SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement (“Agreement”), is made and
entered into as of the 30TH day of
June 2008 by and among PNG
VENTURES, INC., a Nevada corporation as purchaser (“PNG”); Earth Biofuels, Inc., a
Delaware corporation (the “EBOF”) and Earth LNG, Inc., f/k/a Apollo
LNG, Inc., a Texas corporation and wholly owned subsidiary of EBOF (“Seller” and, together with
EBOF, the “EBOF
Sellers”), New Earth LNG, LLC a Delaware limited liability company (the
“Company"), Applied LNG
Technologies USA, L.L.C., a Delaware limited liability company (“Applied LNG”). PNG, EBOF, Seller, the Company, New Earth LNG and Applied
LNG, are hereinafter sometimes collectively referred to as the “Parties.”
RECITALS:
A. PNG
desires to acquire from Seller, and Seller wishes to sell, 100% of the issued
and outstanding shares of capital stock of the Company (the “Company Shares”) all of which
are owned by Seller, in exchange for an aggregate of 7,000,000 shares of PNG
voting common stock (the “Exchange Shares”) to Sellers
and the assumption of certain liabilities of the Company (the “Share Exchange”).
B. It
is the intention of the Parties hereto that both the issuance by PNG of the
Exchange Shares to Seller and the transfer by the Seller to PNG of the Company
Shares pursuant to the Share Exchange as well as certain other issuances herein
shall qualify as a transactions in securities exempt from registration or
qualification under the Securities Act of 1933, as amended, and under the
applicable securities laws of each state or jurisdiction where the Seller and
PNG reside.
C. As
a condition to closing of the Share Exchange, and among other conditions and
closing deliveries (i) the Company and its Subsidiaries (as hereinafter defined)
shall enter into an Amended and Restated Credit Agreement (the “Credit Agreement”) with Fourth
Third, LLC, (the “Collateral
Agent”) as lender and as agent for various secured creditors (the “Secured Creditors”) at or
commensurate with Closing for a credit facility of up to $34,000,000 of secured
indebtedness, (ii) PNG shall co-sign the Credit Agreement as a Loan Party (as
defined in the Credit Agreement) and execute a Guaranty and Collateral Agreement
in favor of Collateral Agent for the Secured Creditors, substantially in the
form as annexed hereto as Exhibit
A (the “Pledge
Agreement”) and Greenfield Commercial Credit Co. (“Greenfield”), an existing
secured creditor of the Company shall consent to the Share Exchange
and enter into an Intercreditor Agreement with Collateral Agent (iii) the
Company and Subsidiaries shall enter into a Guaranty Agreement (the “Guaranty Agreement”) and PNG,
the Company and Subsidiaries shall enter into a Collateral and Security
Agreement (the “Security
Agreement”) in favor of Black Forest International, LLC (the “Black Forest
Fund”) with respect to approximately a $626,250
principal amount 12% Subordinated Secured Convertible Promissory Note (the
“Black Forest Note”)
issued by PNG, respectively, and Black Forest Fund shall enter into a
Subordination and Intercreditor Agreement with Collateral Agent, substantially
in the forms as annexed hereto as Exhibit
B (the “Subordination
Agreements”), and, immediately after closing, a mortgage lien and (iv)
the Releasing Creditors (as hereinafter defined) and certain other parties shall
enter into a an Irrevocable Proxy with respect to certain shares issued to
Seller which are held in pledge for certain Subordinated Creditors substantially
in the form as annexed hereto as Exhibit
C (the “Voting
Proxy”), and a Release, Consent and Acknowledgement substantially in the
form as annexed hereto as Exhibit
D (the “Releasing
Creditor Release”), consenting to the Share Exchange and discharge and
release the Company and Subsidiaries and PNG from any and all indebtedness,
liabilities and obligations of any kind.
D. BCGU,
LLC, (“BCGU”) a creditor
to PNG, shall be issued by PNG 280,000 shares of PNG Common Stock (the “BCGU Shares”) in exchange for
full release of claims and discharge of
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indebtedness
owed to them; Collateral Agent (or its designees) shall be issued an aggregate
of 1,100,000 share of PNG Common Stock (the “Fourth Third Shares”) pursuant
to a to a Master Rights Agreement substantially in the form annexed hereto as
Exhibit
E, the final terms of which shall be agreed to by PNG and Collateral
Agent (the “Master Rights
Agreement”); and conditionally, Xxx Xxxxxx and certain entities
affiliated with him and/or beneficially owned or controlled by him (the “Xxxxxx Group”) shall execute
and deliver a Consent, Release and Debt Discharge Agreement in such form as
agreed to by PNG and the Xxxxxx Group (the “Xxxxxx
Release”) relating to the issuance of an aggregate of (i) 1,000,000
shares of PNG Common Stock (the “Xxxxxx Shares”) and (ii) PNG
may issue up to 250,000 shares of PNG Common Stock as consideration for the
issuance to PNG of the Irradia Option (as hereinafter defined) substantially in
the form as annexed hereto as Exhibit
F (the “Irradia
Option”) as consideration for their consent to this Agreement and in
satisfaction and release of, certain obligations for previous services rendered
a release.
E. PNG,
Seller, the Company, the Subsidiaries, Black Forest Fund and certain other
parties have been engaged in a lawsuit which has since been settled in
accordance with a court ordered settlement Agreement, dated as of June 5, 2008
(the “Settlement
Agreement”), pursuant to which, among other things, PNG agreed to issue
the Black Forest Note, the EBOF Note (as hereinafter defined) and certain other
securities.
F. The
board of directors of each of PNG , the Company, EBOF and the Seller all deem it
to be in the best interests of PNG, EBOF, the Seller and the Company
and its Subsidiaries (as hereinafter defined) to consummate the Share Exchange,
and to operate the Company and Subsidiaries without any previously existing
liabilities or obligations.
NOW, THEREFORE, in
consideration of the mutual covenants, agreements, representations and
warranties contained in this Agreement, the Parties hereto agree as
follows:
DEFINITIONS
As used
in this Agreement, the following terms shall have the meanings set forth
below:
“AAA” shall have the meaning
set forth in Section
7.3 of this Agreement.
“Applicable Law” means any
domestic or foreign law, statute, regulation, rule, policy, guideline or
ordinance applicable to the businesses of the Parties, the Share Exchange and/or
the Parties.
“Affiliate” means any one or
more Person controlling, controlled by or under common control with any other
Person or their affiliate.
“Annual Financial Statements”
shall have the meaning set forth in Section 2.4(a) of
this Agreement.
“BCGU” means BCGU, LLC, and its
administrative manager, Business Consulting Group Unlimited, Inc.
“BCGU Shares” shall have the
meaning set forth in the Recitals.
“Black Forest Fund” means Black
Forest International, LLC as described in the Recitals to this
Agreement.
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“Black Forest Note” means that
certain $626,250 Promissory Note dated as of June 3, 2008 by PNG in favor of
Black Forest Fund and convertible into shares of PNG Common Stock, issued in
accordance with the Settlement Agreement.
“Black Forest Note Shares”
means an aggregate of 756,325 shares of PNG Common Stock issuable upon
conversion of the Black Forest Note, as may be adjusted as provided
therein.
“Business Day” shall mean any
day, excluding Saturday, Sunday and any other day on which national banks
located in New York, New York shall be closed for business.
“Closing” shall have the
meaning set forth in Section 1.3 of this
Agreement.
“Closing Date” shall have the
meaning set forth in Section 1.3 of this
Agreement.
“Collateral Agent” shall have
the meaning set forth in the Recitals.
“Company” or “Earth LNG” means Earth LNG,
Inc., a Texas corporation and wholly owned subsidiary of the Company, formerly
known as Apollo LNG, Inc.
“Company Fully-Diluted
Interests” means the maximum number membership interests or other equity
interests that are issued and outstanding at the Closing, on a fully-diluted
basis, after giving effect to (i) the conversion into Company Shares of all
preferred interests, convertible notes, convertible interests or other
convertible securities of the Company and (ii) the exercise of all outstanding
options, warrants or other rights to purchase shares of the Company capital
stock.
“Company Shares” means the
shares of limited liability company membership interests of the Company, as
issued in certificated form pursuant to the Operating Agreement.
“Consent” means any consent,
approval, authorization, permission or waiver.
“Corporations” shall mean the
collective reference to the Company and each of the Subsidiaries (as hereinafter
defined) as at the Closing Date.
“Credit Agreement” shall have
the meaning set forth in the Recitals.
“Damages” shall have the
meaning set forth in Section 7.1(a) of
this Agreement.
“Dollar” and “$” means lawful money of the
United States of America.
“EBOF Note” means that certain
convertible promissory note in the principal amount of $171,000 convertible into
1,900,000 shares of PNG Common Stock (as may be adjusted as set forth therein)
issued by PNG to Seller, pursuant to the Settlement Agreement.
“EBOF Note Shares” means
1,900,000 shares of PNG Common Stock, held in escrow and issuable upon
conversion of the EBOF Note, subject to adjustment as provided therein, and
further subject to a resale limitation as provided herein.
“Environmental Laws” shall mean
all applicable United States federal, state, local and foreign laws, statutes,
common law, treaties, rules, interpretive guidance codes, ordinances,
regulations, certificates,
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orders,
directives, interpretations, licenses, permits and other authorizations of any
Governmental Body and judgments, decrees, injunctions, writs, orders or like
action of any court, arbitrator or other administrative, judicial or
quasi-judicial tribunal or agency of competent jurisdiction having the force of
law and being applicable to the Corporations, dealing with the protection of
health, welfare or the environment, including, without limitation, flood,
pollution or disasters, health and environmental protection, public or employee
health and safety, releases of Hazardous Substances into air, water, land or
groundwater, the withdrawal or use of groundwater, trespass, nuisance, product
content, and the use, handling, transportation, manufacturing, introduction into
the stream of commerce or disposal of Hazardous Substances, including, without
limitation, the federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as amended, the federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as
amended, the Clean Air Act, 42 U.S.C. Section 7401 et seq., as amended, and the
federal Clean Water Act, 33 U.S.C. Section 1251 et seq., as
amended.
