STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE by and among EQUITY VENTURES GROUP, INC. a Florida Corporation and GHG TRADING PLATFORMS, INC. a Nevada Corporation and The Shareholders of GHG Trading Platforms, Inc. effective as of March 25, 2009
Exhibit 10.1
by
and among
a Florida
Corporation
and
GHG
TRADING PLATFORMS, INC.
a Nevada
Corporation
and
The
Shareholders of GHG Trading Platforms, Inc.
effective
as of March 25, 2009
THIS STOCK PURCHASE AGREEMENT AND
SHARE EXCHANGE, made and entered into this 25th day of
March, 2009 (the “Agreement”), by and
among Equity Ventures Group, Inc. (“EVG”), a Florida
corporation with its principle places of business at 0000 X. Xxx Xxxx Xxxx., Xxx
0000, Xxxx Xxxxxxxxxx, XX 00000; GHG Trading Platforms, Inc., a Nevada
corporation (“GHG”) with its
principal executive offices at 000 Xxxxxx Xxx., #000, Xxx Xxxxx, XX 00000, and
the shareholders of GHG named on the Annex 1 of this Agreement (individually, a
“GHG
Stockholder”, and collectively, the “GHG
Stockholders”).
Premises
WHEREAS, EVG is a reporting company
under Section 12(g) of the Securities and Exchange Act of 1934, organized under
the laws of the State of Florida with no significant operations, while GHG is a
private, non-reporting company incorporated under the laws of
Nevada;
WHEREAS,
EVG desires to acquire from the GHG Shareholders, and the GHG Shareholders
desire to sell to EVG, 100% of the outstanding shares of GHG in exchange for the
issuance by EVG of an aggregate number of shares equal to 90% of the
post-transaction shares of EVG common stock (the “Common Stock”) to the
GHG Shareholders on the terms and conditions set forth herein (the “Share
Exchange”).
WHEREAS,
after giving effect to the Share Exchange, GHG shall become a wholly owned
subsidiary of EVG;
WHEREAS, the boards of directors of GHG
and EVG have determined, subject to the terms and conditions set forth in this
Agreement, that the transaction contemplated hereby is desirable and in the best
interests of their stockholders, respectively. This Agreement is
being entered into for the purpose of setting forth the terms and conditions of
the proposed acquisition.
Agreement
NOW, THEREFORE, on the stated premises
and for and in consideration of the mutual covenants and agreements hereinafter
set forth and the mutual benefits to the parties to be derived here from, it is
hereby agreed as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
GHG
TRADING PLATFORMS, INC.
As an inducement to and to obtain the
reliance of EVG, GHG represents and warrants as of the date hereof and reaffirms
on the Closing Date as follows:
2
Section 1.1 Organization. GHG
is a corporation duly organized, validly existing, and in good standing under
the State of Nevada and has the corporate power and is duly authorized,
qualified, franchised and licensed under all applicable laws, regulations,
ordinances and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign corporation in
the jurisdiction in which the character and location of the assets owned by it
or the nature of the business transacted by it requires
qualification. Included in the Schedules attached hereto (hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not violate any provision of GHG's articles of incorporation or
bylaws. GHG has full power, authority and legal right and has taken
all action required by law, its articles of incorporation, its bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
Section 1.2 Capitalization. The
authorized capitalization of GHG consists of 50,000,000 Common Shares, $.001 par
value per share and 0 Preferred Shares. As of the date hereof, GHG
shall have 8,099,750 shares of common stock outstanding.
All issued and outstanding shares are
legally issued, fully paid and nonassessable and are not issued in violation of
the preemptive or other rights of any person. GHG has no securities,
warrants or options authorized or issued.
Section 1.3 Subsidiaries. GHG
has no subsidiaries.
Section
1.4 Financial
Statements.
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(a)
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On
the Closing Date, GHG shall include in the Schedules the audited balance
sheets of GHG as of December 31, 2008 and 2007 and the related audited
statements of operations, stockholders’ equity and cash flows for the
fiscal years ended December 31, 2008 and 2007 together with the notes to
such statements and the opinion of an independent certified public
accountant.
