FIRST AMENDMENT TO THE AGREEMENT CONCERNING THE EXCHANGE OF SECURITIES BY AND AMONG GEOBIO ENERGY, INC., AND GEOALGAE TECHNOLOGY, INC., AND THE SECURITY HOLDERS OF GEOALGAE TECHNOLOGY, INC.
Exhibit 10.18
FIRST AMENDMENT TO THE AGREEMENT
CONCERNING
THE EXCHANGE OF SECURITIES BY AND
AMONG GEOBIO ENERGY, INC.,
AND
GEOALGAE TECHNOLOGY, INC.,
AND
THE SECURITY HOLDERS OF GEOALGAE
TECHNOLOGY, INC.
THIS
FIRST AMENDMENT to the Agreement Concerning the Exchange of Securities by and
among GeoBio Energy, Inc., f/k/a Better Biodiesel, Inc., a Colorado corporation
(“GeoBio”) and GeoAlgae
Technology, Inc., a Wyoming corporation (“GAT”), and the Security
Holders of GeoAlgae Technology, Inc., dated January 10, 2008 (the “Agreement”), entered into this
_____day of March 2008, amends the Agreement as follows (the “Amendment”):
RECITALS
A.
GeoBio, GeoAlgae and the shareholders of GeoAlgae (collectively, the “Parties”)
entered into an Agreement Concerning the Exchange of Securities on or about
January 10, 2008;
B.
In furtherance of the Closing of the Agreement, the Parties wish to amend the
Agreement in order to restructure the terms of consideration;
C.
Additionally, it is acknowledged that GeoBio was known as “Better BioDiesel,
Inc.,” at time of entry into the Agreement, but subsequently changed its name to
“GeoBio Energy”;
D.
Unless otherwise defined in this Amendment, capitalized terms have the meaning
as defined in the Agreement.
Accordingly, the Parties
hereby agree as follows:
1.
In order to compensate for an increased number of issued and outstanding shares
of common stock of GeoBio relative to the Parties expectations at the time of
entry into the Agreement, the shares issued to GAT Security Holders shall be
increased by a factor of 1.175. Additionally, the BBDS Performance Shares
shall be reallocated in order to account for the Parties modification of
expected revenue-segment targets. Furthermore, the BBDS Performance Shares
shall be renamed the “GBOE Performance Shares” to reflect the company’s name
change. Therefore, the 3rd and 4th paragraphs of the
Agreement are deleted in their entirety and replaced as follows:
“WHEREAS,
all of the GAT Security Holders agree to exchange one hundred percent (100%) of
the GAT Stock they hold in GAT for five million, eight hundred seventy-five
thousand (5,875,000) shares of GeoBio Energy common stock (the "Shares").
WHEREAS,
GeoBio Energy commits to make an additional five million, eight hundred
seventy-five thousand (5,875,000) shares available as additional consideration
issuable subject to performance based criteria (the "GBOE Performance Shares") as described in
Section 1.1(b) herein.”
2.
Consistent with Paragraph 1, above, Section 1.1 of the Agreement is hereby
deleted in its entirety and replaced as follows:
“1.1
Issuance of Securities.
Subject to the terms and conditions of this Agreement, GeoBio Energy
agrees to issue the Shares in exchange for one hundred percent (100%) of the
issued and outstanding GAT Stock held by the GAT Security Holders. All
GeoBio Energy Shares will be issued directly to the GAT Security Holders on the
Closing Date (as hereinafter defined), pursuant to the schedule set forth in
Exhibit 1.1.