“Environmental Permits” shall
have the meaning set forth in Section 2.19(b) of
this Agreement.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Exchange Shares” shall mean
the Seven Million (7,000,000) shares of PNG Common Stock to be issued to the
Seller on the Closing Date.
“Financial Statements” shall
have the meaning set forth in Section 2.4(a) of
this Agreement.
“Form 8-K Report” shall have
the meaning set forth in Section 5.9 of this
Agreement.
“Fourth Third Shares” shall
have the meaning set forth in the Recitals.
“GAAP” means generally accepted
accounting principles in the United States of America as promulgated by the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board or any successor Institutes concerning the treatment of any
accounting matter.
“General Survival Period” shall
have the meaning set forth in Section
6.
“Governmental Body” means any
federal, state, local, foreign or other government or quasi-governmental
authority or any department, agency, subdivision, court or other tribunal of any
of the foregoing.
“Hazardous Substances” means
any material, compound, chemical, substance or waste that is regulated,
classified, characterized, or otherwise defined under or pursuant to any
Environmental Law as “hazardous,” “toxic,” a “pollutant,” a “contaminant” or
words of similar meaning or effect, including, but not limited to, (a) those
substances defined as hazardous substances or pollutants or contaminants under
Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time (42 U.S.C. Section 9601);
(b) those substances defined as hazardous wastes under Section 1004 of the
Resource Conservation and Recovery Act, as amended from time to time (42 U.S.C.
Section 6903); (c) those substances regulated under the Toxic Substances Control
Act, as amended from time to time (15 U.S.C. Sections 2601 et seq.); (d) those
substances regulated under the Clean Air Act as amended from time to time (42
U.S.C. 7402 et seq.) and those substances regulated under the Clean Water Act,
as amended from time to time (33 U.S.C. Sections 1251 et seq.) (e) petroleum,
including crude oil or any fraction thereof; or (f) other hazardous or toxic
chemicals or substances
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(including
without limitation asbestos, mold, urea formaldehyde or polychlorinated
biphenyls).
“Indemnity Floor” shall have
the meaning set forth in Section 7.1(b) of
this Agreement.
“Interim Financial Statements”
shall have the meaning set forth in Section 2.4(a) of
this Agreement.
“Irradia Option” shall mean
that certain Share Option Agreement between PNG and Xxxxxx International Corp.,
a Company limited by shares organized under the laws of the British Virgin
Islands, with respect to an acquisition of a 20% beneficial ownership interest
in Irradia Socieded Commercial de Responsabilidad Limitada, a company formed
under the laws of and domiciled in Peru.
“Xxxxxx Release” shall have the
meaning set forth in the Recitals.
“Xxxxxx Shares” shall have the meaning
set forth in the Recitals.
“Knowledge” means the knowledge
after reasonable inquiry.
“Liabilities” shall have the meaning
set forth in Section
2.15 of this Agreement.
“Lien” means, with respect to
any property or asset, any mortgage, lien, pledge, charge, security interest,
encumbrance or other adverse claim of any kind in respect of such property or
asset.
“Material Adverse Effect” with
respect to any entity or group of entities means any event, change or effect
that has or would have a materially adverse effect on the financial condition,
business or results of operations of such entity or group of entities, taken as
a consolidated whole.
“Master Rights Agreement” shall
have the meaning set forth in the Recitals.
“Operating Agreement” means the
limited liability company operating agreement of the Company, by and among the
Company and Seller as Sole member.
“Permit” means any permit, license or
Consent issued by any
Governmental Body or pursuant to any Applicable Law.
“Permitted Indebtedness” means
indebtedness owed by the Company to the Lenders under the Credit Agreement and
to the Greenfield and Black Forest Fund, but not any indebtedness to the Xxxxxx
Group or any other Creditors or Subordinated Creditors except insofar as
approved by PNG.
“Permitted Liens” shall mean
the Liens or pledges on the assets of the Company or of any Subsidiary, securing
the Permitted Indebtedness.
“Person” means any individual,
corporation, partnership, limited partnership, limited liability company, trust
or unincorporated organization or a government or any agency or political
subdivision thereof.
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“Pledge Agreement” shall have
the meaning set forth in the Recitals.
“PNG 2007 Audited Financial
Statements” shall have the meaning set forth in Section 3.4(a) of
this Agreement.
“PNG 2008 Financial Statements”
shall have the meaning set forth in Section 3.4(a) of
this Agreement.
“PNG Common Stock” shall mean
the 50,000,000 shares of common stock of PNG, $.001 par value per share,
authorized pursuant to the certificate of incorporation of PNG, as amended and
in effect through the Closing Date.
“PNG Fully-Diluted Common
Stock” means, as at the time in question, the 12,704,634 maximum number of shares
of PNG Common Stock that are issued and outstanding and issuable as at the
Closing Date, after giving effect to (i) the conversion of the PNG Common Stock
of the Black Forest Note presuming 756,325 shares are issued thereby and of the
EBOF Note presuming 1,900,000 share be duly issued and released from escrow upon
conversion thereof, and all convertible notes, convertible preferred stock or
other convertible securities of PNG, and (ii) the exercise of all outstanding
options, warrants or other rights to purchase shares of PNG capital stock that
is outstanding as at the Closing Date; provided,
however, that, as used in this Agreement, the term “PNG Fully-Diluted Common
Stock” shall not mean
or include any shares of PNG Common Stock issued or issuable upon conversion of
any PNG notes or shares of PNG preferred stock, or upon the exercise of options,
warrants or other rights to purchase shares of PNG capital stock, to the extent
such securities are issued or issuable (A) in connection with any one or more
financings for the Company or PNG on or subsequent to the Closing Date of the
Share Exchange, (B) in connection with any purchase of the assets, securities or
the businesses of any other persons or for any other valid business purpose
approved by the Board of Directors subsequent to the Closing Date of the Share
Exchange, or (C) in connection with any make whole provision relating to the
Fourth Third Shares or any stock options or other incentive equity securities
issued to any employees, board members or consultants of PNG or the Company in
consideration of services to be rendered subsequent to the Closing Date of the
Share Exchange.
“PNG Parties” shall have the
meaning set forth in Section 7.1(a) of
this Agreement.
“Release Shares” means each of
the 280,000 BCGU Shares, the 1,100,000 Fourth Third Shares and, if and when
issued, the 1,000,000 Xxxxxx Shares.
“Releasing Creditors” means
Xxxxxxx Asset Management Corp., Portside Growth and Opportunity Fund, and
Radcliffe SPC, Ltd. and YA Global Investments, L.P., f/k/a Cornell Capital
Partners, L.P.
“Released Indebtedness” means
indebtedness owed to the Releasing Creditors under the various notes or credit
instruments entered into by Seller and the Corporations in favor of such
persons.
“Releasing Creditor Release”
shall have the meaning set forth in the Recitals.
“SEC” shall have the meaning
set forth in Section
2.17 of this Agreement.
“SEC Reports” shall have the
meaning set forth in Section 2.17 of this
Agreement.
“Secured Creditors” shall have
the meaning set forth in the Recitals.
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“Seller” means Earth LNG, Inc.
f/k/a Apollo LNG, Inc. a Texas corporation, which wholly owns and is
transferring hereby, marketable title to the Company Shares.
“Settlement Agreement” means
that Settlement Agreement, dated as of June 5, 2008 as defined in the
Recitals.
“Share Exchange” shall have the
meaning set forth in the Recitals.
“Subordination Agreement” shall
have the meaning set forth in the Recitals.
“Subsidiaries” (or each, a
“Subsidiary”) shall mean
any Person, a majority of whose capital stock, members’ interests or other
equity is owned by any other corporation or other entity, and, for the purposes
of this Agreement, shall mean the collective reference to Arizona LNG, L.L.C., a
Nevada limited liability company (“Arizona LNG”), and Applied LNG
Technologies USA, L.L.C. (“Applied LNG”) each of which is
and shall remain after closing, a wholly-owned subsidiary of the Company
and, Fleet Star, Inc, a Delaware corporation (“Fleet Star”) and, Earth
Leasing, Inc., f/k/a Alternative Deal Fuels, Inc. d/b/a Apollo Leasing, Inc., a
Texas corporation (“Apollo
Leasing”) each of which is and shall remain after closing, wholly owned
subsidiary of Applied LNG.
“Tangible Assets” shall have
the meaning set forth in Section 2.14 of this
Agreement.
“Tax” (and, with correlative
meaning, “Taxes” and
“Taxable”)
means:
(i) any
income, alternative or add-on minimum tax, gross receipts tax, sales tax, use
tax, ad valorem tax, transfer tax, franchise tax, profits tax, license tax,
withholding tax, payroll tax, employment tax, excise tax, severance tax, stamp
tax, occupation tax, property tax, environmental or windfall profit tax, custom,
duty or other tax, impost, levy, governmental fee or other like assessment or
charge of any kind whatsoever together with any interest or any penalty,
addition to tax or additional amount imposed with respect thereto by any
governmental or Tax authority responsible for the imposition of any such tax
(domestic or foreign), and
(ii) any
liability for the payment of any amounts of the type described in clause (i)
above as a result of being a member of an affiliated, consolidated, combined or
unitary group for any Taxable period, and
(iii) any
liability for the payment of any amounts of the type described in clauses (i) or
(ii) above as a result of any express or implied obligation to indemnify any
other person.
“Tax Return” means any return,
declaration, form, claim for refund or information return or statement relating
to Taxes, including any schedule or attachment thereto, and including any
amendment thereof.