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(b)
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All
such financial statements shall have been prepared in accordance with
generally accepted accounting principles (“GAAP”) consistently applied
throughout the periods involved. The GHG balance sheets are true and
accurate and present fairly as of their respective dates the financial
condition of GHG. As of the date of such balance sheets, except
as and to the extent reflected or reserved against therein, GHG had no
liabilities or obligations (absolute or contingent) which should be
reflected in the balance sheets or the notes thereto prepared in
accordance with GAAP, and all assets reflected therein are properly
reported and present fairly the value of the assets of GHG, in accordance
with GAAP. The statements of operations, stockholders’ equity and cash
flows reflect fairly the information required to be set forth therein by
generally accepted accounting
principles.
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Section
1.5 Tax
Matters: Books and Records.
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(a) The
books and records, financial and others, of GHG are in all material
respects complete and correct and have been maintained in accordance with
good business accounting practices;
and
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(b) GHG
has no liabilities with respect to the payment of any country, federal,
state, county, or local taxes (including any deficiencies, interest or
penalties).
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(c) GHG
shall remain responsible for all debts incurred by GHG prior to the date
of closing.
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Section
1.6 Litigation and
Proceedings. There are no actions, suits, proceedings or
investigations pending or threatened by or against or affecting GHG or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign or before any arbitrator of any kind
that would have a material adverse affect on the business, operations, financial
condition or income of GHG. GHG is not in default with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section
1.7 Material Contract
Defaults. GHG is not in default in any material
respect under the terms of any outstanding contract, agreement, lease or other
commitment which is material to the business, operations, properties, assets or
condition of GHG, and there is no event of default in any material respect under
any such contract, agreement, lease or other commitment in respect of which GHG
has not taken adequate steps to prevent such a default from
occurring.
Section
1.8 Information. The
information concerning GHG as set forth in this Agreement and in the attached
Schedules is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made in light of the circumstances under which
they were made, not misleading.
Section
1.9 Title and Related
Matters. GHG has good and marketable title to and is the sole
and exclusive owner of all of its properties, inventory, interest in properties
and assets, real and personal (collectively, the “Assets”) free and clear of all
liens, pledges, charges or encumbrances. GHG owns free and clear of
any liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized in
connection with GHG business. No third party has any right to,
and GHG has not received any notice of infringement of or conflict with asserted
rights of other with respect to any product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names or
copyrights which, singly on in the aggregate, if the subject of an unfavorable
decision ruling or finding, would have a materially adverse affect on the
business, operations, financial conditions or income of GHG or any material
portion of its properties, assets or rights.
Section
1.10 Compliance With Laws and
Regulations. To the best of GHG’s knowledge and
belief, GHG has complied with all applicable statutes and regulations of any
federal, state or other governmental entity or agency thereof, except to the
extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of GHG or would not result
in GHG incurring material liability.
4
Section
1.11 Insurance. All
of the insurable properties of GHG are insured for GHG‘s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage and
will be outstanding and in full force at the Closing Date.
Section
1.12 Approval of
Agreement. On the Closing Date, the board of
directors and majority shareholders of GHG shall have authorized the execution
and delivery of the Agreement by and have approved the transactions contemplated
hereby.
Section
1.13 Material Transactions or
Affiliations. Except as set forth in Exhibit B, as
attached hereto. There are no material contracts or agreements of arrangement
between GHG and any person, who was at the time of such contract, agreement or
arrangement an officer, director or person owning of record, or known to
beneficially own ten percent (10%) or more of the issued and outstanding Common
Shares of GHG and which is to be performed in whole or in part after the date
hereof. GHG has no commitment, whether written or oral, to lend any
funds to, borrow any money from or enter into material transactions with any
such affiliated person.
Section
1.14 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which GHG is a party or to which any of its
properties or operations are subject.
Section
1.15 Governmental
Authorizations. GHG has all licenses, franchises, permits or
other governmental authorizations legally required to enable it to conduct its
business in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
GHG of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
As an inducement to, and to obtain the
reliance of GHG, EVG represents and warrants as of the date hereof and reaffirms
on the Closing Date as follows:
Section
2.1 Organization. EVG
is a corporation duly organized, validly existing and in good standing under the
laws of Florida and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign entity in the country or
states in which the character and location of the assets owned by it or the
nature of the business transacted by it requires
qualification. Included in the Attached Schedules (as hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of EVG's certificate of incorporation or
bylaws. EVG has full power, authority and legal right and has taken
all action required by law, its articles of incorporation, bylaws or otherwise
to authorize the execution and delivery of this Agreement.
