
shares of the common stock of Sustainable Systems, Inc. (the "Acquisition
Shares"), standing in my name on the books of said corporation and do hereby
irrevocably constitute and appoint GS AGRIFUELS CORPORATION attorney to transfer
the said stock on the books of the within corporation with full power of
substitution in the premises.
Dated as of this 6th day of March, 2007
--------------------------
[ENTER SELLER]
Individually