(a) Upon Closing (defined
in Section 7.1), GeoBio Energy shall issue to the existing GAT Security Holders
the total aggregate amount of five million, eight hundred seventy-five thousand
(5,875,000) Shares;
(b) GeoBio Energy
commits to make an additional five million, eight hundred seventy-five thousand
(5,875,000) shares available as GBOE Performance Shares, issuable subject to
following performance based criteria:
At a rate of one (1) GBOE Performance Share per each $1.25 of GAT’s
contribution to GeoBio Energy’s EBITDA arising during the five (5) year period
following the Closing either (i) from GAT’s algae-biofuel feedstock-growth
technology and/or fuel production based revenue or (ii) from GAT-facilitated
GeoBio acquisitions of existing oil and fuel distributor-based revenue
(i.e.> a $1,000,000 contribution to GeoBio Energy’s EBIDTA would result in
the issuance of 800,000 GBOE Performance Shares”).”
3.
In connection with the change in capitalization, Section 3.2 of the Agreement is
hereby deleted in its entirety and replaced as follows:
4.
In connection with the delay in the anticipated Closing date, Section 3.4 of the
Agreement is hereby deleted in its entirety and replaced as follows:
“3.4
Directors and Officers. The name and title of the director and executive officer of
GeoBio Energy are as follows:
(a)
|
Name
|
|
Position
|
|
Xxxxx X. Xxxx
Xxxx X. XxXxxxxxxxxx
Xxxx Xxxxxxx
|
|
Director
Director
Director
|
(b) Pursuant to this
Agreement, GeoBio Energy shall appoint two (2) GAT designees to the board of
directors, as follows:
(i)
Upon Closing, GeoBio shall appoint Xxxxxxx X. Xxxxxxx, and
(ii)
Within 60 days following the Closing, GeoBio shall appoint the second GAT
designee, the identity of whom shall be determined prior to such date, and whom
the Parties shall deem to be mutually acceptable.
(c) Concurrent to
this Agreement, Xxxxxxx X. Xxxxxxx and GeoBio Energy will execute an employment
agreement naming Xxxxxxx X. Xxxxxxx the Chief Executive Officer of GeoBio Energy
and, as soon as practicable thereafter, GeoBio Energy will execute a
professional and consulting services agreement with Hydro-Safe Inc. and Resource
Capital Development, Inc. for scientific and other services outlined in the
Scope of Work in the Business Plan, and naming Xxxxxx X. Xxxxx the Chief
Technology Officer of GeoBio Energy. Upon execution of this Agreement, Xx.
Xxxxxxx shall have the authority to represent GeoBio as, and with the duties and
powers of, interim Chief Executive Officer, consistent with terms of his
employment agreement, which “interim” status shall be removed, and the
employment contract term shall commence, upon Closing; should the Parties fail
to reach the Closing, Xx. Xxxxxxx’x employment contract shall become null and
void.
5.
In connection with the change in capitalization, Section 7.1 of the Agreement is
hereby deleted in its entirety and replaced as follows:
(a)
GAT shall deliver to Better Biodiesel (i) copies of Exhibit 1.2 executed by all of the GAT Security Holders, (ii) an assignment of
all of the GAT Stock to GeoBio, (iii) the officer’s certificate described in
Section 5.5, (iv) signed minutes of its directors approving this
Agreement.
(b)
GeoBio shall deliver to GAT (i) certificates representing five million, eight
hundred seventy-five thousand (5,875,000) Shares of GeoBio issued in the
names of the GAT Security Holders, (ii) the officer’s certificate described in
Section 6.5, and (iii) signed minutes of its directors approving this
Agreement.”
6.
Except as otherwise provided herein, all other terms of the Agreement remain in
full force and effect.
7. This Amendment
sets forth the entire understanding and agreement of the parties,
and supersedes any and all prior contemporaneous oral or written
agreements or understandings between the parties as to the subject matter of
this Amendment. This Amendment shall be governed by the laws of the State
of Colorado.
8. This
Amendment may be executed by facsimile and in one (1) or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signature blocks appear on the
following page]
IN
WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed as
of the date listed above.
f/k/a
Better Biodiesel,
Inc.
By: ______________________________
Xxxxx
X. Xxxx
Authorized Officer,
Director
GEOALGAE TECHNOLOGY,
INC.
By: ______________________________
Xxxxxxx X.
Xxxxxxx
Chief Executive Officer,
Director