5
Section
2.2 Capitalization. The
authorized Capitalization of EVG consists of 100,000,000 Common Shares, $0.001
par value per share and 10,000,000 Preferred Shares, par value
$0.001. As of the date hereof there are 974,000 common shares
outstanding. As of the Closing Date there will be 809,000 shares
outstanding.
All issued and outstanding common
shares have been legally issued, fully paid, are nonassessable and not issued in
violation of the preemptive rights of any other person. EVG has no
other securities, warrants or options authorized or issued.
Section
2.3 Subsidiaries. EVG
has no subsidiaries.
Section
2.4 Financial
Statements.
EVG has
delivered to GHG and the GHG Shareholders its audited financial statements for
the year ended December 31, 2008 (the “EVG Financial
Statements”). The EVG Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated. The EVG Financial Statements
fairly present in all material respects the financial condition and operating
results of EVG, as of the dates, and for the periods, indicated
therein. EVG does not have any material liabilities or obligations,
contingent or otherwise, other than (a) liabilities incurred in the
ordinary course of business subsequent to December 31, 2008, and
(b) obligations under contracts and commitments incurred in the ordinary
course of business and not required under generally accepted accounting
principles to be reflected in the EVG Financial Statements, which, in both
cases, individually and in the aggregate, would not be reasonably expected to
result in a Material Adverse Effect.
Section
2.5
Tax Matters; Books & Records
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(a) The
books and records, financial and others, of EVG are in all material
respects complete and correct and have been maintained in accordance with
good business accounting practices;
and
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(b) EVG
has no liabilities with respect to the payment of any country, federal,
state, county, local or other taxes (including any deficiencies, interest
or penalties).
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(c) EVG
shall remain responsible for all debts incurred prior to the
closing.
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Section
2.6 Information. The
information concerning EVG as set forth in this Agreement and in the attached
Schedules is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading.
6
Section
2.7 Title and Related
Matters. EVG has good and marketable title to and is the
sole and exclusive owner of all of its properties, inventory, interests in
properties and assets, real and personal (collectively, the "Assets") free and
clear of all liens, pledges, charges or encumbrances. Except as set
forth in the Schedules attached hereto, EVG owns free and clear of any liens,
claims, encumbrances, royalty interests or other restrictions or limitations of
any nature whatsoever and all procedures, techniques, marketing plans, business
plans, methods of management or other information utilized in connection with
EVG's business. Except as set forth in the attached Schedules, no
third party has any right to, and EVG has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, proprietary techniques,
trademarks, service marks, trade names or copyrights which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a materially adverse affect on the business, operations, financial
conditions or income of EVG or any material portion of its properties, assets or
rights.
Section
2.8 Litigation and
Proceedings. There are no actions, suits or proceedings
pending or threatened by or against or affecting EVG, at law or in equity,
before any court or other governmental agency or instrumentality, domestic or
foreign or before any arbitrator of any kind that would have a material adverse
effect on the business, operations, financial condition, income or business
prospects of EVG. EVG does not have any knowledge of any default on
its part with respect to any judgment, order, writ, injunction, decree, award,
rule or regulation of any court, arbitrator or governmental agency or
instrumentality.
Section
2.9
Contracts.
On the Closing Date:
(a) There
are no material contracts, agreements, franchises, license agreements, or other
commitments to which EVG is a party or by which it or any of its properties are
bound;
(b) EVG
is not a party to any contract, agreement, commitment or instrument or subject
to any charter or other corporate restriction or any judgment, order, writ,
injunction, decree or award which materially and adversely affects, or in the
future may (as far as EVG can now foresee) materially and adversely affect, the
business, operations, properties, assets or conditions of EVG; and
(c) EVG
is not a party to any material oral or written: (i) contract for the
employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension, benefit or
retirement plan, agreement or arrangement covered by Title IV of the Employee
Retirement Income Security Act, as amended; (iii) agreement, contract or
indenture relating to the borrowing of money; (iv) guaranty of any
obligation for the borrowing of money or otherwise, excluding endorsements made
for collection and other guaranties of obligations, which, in the aggregate
exceeds $1,000; (v) consulting or other contract with an
unexpired term of more than one year or providing for payments in excess of
$10,000 in the aggregate; (vi) collective bargaining
agreement; (vii) contract, agreement, or other commitment involving payments by
it for more than $10,000 in the aggregate.