“Transfer” shall have the
meaning set forth in Section 1.1(a) of
this Agreement.
“Voting Proxy” shall
mean that certain Irrevocable Proxy by Seller in favor of one of the
Subordinated Creditors, with respect to the voting rights and related rights of
the Exchange Shares.
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THE
SHARE EXCHANGE
SECTION
1. THE SHARE EXCHANGE;
OFFICERS AND DIRECTORS
1.1 The Share
Exchange.
(a) On
the Closing Date and subject to and upon the terms and conditions of this
Agreement, the Seller shall, and EBOF shall take all actions necessary to cause
Seller to, sell, assign, transfer and exchange (collectively, “Transfer”) to PNG, full
marketable title to 1,000 Company Shares of the Company, said shares
constituting 100% of membership interests of the Company Fully Diluted Interests
as at the Closing Date and, amend the Operating Agreement to effecting the
foregoing, and withdraw as a member of the Company; provided, however, that no
tax liabilities or contingent tax liabilities shall be deemed to be part of the
Transfer.
(b) On
the Closing Date, and in exchange for the Transfer to it of the Company Shares
and among other things, (i) PNG shall issue the Exchange Shares to Sellers
subject to satisfaction of all closing conditions herein, (ii) PNG shall issue
the BCGU Shares to BCGU in exchange for releases and discharge of indebtedness
and, (iii) PNG shall issue the Fourth Third Shares in exchange for the Master
Rights Agreement, (iv) PNG shall become the sole member of the Company under the
Operating agreement and (v) the Collateral Agent and Secured Creditors, PNG, the
Company and the Subsidiaries shall execute and deliver the Credit Agreement, and
the Pledge Agreement and related agreements and all other conditions to Closing
and related deliveries set forth in Section 4 below shall
have been satisfied or duly waived.
1.2 Exemption from
Registration. The Parties intend that the Exchange Shares and
Release Shares shall be restricted shares, and such issuances shall be exempt
from the registration requirements of the Securities Act pursuant to Section
4(2) of the Securities Act to the Seller and the rules and regulations
promulgated thereunder.
1.3 Closing.
The
closing of the Share Exchange (the “Closing”) will take place at
the offices of Xxxxxxx Xxxx LLP, counsel for BCGU and Black Forest Fund, at its
office in New York, New York, within ten days following the delivery of
satisfaction or waiver of the conditions precedent set forth in Section 4 or at such
other date as PNG and the Seller shall agree (the “Closing Date”), but in no
event shall the Closing Date occur later than June 30, 2008, unless such date
shall be extended by mutual agreement of PNG and the Seller.
1.4 Board of Directors and
Officers. Immediately prior to the Closing Date of the
Share Exchange, the board of directors and or manager(s) as the case may be, of
the Company and each of its Subsidiaries shall be Persons who shall be
designated by PNG. The officers of the Company and each of its
Subsidiaries subsequent to the Share Exchange shall be the current officers of
the Company and the Subsidiaries, all of whom shall serve at the pleasure of the
board of directors of the Company and such Subsidiaries.
1.5
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Restrictions On
Resale
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The
Exchange Shares and Release Shares will not be registered under the Securities
Act, or the securities laws of any state, and cannot be transferred,
hypothecated, sold or otherwise disposed of until: (i) a registration statement
with respect to such securities is declared effective under the Securities
Act,
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or (ii)
PNG receives an opinion of counsel for the stockholder, reasonably satisfactory
to counsel for PNG, that an exemption from the registration requirements of the
Securities Act is available or (iii) another applicable exemption from the
registration requirements of the Securities Act is available for the removal of
the legends therefore. The EBOF Note Shares are subject to restrictions on
resale’s as set forth in the Settlement Agreement and related amended court
order.
The
certificate(s) representing the Exchange Shares and Release Shares (but not any
shares issued pursuant to a court order pursuant to Section 3(a)(10) of
the Securities Act as contemplated by the Settlement Agreement) shall contain a
legend substantially as follows:
“THE
SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR THE ISSUER RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR THE
ISSUER THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS
AVAILABLE.”
1.6
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Exchange of
Certificates.
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(a) On
the Closing Date, and among other closing conditions referenced herein, the
Seller shall and EBOF shall to take all actions necessary to cause Seller to,
surrender all of its Company Shares to PNG, and amend the Operating Agreement to
reflect such transfer, and the Seller shall be entitled upon such surrender and
Operating Agreement modification, to receive in exchange therefore one or more
certificates representing in aggregate the 7,000,000 Exchange Shares for which
the Company Shares theretofore surrendered shall have been exchanged pursuant to
this Agreement.
(b) All
Exchange Shares for which the Company Shares shall have been exchanged pursuant
to this Article
I shall be deemed to have been issued in full satisfaction of all rights
pertaining to the Company Shares.
(c) All
Release Shares issued upon receipt of appropriate release and consents, shall be
deemed issued in full satisfaction of any liabilities, claims, rights or
obligations or Purchasers, the Company, Subsidiaries of the affiliates to such
parties.
SECTION 2. REPRESENTATIONS
AND WARRANTIES OF THE SELLER
AND THE
COMPANY.
Each of the EBOF Sellers hereby
jointly and severally represent and warrant to PNG, as follows:
2.1 Organization and Good
Standing. Each of the EBOF Sellers and the Corporations is a
corporation or limited liability company, as the case may be, duly organized and
validly existing under the laws of the state of it organization as set forth on
Schedule 2.1
hereto. Each of the EBOF Sellers and the Corporations is duly
qualified to do business and is in good standing under the laws of each
jurisdiction where such qualification is required as set forth on Schedule 2.1
hereto. Each of the EBOF Sellers and the Corporations has full power
and authority to conduct the businesses in which each is engaged, to own, lease
and use their respective assets and to perform their respective obligations,
except to the extent that the absence of such authority would not result in a
material adverse effect. Neither
the EBOF Seller nor any of the Corporations is in violation of any of its
organizational documents.
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2.2 Authority.
(a) Each
of the EBOF Sellers, the Company and each Subsidiary that is a party hereto, has
the power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement,
the documents contemplated hereby and the consummation of the transactions
contemplated hereby has been duly authorized by (i) the Board of Directors of
the Company and Seller as its sole Member in accordance with the Operating
Agreement and (ii) the Board of Directors of Seller and by EBOF as its sole
stockholder and no further corporate or limited liability company action on the
part of the EBOF Sellers, the Company or any Subsidiary, or any of their
respective shareholders, preferred stock shareholders, members, equity holders
or creditors, is required to enable the EBOF Sellers and Company to enter into
this Agreement and to perform their obligations hereunder. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, certificate of incorporation, certificate of
designation, organizational document, operating agreement by-law, license or
other instrument or document to which the EBOF Sellers, or any of the
Corporations is a party and will not violate any judgment, decree, order, writ,
rule, statute, or regulation applicable to such EBOF Sellers, any of the
Corporations or any of their respective properties. Except as set
forth on Schedule
2.2, neither the EBOF Sellers nor any of the Corporations need to notify
or obtain any Consent of any Person in order to perform its obligations with
respect to the transactions contemplated by this Agreement.
(b) EBOF
Sellers and each of the Corporations that is a party hereto or to any
certification or transaction document relating to this Agreement, has the
corporate or limited liability company power, as the rise may be, to enter into
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transaction contemplated
hereby have been duly authorized by the Board of Directors of the EBOF Seller
and by Apollo Resources International, Inc. and its Board of
Directors.
(c) At
or prior to Closing, EBOF shall have redeemed all of the preferred stock held by
Black Forest Fund and terminated any guaranty or obligations of Company with
respect thereto, and EBOF Sellers and Company shall have obtained its consent to
this transaction as well as any other consents (whether from creditors or
otherwise) necessary as provided herein.
2.3 Ownership of the Company
Securities and other
assets. EBOF
is the owner of record and beneficially of 100% of the issued and outstanding
shares or other ownership interests of Seller. The Seller is the
owner of record and beneficially of 100% of the issued and outstanding Company
Shares. The Company is the owner of record and beneficially of 100%
of the ownership interests of Applied LNG and Arizona LNG. Applied
LNG owns 100% of the issued and outstanding shares of Fleet Star and Earth
Leasing, with the exception of 1,821,330 shares of Series A Preferred Stock of
Earth Leasing owned beneficially and of record by four members of the Xxxxxx
Group and in dspute set forth on Schedule
2.3. Neither the Company nor any of the Subsidiaries have and
will not at Closing have, any shares of preferred stock or preferred
interests authorized or issued or designated by their boards. The
authorized, issued and outstanding common stock or other ownership interests of
each of the Subsidiaries, all of which is owned by the Company, are set forth on
Schedule
2.3. All of the issued and outstanding equity interests of the
Company and each Subsidiary were duly authorized and are validly issued, fully
paid and non-assessable. There are no outstanding (a) securities
convertible or exchangeable into equity interests of the Company or any
Subsidiary, (b) options, warrants, purchase rights, subscription rights,
preemptive rights, conversion rights, exchange rights, calls, puts, rights of
first refusal, promises, profit or income rights, or other agreements that could
require the Company or any Subsidiary to issue, sell or otherwise cause to
become outstanding or to acquire, repurchase or redeem equity or other economic
or voting interests of the Company or any Subsidiary or (c) stock
appreciation, phantom stock, profit participation or similar
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rights
with respect to the Company or any Subsidiary. Neither the Company
nor any Subsidiary has violated in any material respect any applicable
securities law in connection with the offer, sale or issuance of any of its
equity interests or other equity or debt securities. The Company does
not control directly or indirectly or have any direct or indirect equity
interest in any Person other than the Subsidiaries. The Subsidiaries do not
control directly or indirectly or have any direct or indirect equity interest in
any Person. The Seller is the owner of record and beneficially of 100% of the
issued and outstanding shares of the Company Fully. The Operating
Agreement Exhibit
G hereto has been duly authorized and entered into and is enforceable by
its terms. Prior to the Closing, the Seller has contributed all of
its assets (including, without limitation Arizona LNG and Applied LNG) but no
liabilities (other than disclosed trade payables), tax liabilities or contingent
tax liabilities to New Earth LNG, Inc.