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Section
2.10 No Conflict With Other
Instruments. The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in the breach of any
term or provision of, or constitute an event of default under, any material
indenture, mortgage, deed of trust or other material contract, agreement or
instrument to which EVG is a party or to which any of its properties or
operations are subject.
Section
2.11 Material Contract
Defaults. To the best of EVG's knowledge and belief, it
is not in default in any material respect under the terms of any outstanding
contract, agreement, lease or other commitment which is material to the
business, operations, properties, assets or condition of EVG, and there is no
event of default in any material respect under any such contract, agreement,
lease or other commitment in respect of which EVG has not taken adequate steps
to prevent such a default from occurring.
Section
2.12 Governmental
Authorizations. To the best of EVG’s knowledge, EVG has
all licenses, franchises, permits and other governmental authorizations that are
legally required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with
federal and state securities or corporation laws, no authorization, approval,
consent or order of, or registration, declaration or filing with, any court or
other governmental body is required in connection with the execution and
delivery by EVG of the transactions contemplated hereby.
Section
2.13 Compliance With Laws and
Regulations. To the best of EVG's knowledge and belief, EVG
has complied with all applicable statutes and regulations of any federal, state
or other governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of EVG or would not result in EVG's
incurring any material liability.
Section
2.14 Insurance. All of
the insurable properties of EVG are insured for EVG‘s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage and
will be outstanding and in full force at the Closing Date.
Section
2.15 Approval of
Agreement. On the Closing Date, the directors of EVG
shall have authorized the execution and delivery of the Agreement and have
approved the transactions contemplated hereby.
Section
2.16 Material Transactions or
Affiliations. As of the Closing Date, there will
exist no material contract, agreement or arrangement between EVG and any person
who was at the time of such contract, agreement or arrangement an officer,
director or person owning of record, or known by EVG to own beneficially, ten
percent (10%) or more of the issued and outstanding Common Shares of EVG and
which is to be performed in whole or in part after the date hereof except with
regard to an agreement with the EVG shareholders providing for the distribution
of cash to provide for payment of federal and state taxes on Subchapter S
income. EVG has no commitment, whether written or oral, to lend any
funds to, borrow any money from or enter into any other material transactions
with, any such affiliated person.
8
Section
2.17 SEC
Filings;
Financial Statements.
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(a)
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EVG
has made available to GHG a correct and complete copy, or there has been
available on XXXXX, copies of each report, registration statement and
definitive proxy statement filed by EVG with the SEC for the 36 months
prior to the date of this Agreement (the “EVG SEC Reports”), which, to
EVG’s knowledge, are all the forms, reports and documents filed by EVG
with the SEC for the 36 months prior to the date of this Agreement. As of
their respective dates, to EVG’s knowledge, the EVG SEC Reports: (i) were
prepared in accordance and complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may
be, and the rules and regulations of the SEC thereunder applicable to such
EVG SEC Reports, and (ii) did not at the time they were filed (and if
amended or superseded by a filing prior to the date of this Agreement then
on the date of such filing and as so amended or superseded) contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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(b)
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To
EVG’s knowledge, each set of financial statements (including, in each
case, any related notes thereto) contained in the EVG SEC Reports comply
as to form in all material respects with the published rules and
regulations of the SEC with respect thereto, were prepared in accordance
with U.S. GAAP applied on a consistent basis throughout the periods
involved and each fairly presents in all material respects the financial
position of EVG at the respective dates thereof and the results of its
operations and cash flows for the periods indicated, except that the
unaudited interim financial statements were or are subject to normal
adjustments which were not or are not expected to have a Material Adverse
Effect on EVG.
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Section
2.18 Exchange
Act Compliance.
EVG
is in compliance with, and current in, all of the reporting, filing and other
requirements under the Exchange Act, the shares of EVG Common Stock have been
registered under Section 12(g) of the Exchange Act, and EVG is in compliance
with all of the requirements under, and imposed by, Section 12(g) of the
Exchange Act, except where a failure to so comply is not reasonably likely to
have a Material Adverse Effect on EVG.
ARTICLE
III
EXCHANGE PROCEDURE AND OTHER
CONSIDERATION
Section
3.1 Share Exchange/Delivery of EVG
Securities. On the Closing Date, the GHG
Shareholders shall deliver to EVG (i) certificates or other documents evidencing
all of the issued and outstanding GHG Common Shares, duly endorsed in blank or
with executed power attached thereto in transferable form. On the
Closing Date, all previously issued and outstanding Common Shares of GHG shall
be transferred to EVG, so that GHG shall become a wholly owned subsidiary of
EVG.
9
Section
3.2 Issuance of EVG Common
Shares. In exchange for EVG acquiring all of the GHG Common
Shares tendered pursuant to Section 3.1, EVG shall retain 809,000 shares and
issue to the GHG shareholders an aggregate number of shares equal to the number
of total shares issued and outstanding in the company at the time of closing.
Said shares will be listed on Schedule A to be attached at
closing. Such shares are restricted in accordance with Rule 144 of
the 1933 Securities Act.
Section
3.3 Additional
Consideration. GHG shall make a
non-refundable payment of $5,000 by wire transfer to EVG pursuant to the wire
instructions attached hereto as Schedule B. In addition, GHG shall
make an additional non-refundable deposit payment of $15,000 by wire transfer to
EVG within three (3) days of available funds, such time as it has raised at
least such amount in it private placement offering. In addition, GHG
agrees to pay all costs associated with the filing of EVG’s March 31, 2009 10q
with the SEC. Such fees shall include accounting, legal, xxxxx and
other costs associated with the filing.
Section
3.4 Events Prior to
Closing. Upon execution hereof or as soon thereafter as
practical, management of GHG and EVG shall execute, acknowledge and deliver (or
shall cause to be executed, acknowledged and delivered) any and all
certificates, opinions, financial statements, schedules, agreements, resolutions
rulings or other instruments required by this Agreement to be so delivered,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby, subject only to the conditions to Closing
referenced herein below.
Section
3.5 Closing. The
closing ("Closing") of the transactions contemplated by this Agreement shall be
immediately upon completion of the updated audited and reviewed financial
statements of GHG. Such financial statements must be completed within ten (10)
weeks of the execution of this Agreement.
Section
3.6 Termination.
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(a)
This Agreement may be terminated by the board of directors or majority
interest of Shareholders of either GHG or EVG, respectively, at any time
prior to the Closing Date if:
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(i) there
shall be any action or proceeding before any court or any governmental
body which shall seek to restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the judgment of such board of
directors, made in good faith and based on the advice of its legal
counsel, makes it inadvisable to proceed with the exchange contemplated by
this Agreement; or
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(ii)
any of the transactions contemplated hereby are disapproved by any
regulatory authority whose approval is required to consummate such
transactions.
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(iii)
failure of GHG to deliver the updated financial statements in a timely
manner in accordance with Section 3.5 and 5.4 of this
Agreement.
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(iv) failure
of GHg to deliver the additional $15,000 non-refundable deposit in a
timely manner as set forth in Section 3.3 of this
Agreement.
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In the event of termination pursuant to
this paragraph (a) of this Section 3.6, no obligation, right, or liability shall
arise hereunder and each party shall bear all of the expenses incurred by it in
connection with the negotiation, drafting and execution of this Agreement and
the transactions herein contemplated.
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(b)
This Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of GHG if EVG shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of EVG contained
herein shall be inaccurate in any material respect, which noncompliance or
inaccuracy is not cured after 20 days written notice thereof is given to
EVG. If this Agreement is terminated pursuant to this paragraph
(b) of this Section 3.6, this Agreement shall be of no further force or
effect and no obligation, right or liability shall arise
hereunder.
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(c)
This Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of EVG if GHG shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of GHG contained
herein shall be inaccurate in any material respect, which noncompliance or
inaccuracy is not cured after 20 days written notice thereof is given to
GHG. If this Agreement is terminated pursuant to this paragraph
(c) of this Section 3.6, this Agreement shall be of no further force or
effect and no obligation, right or liability shall arise
hereunder.