2.4 Financial Statements, Books
and Records.
(a) The
audited consolidated financial statements (balance sheet, income statement,
notes) of the Corporations as of December 31, 2007 and for the fiscal year then
ended (the “Annual Financial
Statements”) are contained in the Seller’s annual report on Form 10-KSB,
filed on April 14, 2008, and (b) the unaudited financial statements of the
Corporations as of March 31, 2008 and for the three months then ended are
contained in the Seller’s quarterly report on Form 10-Q, filed on April 30, 2008
(the “Interim 2008 Financial
Statements” and together with the Annual Financial Statements, the "Financial
Statements"). The Financial Statements fairly represent the
financial position of the Corporations as at such dates and the results of their
operations for the periods then ended. The Financial Statements were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis with prior periods except as otherwise stated therein and
except that the Interim 2008 Financial Statements may not include all footnotes
normally included under such generally accepted accounting
principles. The books of account and other financial records of the
Corporations are in all respects complete and correct in all material respects
and are maintained in accordance with good business and accounting
practices.
(b) The
Annual Financial Statements and the Interim 2008 Financial Statements are
capable of being audited and have been duly audited as part of the Sellers
annual audit in accordance with generally accepted accounting principles and
Regulation S-K, as promulgated under the Securities Exchange Act of 1934, as
amended.
2.5 Access to
Records. The corporate financial records, minute books and
other documents and records of the Corporations have been made available to PNG
prior to the Closing hereof.
2.6 No Material Adverse
Changes. Except as otherwise described on Schedule 2.6 hereto,
since March 31, 2008 there has not been:
(a)
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any
material adverse change in the financial position of any of the
Corporations except changes arising in the ordinary course of business,
which changes will in no event materially and adversely affect the
financial position of any of the
Corporations;
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(b)
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any
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of any of the
Corporations whether or not covered by
insurance;
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(c)
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any
declaration, setting aside or payment of any dividend or distribution with
respect to any redemption or repurchase of capital stock of any of the
Corporations or any other liability relating to an outstanding obligation
of the Seller or Company to pay any redemption amount or other liability
of Seller;
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(d)
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any
sale of an asset (other than in the ordinary course of business) or any
mortgage or pledge by any of the Corporations of any properties or assets,
other than as set forth in Section 2.13
below; or
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(e)
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adoption
of any pension, profit sharing, retirement, stock bonus, stock option or
similar plan or arrangement y any of the
Corporations.
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2.7 Taxes. The
Seller and Corporations, as of December 31, 2007, have filed and paid all
material tax, governmental, property, use and/or related forms and reports (or
extensions thereof) due or required to be filed and has (or will have) paid or
made adequate provisions for all taxes or assessments which had become due as of
December 31, 2007, and there are no deficiency notices
outstanding. EBOF Sellers agree to indemnify PNG for all costs,
penalties, fees, taxes not paid through closing, without regard to any limits
provided in Section
7 below.
2.8 Compliance with
Laws. Except as set forth on Schedule 2.8, the
Corporations have complied with all federal, state, county and local laws,
environmental laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the businesses of any of
the Corporations.
2.9 No
Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not:
(a) violate any
provision of the Certificate of Incorporation or By-Laws of the Seller, the
Company or any similar charter, organization documents or operating or similar
agreement of any of the Subsidiaries;
(b) violate, conflict with
or result in the breach of any of the terms of, result in a material
modification of, otherwise give any other contracting party the right to
terminate, or constitute (or with notice or lapse of time, or both constitute) a
default under any contract or other agreement to which the Seller or any of the
Corporations are a party or by or to which it or any of its assets or properties
may be bound or subject;
(c) violate any order,
judgment, injunction, award or decree of any court, arbitrator or governmental
or regulatory body against, or binding upon, the Seller or any of the
Corporations or upon the properties or business of the Seller or any of the
Corporations; or
(d) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein which could have a materially adverse effect on
the business or operations of the Seller or any of the
Corporations.
2.10 Actions and
Proceedings. No Corporation is a party to any material pending
litigation or, to its knowledge, any governmental investigation or proceeding
not reflected in the Financial Statements, and to each Corporation’s best
knowledge, no material litigation, claims, assessments or non-governmental
proceedings are threatened against any of the Corporations except as set forth
on Schedule
2.10 attached hereto and made a part hereof. Schedule 2.10
contains an update of all settlement negotiations and proposals relating to any
litigation, action, claim or dispute of any of the Corporations, whether or not
disclosed in the Company’s SEC Reports. EBOF Sellers acknowledge that the
Settlement Agreement is in full force and effect and that it understands that
the EBOF Note Shares, if acquired upon conversion of the Note, are subject to a
limitation on re-sale such that no EBOF Note Shares as provided in the
Settlement Agreement and related court order.
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2.11 Agreements. Schedule 2.11 sets
forth any material contract or arrangement to which any of the Corporations are
a party or by or to which any Corporation or any Corporation’s assets,
properties or business are bound or subject, whether written or
oral.
2.12 Brokers or
Finders. No broker's, consultant’s or finder's fee will be
payable in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by the Seller, the
Corporations, or any other person.
2.13 Real
Estate. Except as set forth on Schedule 2.13, the
Corporations do not own no real property and are not a party to any leasehold
agreement.
2.14 Tangible
Assets. Except as set forth on Schedule 2.14 hereto,
each of the Corporations have full title and interest in all personal property,
machinery, equipment, furniture, leasehold improvements, fixtures, projects,
owned or leased by the Corporations, any related capitalized items or other
tangible property material to the business of the Corporations (the "Tangible
Assets"). Each Corporation holds all rights, title and
interest in all the Tangible Assets owned by it, including, without limitation,
all the personal property and assets reflected on the balance sheet contained in
the Interim 2008 Financial Statements or acquired by it after the date on the
Interim 2008 Financial Statements free and clear of all liens, pledges,
mortgages, security interests, conditional sales contracts or any other
encumbrances, other than Permitted Liens. All of the Tangible Assets
are in good operating condition and repair and are usable in the ordinary course
of business of the Corporations and conform to all applicable laws, ordinances
and government orders, rules and regulations relating to their construction and
operation, except as set forth on Schedule 2.14 hereto.
The assets and properties of the Corporations are sufficient for the continued
conduct of the business of the Corporations after the Closing in substantially
the same manner as currently conducted by the Corporations.
2.15 Liabilities. The
Corporations did not have any direct or indirect indebtedness, liability, claim,
loss, damage, deficiency, obligation or responsibility, known or unknown, fixed
or unfixed, liquidated or unliquidated, secured or unsecured, accrued or
absolute, contingent or otherwise, including, without limitation, any liability
on account of taxes, any governmental charge or lawsuit or obligation to make
any payment for the redemption or cancelation of any securities (all of the
foregoing collectively defined to as "Liabilities"), which are not
fully, fairly and adequately reflected on the Financial Statements except for a
specific Liabilities set forth in the Interim 2008 Financial Statements or on
Schedule 2.15
attached hereto and made a part hereof. As of the date of Closing,
the Corporations will not have any Liabilities, other than Permitted Liabilities
and Permitted Liens except for Liabilities incurred in the ordinary course of
business and as set forth in Schedule
2.15. There is no circumstance, condition, event or
arrangement which may hereafter give rise to any Liabilities not in the ordinary
course of business. Nonetheless, intercreditor obligations to the
Company shall be assumed and not be deemed waive or discharged.
2.16 Operations of the
Corporations. Except as set forth on Schedule 2.16 hereto,
from December 31, 2007 through the Closing Date, each of the Corporations have
not and will not have:
(a) incurred
any indebtedness or borrowed money;
(b) declared
or paid any dividend or declared or made any distribution of any kind to any
shareholder, or made any direct or indirect redemption, retirement, purchase or
other acquisition of any shares in its capital stock that would otherwise result
in any kind of charge or reduction of capital of any of the Corporations or
otherwise, designated, authorized or issued or agreed to issue any securities or
preferred securities or derivative securities (other than amounts in
dispute, that may be owed by Earth Leasing to certain subscribers for
its preferred stock as dividends);
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(c) made
any loan or advance to any shareholder, officer, director, employee, consultant,
agent or other representative or made any other loan or advance otherwise than
in the ordinary course of business;
(d) except
in the ordinary course of business, incurred or assumed any indebtedness or
liability (whether or not currently due and payable);
(e) disposed
of any assets of the Corporations except sales of inventory in the ordinary
course of business, except as described in Schedule
2.16;
(f) materially
increased the annual level of compensation of any executive employee of the
Corporations;
(g) increased,
terminated, amended or otherwise modified any plan for the benefit of employees
of the Corporations;
(h) issued
any equity securities or rights to acquire such equity securities;
or
(i) except
in the ordinary course of business, entered into or modified any contract,
agreement or transaction.
2.17 Periodic
Reports. EBOF is current in the filing of all forms or reports
with the Securities and Exchange Commission (“SEC”), and has been a
reporting company under the Exchange Act. All such reports and
statements filed by the Seller with the SEC (collectively, “SEC Reports”) did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstance under which they were made, not
misleading.
2.18 Full
Disclosure. No representation or warranty by the Company or
the EBOF Sellers in this Agreement or in any document or schedule to be
delivered by them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished by the Company or the EBOF Sellers
pursuant hereto or in connection with the negotiation, execution or performance
of this Agreement contains or will contain any untrue statement of a material
fact or omits or will omit to state any fact necessary to make any statement
herein or therein not materially misleading or necessary to a complete and
correct presentation of all material aspects of the business of the
Company and its Subsidiaries.