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In the event of termination pursuant to
paragraph (b) and (c) of this Section 3.6, the breaching party shall bear all of
the expenses incurred by the other party in connection with the negotiation,
drafting and execution of this Agreement and the transactions herein
contemplated.
Section
3.7 Officers and Directors of EVG.
On the Closing Date, Xxxxxxx Xxx shall resign as sole officer and director of
EVG, and Xxxx Xxxxx, and other appointees to be determined, shall be appointed
as officers and directors of EVG.
ARTICLE
IV
SPECIAL
COVENANTS
Section
4.1 Access to Properties and
Records. Prior to closing, GHG and EVG will
each afford to the officers and authorized representatives of the other full
access to the properties, books and records of each other, in order that each
may have full opportunity to make such reasonable investigation as it shall
desire to make of the affairs of the other and each will furnish the other with
such additional financial and operating data and other information as to the
business and properties of each other, as the other shall from time to time
reasonably request.
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Section
4.2 Registration Rights of EVG
Shareholders. The shares of common stock held by the EVG
shareholders prior to the Closing Date shall be registered on a Form S-1 (or any
other applicable form) (the “Registration Statement”) to be filed with the
Securities and Exchange Commission (the “SEC”) within ninety (90) days following
the Closing Date. The stockholders of EVG prior to the date of this
Agreement and their respective heirs, administrators, personal representatives,
successors and assigns, are intended third party beneficiaries of the provisions
set forth herein. The covenants set forth in this Section 4.2 shall
survive the Closing and the consummation of the transactions herein
contemplated.
Section
4.3 Special Covenants and Representations
Regarding the GHG Common Shares to be Issued in the
Exchange. The consummation of this Agreement, including the
issuance of the GHG Common Shares to the Shareholders of EVG as contemplated
hereby, constitutes the offer and sale of securities under the Securities Act,
and applicable state statutes. Such transaction shall be consummated
in reliance on exemptions from the registration and prospectus delivery
requirements of such statutes which depend, inter alia, upon the circumstances
under which the EVG Shareholders acquire such securities.
Section
4.4 Third Party
Consents. GHG and EVG agree to cooperate with each other
in order to obtain any required third party consents to this Agreement and the
transactions herein contemplated.
Section
4.5 Actions Prior and Subsequent to
Closing.
(a) From and after the date of this
Agreement until the Closing Date, except as permitted or contemplated by this
Agreement, GHG and EVG will each use its best efforts to:
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(i)
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maintain
and keep its properties in states of good repair and condition as at
present, except for depreciation due to ordinary wear and tear and damage
due to casualty;
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(ii)
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maintain
in full force and effect insurance comparable in amount and in scope of
coverage to that now maintained by
it;
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(iii)
|
perform
in all material respects all of its obligations under material contracts,
leases and instruments relating to or affecting its assets, properties and
business;
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(b) From and after the date of this
Agreement until the Closing Date, GHG will not, without the prior consent of
EVG:
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(i)
|
except
as otherwise specifically set forth herein, make any change in its
articles of incorporation or
bylaws;
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(ii)
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declare
or pay any dividend on its outstanding Common Shares, except as may
otherwise be required by law, or effect any stock split or otherwise
change its capitalization, except as provided
herein;
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(iii)
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enter
into or amend any employment, severance or agreements or arrangements with
any directors or officers;
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(iv)
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grant,
confer or award any options, warrants, conversion rights or other rights
not existing on the date hereof to acquire any Common Shares;
or
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(v)
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purchase
or redeem any Common Shares.
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12
Section
4.6 Indemnification.
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(a) GHG
hereby agrees to indemnify EVG, each of the officers, agents and directors
and current shareholders of EVG as of the Closing Date against any loss,
liability, claim, damage or expense (including, but not limited to, any
and all expense whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject to or rising out of or
based on any inaccuracy appearing in or misrepresentation made in this
Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement;
and
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(b) EVG
hereby agrees to indemnify GHG, each of the officers, agents, directors
and current shareholders of GHG as of the Closing Date against any loss,
liability, claim, damage or expense (including, but not limited to, any
and all expense whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentation made in this
Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this
Agreement.