2.19 Environmental Matters.
(a) Except
as set forth on Schedule 2.19(a),
each Corporation is and has been in material compliance with all applicable
Environmental Laws and Environmental Permits, and no material capital
expenditures are required or reasonably anticipated to maintain compliance with
Environmental Laws or Environmental Permits.
(b) Each
Corporation has obtained, currently maintains and except as set forth on Schedule 2.19(b), is
in material compliance with all Permits that are required pursuant to any
applicable Environmental Law for the occupation of its facilities and the
operation of its business (“Environmental
Permits”) and the proposed transaction does not require the consent or
pre-approval of any Governmental Body with regard to such Environmental
Permits. All such Environmental Permits are set forth on Schedule
2.19(b).
(c) Except
as set forth on Schedule 2.19(c),
none of the Corporations has received any written or oral notice or report or
other information with regard to any actual or alleged violation of any
Environmental Law by any Corporation, or any Liabilities or potential
Liabilities, including any
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investigatory,
remedial or corrective obligations, relating to any Corporation or their
respective current or former facilities arising under any applicable
Environmental Law, and to the knowledge of the Corporations, no
notice or report is threatened with regard to any actual or alleged violation of
any Environmental Law by any Corporation, or any Liabilities or potential
Liabilities.
(d) Except
as set forth on Schedule 2.19(d),
none of the Corporations has treated, stored, disposed of, arranged for or
permitted the disposal of, transported, handled or released any substance,
including any Hazardous Substance, in a manner that has given or would
reasonably be expected to give rise to any Liability, including any Liability
for response costs, corrective action costs, personal injury, property damage,
natural resources damages or attorney fees, pursuant to any applicable
Environmental Law, and each Corporation has, at all times, handled, stored and
transferred Hazardous Substances in material compliance with all Applicable
Laws.
(e) Except
as set forth on Schedule 2.19(e),
none of the Corporations has caused any releases of any Hazardous Substances at,
from, in, to, on, or under any property or facility, except in compliance with
applicable Environmental Laws or Environmental Permits, and no contamination in,
on, about, or migrating to or from any of the properties owned by any
Corporation or properties formerly leased or owned by any Corporation by such
Hazardous Substances exists that might give rise to any valid claim against any
Corporation.
(f) Except
as set forth on Schedule 2.19(f),
there are no current or historic facts, circumstances or conditions arising out
of or relating to the operations of the Corporations or real property currently
or formerly owned or leased by any Corporation that could result in any
Corporation incurring Liability under any Environmental Laws.
(g) There
have been no environmental investigations, studies, audits, tests, reviews or
other analyses or reports prepared by, on behalf of, or which are in the
possession of any Corporation, or any material documentation or correspondence
related to any liabilities under Environmental Laws, which have not been
delivered to PNG prior to the Closing.
SECTION
3. REPRESENTATIONS AND WARRANTIES OF PNG
PNG hereby represents and warrants to
the Seller, as follows:
3.1 Organization and Good
Standing. PNG is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Nevada. PNG has the corporate power to own its own property and to
carry on its business as now being conducted and is duly qualified to do
business in any jurisdiction where so required except where the failure to so
qualify would have no material negative impact.
3.2 PNG
Capitalization. As of the date of this Agreement, PNG is
authorized to issue 50,000,000 shares of PNG Common Stock, $.001 par value per
share. An aggregate of 418,309 shares of PNG Common Stock are issued and
outstanding, in addition to (a) an aggregate of 756,325 shares issuable upon
conversion of the Black Forest Fund Note and (b) an aggregate of 1,900,000
shares issuable upon conversion of the EBOF Note (in each case, plus additional
shares issuable upon conversion of interest or as maybe adjusted from time to
time as provided therein). No other shares of PNG Common Stock are
reserved for issuance pursuant to any convertible securities, options or
warrants.
3.3 PNG Balance Sheet; Assets
and Liabilities.
(a) The
Form 10KSB/A of PNG for the fiscal year ended December 31, 2007 includes the
audited balance sheet, statement of operations and statement of cash flows of
PNG as at December 31, 2007
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and for
the fiscal year then ended (the “PNG 2007 Audited Financial
Statements”). The Form 10QSB/A of PNG for the quarter ended
March 31, 2008, includes the unaudited balance sheet, statement of operations
and statement of cash flows of PNG as at March 31, 2008 and for the three months
then ended (the “PNG 2008
Financial Statements”). Except as set forth on the PNG Balance
Sheet as at March 31, 2008 or otherwise disclosed on Schedule 3.4 or Section 5.6 herein as
at March 31, 2008 and for all periods subsequent thereto, PNG has no other
assets and has incurred no other liabilities, debts or obligations, whether
fixed, contingent or otherwise required to be set forth on a balance sheet
prepared in accordance with GAAP. The books of account and other
financial records of PNG are in all respects complete and correct in all
material respects and are maintained in accordance with good business and
accounting practices.
(b) PNG
has no operating assets or liabilities, and has not conducted any trade or
business activities whatsoever, other than as disclosed in the foregoing
financial statements and other reports on Form 8-K filed to date.
3.4 No Material Adverse
Changes. Since
March 31, 2008 and other than as relates to the Settlement Agreement, the EBOF
Note, the Black Forest Note or as otherwise contemplated with this
Agreement:
(a) except
for indebtedness of under $15,000 that will be outstanding as at the Closing
Date or as otherwise required in connection with the Credit Agreement Closing,
the Black Forest Note and EBOF Note as specifically provided for herein in order
to facilitate the Closing conditions, and legal/accounting costs, there has not
been any liabilities or other indebtedness incurred by PNG;
(b) there
has not been any material adverse changes in the financial position of PNG
except changes arising in the ordinary course of business, which changes will in
no event materially and adversely affect the financial position of PNG, and will
be consistent with the representations made by PNG hereunder.
(c) there
has not been any material damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of PNG whether or not covered by insurance;
(d) there
has not been any sale of material asset (other than in the ordinary course of
business) or any mortgage pledge by PNG of any properties or assets;
or
(e) there
has not been adoption or modification of any pension, profit sharing,
retirement, stock bonus, stock option or similar plan or
arrangement.
(f) there
has not been any loan or advance to any shareholder, officer, director,
employee, consultant, agent or other representative or made any other loan or
advance otherwise than in the ordinary course of business;
(g) there
has not been any increase in the annual level of compensation of any executive
employee of PNG;
(h) except
in the ordinary course of business, PNG has not entered into or modified any
contract, agreement or transaction; and
(i) PNG
has not issued any equity securities or rights to acquire equity
securities.
3.5 Taxes. PNG
has timely filed all material tax, governmental and/or related forms and reports
(or
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extensions
thereof) due or required to be filed and has paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date, and
there are no deficiencies outstanding.
3.6 Compliance with
Laws. PNG has complied with all federal, state, county and
local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, which, if not
complied with, would materially and adversely affect the business of PNG or the
trading market for the PNG Shares, and there are no outstanding, pending or
threatened stop orders or other actions or investigations relating
thereto.
3.7 Actions and
Proceedings. PNG is not a party to any material pending
litigation or, to its knowledge, any governmental proceedings are threatened
against PNG, other than as relates to the Settlement Agreement.
3.8 Periodic
Reports. PNG is current in the filing of all quarterly or
annual financial or reports with the SEC, and has been a reporting company under
the Exchange Act. All such SEC Reports and statements filed by PNG
with the SEC did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstance under which they were made, not
misleading.
3.9 Disclosure. PNG
has (and at the Closing it will have) disclosed in writing to the Seller all
events, conditions and facts materially affecting the business, financial
conditions or results of operation of PNG all of which have been set forth
herein. PNG has not now and will not have, at the Closing, withheld
disclosure of any such events, conditions, and facts which they have knowledge
of or have reasonable grounds to know may exist.
3.10 Access to
Records. The corporate financial records, minute books, and
other documents and records of PNG have been made available to the Seller and
Company prior to the Closing hereof.
3.11 No
Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
presuming compliance with the Settlement Agreement:
(a) violate
any provision of the Articles of Incorporation or By-Laws of PNG;
(b) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which PNG is a party or by
or to which it or any of its assets or properties may be bound or
subject;
(c) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon, PNG or upon the
securities, properties or business to PNG; or
(d) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein.
3.12 Brokers or
Finders. No broker's or finder's fee will be payable by PNG in
connection with the transactions contemplated by this Agreement, nor will any
such fee be incurred as a result of any actions of PNG.
3.13 Authority to Execute and
Perform Agreements. PNG has the full legal right and power and
all authority and approval required to enter into, execute and deliver this
Agreement and to perform fully its
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obligations
hereunder. This Agreement has been duly executed and delivered and is
the valid and binding obligation of PNG enforceable in accordance with its
terms, except as may be limited by bankruptcy, moratorium, insolvency or other
similar laws generally affecting the enforcement of creditors'
rights. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and the performance by PNG
of this Agreement, in accordance with its respective terms and conditions will
not:
(a) require
the approval or consent of any governmental or regulatory body or the approval
or consent of any other person;
(b) conflict
with or result in any breach or violation of any of the terms and conditions of,
or constitute (or with any notice or lapse of time or both would constitute) a
default under, any order, judgment or decree applicable to PNG, or any
instrument, contract or other agreement to which PNG is a party or by or to
which PNG is bound or subject; or
(c) result
in the creation of any lien or other encumbrance on the assets or properties of
PNG.
3.14 Full
Disclosure. No representation or warranty by PNG in this
Agreement or in any document or schedule to be delivered by them pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished by PNG pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to complete and correct presentation of all material aspects of the business of
PNG. Notwithstanding the foregoing, PNG makes no representation with respect to
the value of Exchange Shares or the Prospects of PNG’s business.
SECTION
4. CONDITIONS PRECEDENT TO CLOSING
4.1 Conditions Precedent to the
Obligations of the Seller. All obligations of the Seller
under this Agreement are subject to the fulfillment, prior to or as of the
Closing Date, as indicated below, of each of the following conditions; any one
of which may be waived at Closing by the Seller or, upon agreement of the
parties, be tendered as a post Closing delivery at such times agreed
to by the parties:
(a) The
representations and warranties by or on behalf of PNG contained in this
Agreement or in any certificate or document delivered by PNG pursuant to the
provisions hereof shall be true in all material respects at and as of Closing
Date as though such representations and warranties were made at and as of such
time.
(b) PNG
shall have performed and complied in all material respects, with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by it prior to or at the Closing, including, without
limitation, all of the covenants and agreements of PNG to Seller set forth in
Section 5.6 of
this Agreement.
(c) On
the Closing Date, an executive officer of PNG shall have delivered to the Seller
a certificate, duly executed by such Person and certifying that to the best of
such Person’s knowledge and belief, the representations and warranties of PNG
set forth in this Agreement are true and correct.
(d) On
or before the Closing, the Board of Directors of PNG shall have approved, in
accordance with Nevada Revised Statutes, the execution, delivery and performance
of this Agreement and the consummation of the transaction contemplated herein
and authorized all of the necessary and proper
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action to
enable PNG to comply with the terms of the Agreement.
(e) At
the Closing, all instruments and documents delivered to the Seller pursuant to
provisions hereof shall be reasonably satisfactory to legal counsel for the
Seller.
(f) The
Exchange Shares will be duly authorized, validly issued, fully paid and
non-assessable under the Nevada General Corporation Law and will be issued in a
non-public offering and exempt merger transaction in compliance with all federal
and state securities laws, bearing a restrictive legend, as is more fully set
forth herein.
(g) PNG
shall have issued to the Seller the PNG Common Stock comprising the Exchange
Shares, provided that any or all of such shares may be held back in escrow for
the Seller pending satisfaction of any post closing delivery
requirements.
(h) PNG
shall have delivered to the Seller all other documents,
certificates, instruments or writings reasonably requested by the Seller in
connection herewith.
4.2 Conditions Precedent to the
Obligations of PNG. All obligations of PNG under this
Agreement are subject to the fulfillment, prior to or at Closing, of each of the
following conditions (any one of which may be waived at Closing by PNG) upon
agreement of the PNG, be tendered as a post Closing delivery at such
times as set forth by PNG:
(a) The
representations and warranties by the Company, Applied LNG and the EBOF Sellers
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) Seller
shall have delivered an irrevocable stock power in respect of the Company Shares
and, an amendment to the Operating Agreement, each duly executed so as to make
PNG the sole member of the Company (provided that such Company Shares may remain
subject to a pledge in favor of the Collateral Agent) and the Company and the
EBOF Sellers shall have performed and complied with, in all material respects,
with all covenants, agreements, and conditions set forth in, and shall have
executed and delivered all documents required by this Agreement and the
Settlement Agreement, to be performed or complied or executed and delivered by
them prior to or at the Closing; provided, however, that, the parties agree
hereby to make any modification to the internal structure of EBOF Sellers and
the Corporations as necessary as determined by PNG in order to create a
favorable tax structure for the Exchange Share issuances.
(c) Executive
officers of the EBOF Sellers shall have delivered to PNG a certificate, duly
executed by such Persons and certifying, that to the best of such Person’s
knowledge and belief, and after due inquiry, the representations and warranties
of the Company set forth in this Agreement are true and correct in all material
respects and do not omit to state any material facts or information as of the
Closing Date.
(d) The
EBOF Sellers shall have delivered to PNG copies of the resolutions or a written
action of the Board of Directors of the EBOF Sellers authorizing the execution
and delivery by them and the Company (and each Subsidiary that is a Party) of
this Agreement, Settlement Agreement, Voting Proxy, and each of the other
transaction documents to which the EBOF Sellers are a party, and the
consummation of the transactions contemplated hereby and thereby, certified by
an authorized officer of the EBOF Sellers.
(e) The
EBOF Sellers and each of the Corporations shall have delivered a Certificate of
Good Standing and existence and not be in arrears or in danger of default or
dissolution under any state
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authorization
statute where organized.
(f) The
Company shall have delivered to PNG copies of the resolutions or a written
action of the Board of Directors of the Company authorizing the execution and
delivery by the Company of this Agreement, and each of the other transaction
documents to which the Company is a party, and the consummation of the
transactions contemplated hereby and thereby, certified by an authorized officer
of the Company.
(g) The
Collateral Agent and Secured Creditors shall have executed, delivered and
entered into the (i) Collateral Agreement with PNG the Company and Subsidiaries,
(ii) the Pledge Agreement with PNG, substantially in the form as annexed hereto
and in such form as reasonably acceptable to PNG, which agreements may, by their
terms, be effective at or immediately after Closing, (iii) the Intercreditor
Agreement with Greenfield and (iv) the Subordination Agreement with Black Forest
Fund.
(h) The
Collateral Agent (or its assigns) shall have entered into the Master Rights
Agreement, substantially in the form as annexed hereto, with make whole
provision, in such form as is acceptable to PNG, with respect to the Fourth
Third Shares and the Fourth Third Shares shall have been, or at Closing be,
issued to Collateral Agent (or its designees).
(i) Black
Forest Fund shall have entered into (A) a Security Agreement with PNG and each
of the Corporations, (B) the Guaranty with the Corporations and (C) the
Subordination Agreement with Collateral Agent described in (g) above, with
respect to the indebtedness owed to them under the Black Forest Note, and shall
have consented to the Share Exchange and transactions relating
hereto.
(j) The
Xxxxxx Group shall have consented to the transactions relating to this Agreement
and entered into the Xxxxxx Release (upon which the issuance of Xxxxxx Shares
may be conditioned at the discretion of PNG), in such form as acceptable to
PNG.
(k) The
Irradia Option shall have been executed and delivered to PNG.
(l) The
Voting Proxy by Seller in favor of one of the Subordinated Creditors, with
respect to the voting rights and related rights of the Exchange Shares shall
have been duly executed and delivered by the parties thereto.
(m) PNG
shall issue 280,000 BCGU Shares to BCGU in exchange for a full release of all
claims and discharge of indebtedness owed to them, in such form as agreed to by
PNG.
(n) The
Seller shall have delivered to PNG (or Collateral Agent at the request of PNG)
the certificates representing the Company Shares duly endorsed (or with executed
stock powers) in the name of PNG, so as to make PNG the sole owner thereof and
delivered certificates representing shares or membership interests to PNG (or to
Collateral Agent pursuant to the Pledge Agreement) evidencing 100% fully diluted
ownership by the Company of such Subsidiaries (with the exception of Series A
Preferred Stock of Earth Leasing).
(o) The
Seller and Company shall have delivered to PNG certified copies of the Company’s
and each Subsidiary’s organizational documents, operating agreements and by-laws
(and any shareholder agreements or similar agreements) certified as of the
Closing Date by the Secretary of the Seller and Company and each respective
subsidiary, in such form as reasonably acceptable by PNG.
(p) The
EBOF Sellers shall have delivered to PNG all minute books, share transfer books,
share certificate books, and corporate certificates, and all corporate seals and
financial and accounting
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books and
records of the Company and each Subsidiary.
(q) Xxxxxx
XxXxxxxxxx III shall have delivered a general release and waiver of
indemnification or cross/counter claims with respect to all matters, claims or
suits, in favor of PNG, the Company, Sellers, Secured Creditors, BCGU, Black
Forest Fund and each of their Affiliates, agents and
representatives.
(r) The
EBOF Sellers shall have delivered to PNG all other Consents set forth on Schedule 2.2 of this
Agreement, and all other creditors or other persons who may have claims against
Seller or the Companies or any related parties hereto, or whose consent may be
required in order for Seller or the Corporations to enter into this Agreement,
shall have delivered consents and or releases in form reasonably satisfactory to
PNG.
(s) The
Seller and the Company shall have delivered to PNG all other documents,
certificates, instruments or writings reasonably requested by PNG in connection
herewith, and evidence reasonably satisfactory to PNG that there are no
contingent tax liabilities that would arise with respect to the transactions
contemplated hereby, to any of the Company or Subsidiaries or PNG.
SECTION
5. COVENANTS
5.1 Corporate Examinations and
Investigations. Prior to the Closing Date, the Parties
acknowledge that they have been entitled, through their employees and
representatives, to make such investigation of the assets, properties, business
and operations, books, records and financial condition of the other as they each
may reasonably require. No investigations, by a party hereto shall,
however, diminish or waive any of the representations, warranties, covenants or
agreements of the party under this Agreement.
5.2 Further
Assurances. The Parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or
obtain the fulfillment of the conditions to the Closing, including, without
limitation, the execution and delivery of any documents or other papers, the
execution and delivery of which are necessary or appropriate to the
Closing. In the event that any one or more closing conditions are not
fulfilled or waived, PNG shall have the right to require said closing and to
withhold issuance of Exchange Shares or other closing deliveries to be made by
it under Section
4.1 above or this Section 5 until
satisfied.
5.3 Confidentiality. In
the event the transactions contemplated by this Agreement are not consummated,
Parties agree to keep confidential any information disclosed to each other in
connection therewith for a period of three (3) years from the date hereof;
provided, however, such obligation shall not apply to information
which:
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(i)
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at
the time of the disclosure was public
knowledge;
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(ii)
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is
required to be disclosed publicly pursuant to any applicable federal or
state securities laws;
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(iii)
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after
the time of disclosure becomes public knowledge (except due to the action
of the receiving party);
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(iv)
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the
receiving party had within its possession at the time of disclosure;
or
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(v)
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is
ordered disclosed by a Court of proper
jurisdiction.