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ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF EVG
The obligations of EVG under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section
5.1 Accuracy of
Representations. The representations and warranties made by
GHG in this Agreement were true when made and shall be true at the Closing Date
with the same force and effect as if such representations and warranties were
made at the Closing Date (except for changes therein permitted by this
Agreement), and GHG shall have performed or compiled with all covenants and
conditions required by this Agreement to be performed or complied with by GHG
prior to or at the Closing. EVG shall be furnished with a
certificate, signed by a duly authorized officer of GHG and dated the Closing
Date, to the foregoing effect.
Section
5.2 Approvals. The
Board of Directors and majority shareholders of GHG shall have approved this
Agreement and the transactions contemplated herein.
Section
5.3 Officer's
Certificate. EVG shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
GHG to the effect that: (a) the representations and
warranties of GHG set forth in the Agreement and in all Exhibits, Schedules and
other documents furnished in connection herewith are in all material respects
true and correct as if made on the Effective Date; (b) GHG
has performed all covenants, satisfied all conditions, and complied with all
other terms and provisions of this Agreement to be performed, satisfied or
complied with by it as of the Effective Date; (c) since
such date and other than as previously disclosed to EVG, GHG has not entered
into any material transaction other than transactions which are usual
and in the ordinary course if its business; and (d) no
litigation, proceeding, investigation or inquiry is pending or, to the best
knowledge of GHG, threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement or,
to the extent not disclosed in the GHG Schedules, by or against GHG which might
result in any material adverse change in any of the assets, properties, business
or operations of GHG.
13
Section
5.4 Delivery of Audit Report and
Financial Statements. At the Closing, GHG shall have completed
and delivered the audit of its financial statements for the years ended December
31, 2008 and 2007 and shall have received an audit report from an independent
audit firm that is registered with the Public Company Accounting Oversight Board
relating to the fiscal years ended December 31, 2008 and 2007. In
addition, GHG shall have and delivered the review of its financial statements
for the three months ended March 31, 2009. The form and substance of the
financial statements shall be prepared in accordance with U.S. generally
accepted accounting principles, SEC rules and regulations. Such financial
statements must be delivered within ten (10) weeks of the execution of this
Agreement.
Section
5.5 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time or
the giving of notice, may use or create any material adverse change in the
financial condition, business or operations of GHG.
Section
5.6 Other
Items. EVG shall have received such further documents,
certificates or instruments relating to the transactions contemplated hereby as
EVG may reasonably request.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF GHG
The obligations of GHG under this
Agreement are subject to the satisfaction, at or before the Closing Date (unless
otherwise indicated herein), of the following conditions:
Section
6.1 Accuracy of
Representations. The representations and warranties made
by EVG in this Agreement were true when made and shall be true as of the Closing
Date (except for changes therein permitted by this Agreement) with the same
force and effect as if such representations and warranties were made at and as
of the Closing Date, and EVG shall have performed and complied with all
covenants and conditions required by this Agreement to be performed or complied
with by EVG prior to or at the Closing. GHG shall have been furnished
with a certificate, signed by a duly authorized executive officer of EVG and
dated the Closing Date, to the foregoing effect.
Section
6.2
Director Approval. The Board of Directors of EVG shall
have approved this Agreement and the transactions contemplated
herein.
Section
6.3 Officer's
Certificate. GHG shall be furnished with a certificate
dated the Closing date and signed by a duly authorized officer of EVG to the
effect that: (a) the representations and warranties of EVG set forth
in the Agreement and in all Exhibits, Schedules and other documents furnished in
connection herewith are in all material respects true and correct as if made on
the Effective Date; and (b) EVG had performed all covenants, satisfied all
conditions, and complied with all other terms and provisions of the Agreement to
be performed, satisfied or complied with by it as of the Effective
Date.
14
Section
6.4
No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time or
the giving of notice, may cause or create any material adverse change in the
financial condition, business or operations of EVG.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Brokers and
Finders. Each party hereto hereby represents and
warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
Section
7.2 Law, Forum and
Jurisdiction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware, United States
of America.
Section
7.3 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by prepaid telegram addressed as
follows:
If to
GHG: 000
Xxxxxx Xxx., #000
Xxx Xxxxx, XX 00000
Attn: Xx.
Xxxx Xxxxx
If to
EVG: 0000
X. Xxx Xxxx Xxxx., Xxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Attn: President
or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
telegraphed.