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5.4 Investment
Letters. The EBOF Sellers receiving the Exchange Shares shall
have delivered to PNG an "Investment Letter" agreeing that the shares are being
acquired for investment purposes only and not with the view to public resale or
distribution.
5.6 Pro-Forma
Capitalization.
(a) As
a result of the consummation of the transactions contemplated by this Exchange
Agreement, immediately following the Closing Date the approximate maximum
aggregate number of shares of issued and outstanding PNG Fully-Diluted Common
Stock shall be owned or held by the following stockholder groups:
No. of
Fully-Diluted
Stockholder
Group PNG Common
Shares Percentage
Seller
(Earth Biofuels,
Inc.) 8,900,000* 70.05%
Xxxxxx
Group 1,250,000** 9.84%
Collateral
Agent, Fourth Third, LLC
(Medley) 1,100,000 8.66%
Black
Forest
Fund 756,325*** 5.95%
BCGU,
LLC 280,000 2.20%
Other PNG
stockholders, including the
public 418,309 3.29%
Total: 12,704,634 100%
*
Includes 7,000,000 Exchange Shares as well as 1,900,000 shares of PNG Common
Stock held in escrow and issuable upon due conversion of the EBOF Note (subject
to adjustment as provided therein), intended to repay certain indebtedness of
Seller.
**
Includes 1,000,000 Xxxxxx Shares, the issuance of which is conditioned on
receipt of the Xxxxxx Release in such form as approved by PNG and its
management, and 250,000 shares issued as consideration for the issuance to PNG
of the Irradia Option, as annexed as Exhibit
F.
***
includes 756,325 shares of PNG Common Stock issuable upon conversion of the
Black Forest Note.
(b) At
the Closing, the Exchange Shares to be issued and delivered to the Seller
hereunder will, when so issued and delivered, constitute valid and legally
issued shares of PNG Common Stock, fully paid and non-assessable.
5.8 Boards of
Directors. At
the Closing Date of the Share Exchange, the initial Board of Directors of each
of the Company and its Subsidiaries shall initially consist of a minimum of
three (3) and a maximum of five (5) persons, all of whom shall be Persons
designated by PNG. In addition, as soon as practicable following the
Closing Date, two (2) additional persons acceptable to PNG shall be added as
independent directors (as defined in the Sarbanes Oxley Act of 2002 or rules of
the stock exchange on which PNG trades, including a financial
expert).
5.9 Required Audits and Form 8-K
Registration
Statement. By
not later than the Closing Date, the Company and the Seller shall have caused to
have been delivered to PNG a definitive final draft of a Form 8-K Current Report
to include all appropriate financial statements and disclosures of the business,
management, risk factors, capitalization and principal security holders of PNG
and its the Company subsidiary (after giving effect to the Share Exchange), as
shall be required under the Securities Exchange Act of 1934, as amended (the
“Form 8-K
Report”). PNG shall cause the Form 8-K Report to be filed with
the SEC not later than four (4) Business Days after the Closing
Date. In connection with the foregoing, PNG and the PNG Principal
Stockholder shall assist and cooperate with the Company in complying with the
covenants set forth in this Section
5.9.
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5.10 Indemnification of Officers
and Directors. It is the intention of the Parties that PNG and
the Company shall indemnify its officers and directors to the fullest extent
permitted by Nevada and Delaware law, as applicable (provided that they shall
not be required to indemnify previous officers in connection with liabilities
stemming from activities prior to the Closing). In such connection,
the Parties agree not to amend the certificates of incorporation or by-laws of
either PNG or the Company if such amendment shall have the effect of reducing,
terminating or otherwise adversely affecting the indemnification rights and
privileges applicable to officers and directors of each of PNG and the Company,
as the same are in effect immediately prior to the Closing Date of the Share
Exchange. In such event, the indemnified/aggrieved party shall be entitled to
select their own counsel.
5.11 Expenses. It
is understood and agreed that following the execution of this Agreement, any and
all expenses with respect to any filings, documentation and related matters with
respect to the consummation of the transactions contemplated hereby shall be the
sole responsibility of the Company, and neither PNG nor the PNG Principal
Stockholder shall be responsible for any such expenses or fees associated with
such filings; provided,
however, that PNG and the PNG Principal Stockholder shall fully cooperate
and execute all required documents as indicated.
5.12 Directors and Officers
Insurance. PNG will exercise best efforts to obtain and secure
Directors and Officers insurance covering errors and omissions insurance
covering officers, directors and management of PNG, and the Corporations with
coverage rates of no less than $2,000,000 which amount shall be increase from
time to time as determined by the board.
SECTION
6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Notwithstanding any right of PNG, the
Company or EBOF Sellers to investigate the affairs of the other party and its
shareholders, each party (but no assignee, creditor or other third party) has
the right to rely fully upon representations, warranties, covenants and
agreements of the other party and its shareholders contained in this Agreement
or in any document delivered to one by the other or any of their
representatives, in connection with the transactions contemplated by this
Agreement. All such representations, warranties, covenants and
agreements shall survive the execution and delivery hereof and the closing
hereunder for eighteen (18) months following the Closing (the “General Survival Period”);
provided,
however, that the representations and warranties :
(a) of the EBOF Sellers and the Company
set forth in Sections
2.1 (Organization and Good Standing), 2.2 (Authority) 2.3 (Ownership of
Company Securities) and 2.12 (Broker or
Finders) shall survive the Closing indefinitely,
(b) of the EBOF Sellers and the Company
set forth in Sections
2.7 (Taxes) and 2.19 (Environmental
Matters) shall survive the Closing until 60 days following the expiration of the
applicable statute of limitations with respect to the particular matter that is
the subject matter thereof, and
(c) of PNG set forth in Sections 2.1
(Organization and Good Standing), 2.2 (Authority) and
3.14 (No
Brokers’ Fees)
shall
survive the Closing indefinitely; and, provided further,
however, that the Seller shall comply with all requests of accountants or
auditors from time to time as necessary in connection with due diligence or
reviewing financial statements a business valuation or an audit. This
Agreement is entered into solely for the benefit of the parties
hereby. No person other than the parties hereto are intended as
beneficiaries of any representation, warranty or covenant herewith and no such
person or entity may reasonably rely
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thereon.
SECTION 7. INDEMNIFICATION;
DISPUTE RESOLUTION; NON-COMPETITION
7.1 Indemnification by the
Seller.
(a) From
and after the Closing, the EBOF Sellers shall jointly and severally indemnify
and hold harmless PNG, BCGU, LLC, Xxxx X. Xxxx, Esq., and the Corporations and
each of their Affiliates, directors, officers, members, managers, shareholders
and employees (agents, contractors, sub-contractors and their heirs, legal
representatives, successors and assigns collectively, the “PNG Parties”) from and against
any and all direct or indirect, losses, liabilities, claims, obligations,
deficiencies, demands, judgments, damages, interest, fines, penalties, claims,
suits, actions, causes of action, assessments, awards, costs and expenses
(including reasonable costs of investigation and defense and attorneys’ and
other professionals’ fees), whether or not involving a third party claim
(collectively, “Damages”) arising out of,
resulting from or in any way related to:
(i) a
breach by the Company or the EBOF Sellers of their representations and
warranties contained herein, or
(ii) the
failure to perform or satisfy, when due, any of the covenants and agreements
made by the Company and the EBOF Sellers in this Agreement or in any other
document or certificate delivered by the Company or the EBOF Sellers at the
Closing pursuant hereto.
(b) Notwithstanding
the foregoing, the joint and several indemnification obligations of the EBOF
Sellers under Section
7.1(a)(i) above shall (i) only arise if a claim for Damages shall be made
in writing by one or more PNG Parties to the Seller prior to the expiration of
the General Survival Period: provided,
however, in the case of Damages related to a breach of
representations and warranties for which, pursuant to Section 6, the
survival period for such representation and warranty is longer than the General
Survival Period, a claim for Damages may be made at any time prior to the
expiration of the applicable representation and warranty, and (ii) only be
applicable to Damages incurred by PNG Parties in excess of $100,000 (the “Indemnity
Floor”). Notwithstanding anything to the contrary set forth in
this Agreement, any Damages with respect to an indemnification claim by a PNG
Party for Damages arising from any breach (or alleged breach) of any
representation and warranty described in Section 6(a) or (b) of this Agreement
shall not be subject to the Indemnity Floor. There shall be no time
limitation with respect to the matters contemplated by Section 7.1(a)(ii)
above, and such indemnity obligations shall survive indefinitely. Any
payment made to any PNG Parties by the Seller pursuant to the indemnification
obligations under this Section 7.1 shall
constitute a reduction in value of the Share Exchange paid pursuant to this
Agreement. Notwithstanding anything to the contrary herein, Seller
and its affiliates may not seek and hereby forever waive any rights relating to
indemnification or contribution from, or the right to assert cross claims
against, any of the Corporations or any other PNG Party, for any action or claim
or other Damages relating to the Company or Subsidiaries or the related
businesses initiated by the Xxxxxx Group, and Releasing Creditors (or its
affiliates) or any other third parties, in each case whether such right to
indemnification, cross claim or counterclaim or affirmative defense arises under
contract law, common law, the rules of equity, state law, federal law, corporate
law, or the organizational documents or operating agreement of any of the
Company or Subsidiaries, all of which are hereby waived and foregone. Nothing
herein shall be deemed a limitation on, or discharge of, the responsibilities or
liabilities of EBOF Sellers or other subsidiaries of EBOF Sellers with respect
to intercompany trade payables owed to the Company or any other PNG Party,
whether before or after the Closing Date.
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(c) In
the event that any claim for Damages shall be asserted against any of PNG
Parties for which the EBOF Sellers are liable to indemnify against pursuant to
this Section
7.1, the EBOF Sellers shall have the sole right to conduct, at their
expense, the defense of any and all such claims with counsel of their choosing,
and shall have the sole right to effect any financial settlement of any such
claims for Damages; provided,
however, that if any such settlement would result in any injunction or
restrictions on the Business or any other activities of any of PNG Parties, or
otherwise require any of PNG Parties to pay any ongoing royalties or other
payments to any Person, no such settlement may be effected by the Seller without
the prior written consent of the affected PNG Party or Parties.
7.2 Indemnification by
PNG.
(a) From
and after the Closing, PNG shall indemnify and hold harmless the Seller, BCGU
Xxxx X. Xxxx, Esq., and their Affiliates from and against any and all direct
Damages arising out of, resulting from or in any way related to:
(i) a
material breach by PNG of its representations and warranties contained herein,
or
(ii) the
failure to perform or satisfy, when due, any of the covenants and agreements
made by PNG in this Agreement or in any other document or certificate delivered
by PNG at the Closing pursuant hereto.
(b) In
the event that any claim for Damages shall be asserted against the Seller or its
Affiliates for which PNG is liable to indemnify against pursuant to this Section 7.2, PNG
shall have the sole right to conduct, at its expense, the defense of any and all
such claims with counsel of their choosing, and shall have the sole right to
effect any financial settlement of any such claims for Damages; provided,
however, that if any such settlement would result in any injunction or
restrictions on any of the Seller or their Affiliates, or otherwise require any
of such Persons or their Affiliates to pay any ongoing royalties or other
payments to any other Person, no such settlement may be effected by PNG without
the prior written consent of the board of directors of the Seller.
(c) Notwithstanding
the foregoing, the indemnification obligations of PNG under Section 7.2(a)(i)
above shall only arise if a claim for Damages shall be made in writing by the
Seller to PNG prior to the expiration of the General Survival Period; provided,
however, in the case of Damages related to a breach of
representations and warranties for which, pursuant to Section 6, the survival
period for such representation and warranty is longer than the General Survival
Period, a claim for Damages may be made at any time prior to the expiration of
the applicable representation and warranty. Notwithstanding anything to the
contrary herein, under no circumstances shall PNG, the Company or any Subsidiary
be required to indemnify set off or defend, Seller or any of its executives
(past present or future) for any action relating to the Company or Subsidiaries
initiated by third parties or creditors, in each case whether such right to
indemnification, cross claim or counterclaim or affirmative defense arises under
the Exchange Shares, the EBOF Note, contract law, common law, state law, federal
law, corporate law, or the organizational documents or operating agreement of
any of the Company or Subsidiaries.
7.3 Resolution of
Disputes. Except
as otherwise provided in this Agreement, any dispute arising under this
Agreement which cannot be resolved among the Parties shall be submitted to final
and binding arbitration in accordance with the then prevailing rules and
regulations of the American Arbitration Association (the “AAA”), located in New York,
New York. There shall be three arbitrators, one selected by the
claimant, one selected by the respondent and the third arbitrator selected by
the AAA. The decision and award of the arbitrators shall be final and
binding upon all Parties and may be enforced in any federal or state court of
competent jurisdiction. Service of process on any one or more
Parties in
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connection
with any such arbitration may be made by registered or certified mail, return
receipt requested or by email or facsimile transmission.
SECTION
8. MISCELLANEOUS
8.1 Waivers. The
waiver of a breach of this Agreement or the failure of any party hereto to
exercise any right under this Agreement shall in no way constitute waiver as to
future breach whether similar or dissimilar in nature or as to the exercise of
any further right under this Agreement.
8.2 Amendment. This
Agreement may be amended or modified only by an instrument of equal formality
signed by the Parties or the duly authorized representatives of the respective
Parties.
8.3 Assignment. This
Agreement is not assignable except by operation of law.
8.4 Notice. Until
otherwise specified in writing, the mailing addresses and fax numbers of the
Parties of this Agreement shall be as follows:
To: PNG:
PNG Ventures, Inc.
0000 Xxxxx xxx Xxxxx, #
000
Xxxxxxxx, Xxxxxxxxxx
00000
Attention: Xxxxx Xxxxxx
Tel. (000) 000-0000
XXxxxxx@xxxxxxxxxxxxxxx.xxx
with a
copy, for information to counsel for BCGU:
Xxxxxxx Xxxx, LLP
0000 Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx,
Esq.
(000) 000-0000
email: xxxxx@xxxxxxxxxxx.xxx
To: the Company
AND/OR the Seller:
0000 Xxxx Xx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Tel. (000) 000-0000
Fax. (000) 000-0000
XXxxxxx@xxxxxxxxxxxxxxx.xxx
with a
copy to:
Sichenzia Xxxx Xxxxxxxx
Xxxxxxx
Counsel to Earth Biofuels, Inc., Earth
LNG, Inc. and Applied LNG
00 Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx,
Partner
Tel. (000) 000-0000
Fax. (000) 000-0000
email: xxxxxxxxxx@xxxx.xxx
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Any
notice or statement given under this Agreement shall be deemed to have been
given if delivered by national courier service with signature confirmation of
receipt, fax with electronic delivery confirmation or express, priority or
registered mail with delivery confirmation, addressed to the other party at the
address indicated above or at such other address which shall have been furnished
in writing to the addressor, or if such delivery is refused by a
party.
8.5 Governing
Law. This Agreement shall be construed, and the legal
relations between the Parties determined, in accordance with the laws of the
State of Delaware, thereby precluding any choice of law rules which may direct
the application of the laws of any other jurisdiction.
8.6 [Omitted]
8.7 Entire
Agreement. This Agreement (including the Schedules to be
attached hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the Parties with respect to the transactions contemplated
hereby, and supersedes all prior agreements, written or oral, with respect
hereof.
8.8 Headings. The
headings in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
8.9 Severability of
Provisions. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or provision of this
Agreement shall in no way affect the validity or enforcement of any other
provision or any part thereof.
8.10 Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed, shall constitute an original copy hereof, but all of which together
shall consider but one and the same document.
8.11 Binding
Effect. This Agreement shall be binding upon the Parties
hereto and inure to the benefit of the Parties, their respective heirs,
administrators, executors,
successors
and assigns.
8.12 Facsimile
Signatures. The
Parties hereby mutually agree that this Agreement may be executed by facsimile
signatures of any one or more Parties, each of which shall have the same legal
and binding force and effect as ribbon original signatures.
8.13 Press
Releases. The PNG shall approve any press release distributed
by Seller in connection with this Agreement prior to its
release. Notwithstanding the foregoing, no advanced review or
oversight of any current Report on Form 8-K to be filed as a result of this
Share Exchange requires consent by any other party.
[the
balance of this page intentionally left blank – signature pages
follow]
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[Counterpart
Signature page to Share Exchange Agreement]
IN WITNESS WHEREOF, the
Parties have executed this Agreement on the date first above
written.
PNG:
PNG VENTURES, INC.
(a Nevada corporation)
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chief Executive
Officer
EBOF SELLERS:
EARTH BIOFUELS, INC.
(a Delaware corporation)
By: /s/ Xxxxxx X. XxXxxxxxxx, III
Name: Xxxxxx X. XxXxxxxxxx,
III
Title:
Chief Executive Officer
EARTH LNG,
INC.
(a Texas corporation)
By: /s/ Xxxxxx X. XxXxxxxxxx, III
Name: Xxxxxx X. XxXxxxxxxx
III
Title: Chief Executive
Officer
COMPANY:
NEW EARTH LNG, LLC
(a Delaware limited liability
company)
By Earth LNG, Inc., as sole
member
By: /s/ Xxxxxx X. XxXxxxxxxx, III
Name: Xxxxxx X. XxXxxxxxxx,
III
Title: Chief Executive
Officer
SUBSIDIARY:
APPLIED LNG TECHNOLOGIES USA,
LLC.
(a Delaware limited liability
company)
By New Earth LNG, LLC
By Earth LNG, Inc., as sole
member
By : /s/ Xxxxxx X. XxXxxxxxxx, III
Name: Xxxxxx
X. XxXxxxxxxx III
Title: Chief Executive
Officer
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SCHEDULES
Seller/Company
2.1
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Organizational
Matters
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2.2
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Required
Consents
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2.3
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Capitalization;
Ownership Rights
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2.6
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Material
Adverse Changes
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2.8
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Compliance
with Laws
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2.10
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Actions
and Proceedings
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2.11
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Material
Agreements
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2.13
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List
of Real Estate Owned and List of
Leases
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2.14
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List
of exceptions to the Tangible Assets on balance
sheets.
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2.15
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List
of undisclosed Liabilities of each
Corporation
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2.16
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List
of Assets Disposed of Other Than In Ordinary Course of
Business
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2.19(a)-(f)
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Environmental
Disclosures
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PNG
SCHEDULES
3.4
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Assets,
Liabilities and Operations
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EXHIBITS
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Exhibit A
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Form
of Pledge Agreement between PNG and Fourth Third, L.L.C. as Collateral
Agent with
respect to Pledge of Company Shares
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Exhibit B
-
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Form
of Subordination Agreement between Fourth Third, L.L.C. as Collateral
Agent and Black
Forest Fund with respect to Black Forest Note
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Exhibit C
-
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Form
of Voting Proxy by Seller in favor of the agent for the Subordinated
Creditors of Seller
and certain others
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Exhibit D
-
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Form
of Release, Consent and Acknowledgement of Subordinated Creditors in favor
of PNG
and Company
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Exhibit E
-
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Form
of Master Rights Agreement with respect to shares of PNG Common Stock
issued to Fourth
Third, L.L.C.
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Exhibit F
-
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Form
of Irradia Option
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Exhibit G
-
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Operating
Agreement of New Earth LNG, LLC, a Delaware limited liability
company.
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