15
Section
7.4 Attorneys'
Fees. In the event that any party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the breaching party or parties shall
reimburse the non-breaching party or parties for all costs, including reasonable
attorneys' fees, incurred in connection therewith and in enforcing or collecting
any judgment rendered therein.
Section
7.5 Confidentiality. Each
party hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent
such data is a matter of public knowledge or is required by law to be published;
and (ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement.
Section
7.6 Schedules;
Knowledge. Each party is presumed to have full knowledge of
all information set forth in the other party's schedules delivered pursuant to
this Agreement.
Section
7.7 Third Party
Beneficiaries. This contract is solely between GHG and EVG and
except as specifically provided, no director, officer, stockholder, employee,
agent, independent contractor or any other person or entity shall be deemed to
be a third party beneficiary of this Agreement.
Section
7.8 Entire
Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter
hereof. This Agreement alone fully and completely expresses the
agreement of the parties relating to the subject matter hereof. There
are no other courses of dealing, understanding, agreements, representations or
warranties, written or oral, except as set forth herein. This
Agreement may not be amended or modified, except by a written agreement signed
by all parties hereto.
Section
7.9 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section
7.10 Amendment or
Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing
Date, this Agreement may be amended by a writing signed by all parties hereto,
with respect to any of the terms contained herein, and any term or condition of
this Agreement may be waived or the time for performance hereof may be extended
by a writing signed by the party or parties for whose benefit the provision is
intended.
Section
7.11 Expenses. Each
party herein shall bear all of their respective cost s and expenses incurred in
connection with the negotiation of this Agreement and in the consummation of the
transactions provided for herein and the preparation thereof.
16
Section
7.12 Headings;
Context. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
Section
7.13 Benefit. This
Agreement shall be binding upon and shall inure only to the benefit of the
parties hereto, and their permitted assigns hereunder. This Agreement
shall not be assigned by any party without the prior written consent of the
other party.
Section
7.14 Public
Announcements. Except as may be required by law, neither
party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto, except as required by law.
Section
7.15 Severability. In
the event that any particular provision or provisions of this Agreement or the
other agreements contained herein shall for any reason hereafter be determined
to be unenforceable, or in violation of any law, governmental order or
regulation, such unenforceability or violation shall not affect the remaining
provisions of such agreements, which shall continue in full force and effect and
be binding upon the respective parties hereto.
Section
7.16 Failure of Conditions;
Termination. In the event of any of the
conditions specified in this Agreement shall not be fulfilled on or before the
Closing Date, either of the parties have the right either to proceed or, upon
prompt written notice to the other, to terminate and rescind this
Agreement. In such event, the party that has failed to fulfill the
conditions specified in this Agreement will liable for the other parties legal
fees. The election to proceed shall not affect the right of such
electing party reasonably to require the other party to continue to use its
efforts to fulfill the unmet conditions.
Section
7.17 No Strict
Construction. The language of this Agreement shall
be construed as a whole, according to its fair meaning and intendment, and not
strictly for or against either party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or terms or conditions
hereof.
Section
7.18 Execution Knowing and
Voluntary. In executing this Agreement, the parties severally
acknowledge and represent that each: (a) has fully read and considered this
Agreement; (b) has been or has had the opportunity to be fully apprized by its
attorneys of the legal effect and meaning of this document and all terms and
conditions hereof; (c) is executing this Agreement voluntarily, free from any
influence, coercion or duress of any kind.
Section
7.19
Amendment. At any time after the Closing Date, this
Agreement may be amended by a writing signed by both parties, with respect to
any of the terms contained herein, and any term or condition of this Agreement
may be waived or the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the provision is
intended.
17
IN WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, and entered into as of the date
first above written.
| ATTEST: | ||
|
By:
/s/ Xxxxxxxx Xxx
|
||
|
Xxxxxxxx
Xxx
|
||
|
President
|
||
| ATTEST: |
GHG TRADING PLATFORMS,
INC.
|
|
|
By:
/s/ Xxxx Xxxxx
|
||
|
Xxxx
Xxxxx
|
||
|
President
|
||
| ATTEST: |
SHAREHOLDERS OF GHG TRADING
PLATFORMS, INC.
|
|
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18
Annex 1
Exchange
Shares to Be Issued
19
