THIS AGREEMENT (hereinafter referred to as the “Agreement”), is entered into as of this 14th day of April, 2010, by and between ONE Bio, Corp., a Florida corporation (the “ONE” or the “Company”) and Green Planet Bioengineering Co., Ltd., a Delaware...
Exhibit
10.01
THIS AGREEMENT (hereinafter
referred to as the “Agreement”), is entered into
as of this 14th day of April, 2010, by and between ONE Bio, Corp., a Florida
corporation (the “ONE”
or the “Company”) and
Green Planet Bioengineering Co., Ltd., a Delaware corporation
(“GP”) (collectively
referred to as the “Parties” and individually as
a “Party”).
W I T N E
S S E T H:
WHEREAS, on June 17, 2009,
ONE and GP entered into a Preferred Stock Purchase Agreement (the
“GP Preferred Stock Purchase
Agreement”) pursuant to which, among other things, (i) ONE acquired from
GP 30,239 shares of GP preferred stock (“GP Preferred Stock”), (ii) ONE agreed
to pay to GP for said shares of GP Preferred Stock $15,000,000 which was paid by
ONE through the issuance to GP of 10,329,551 shares of ONE common
stock.
WHEREAS, effective as of
June17, 209, ONE and GP entered into an Amended and Restated the GP Preferred
Stock Purchase Agreement (“Amended and Restated GP Preferred
Stock Agreement”) pursuant to which, among other things,
(i) the number of GP Preferred Stock purchased by ONE was reduced
from 30,239 GP preferred shares to 5,101 GP preferred shares and (ii) the
purchase price of the GP Preferred Stock was reduced from $15 million to $5
million, which was paid by ONE through the issuance to GP of
1,004,808 shares of ONE’s common stock. All other terms and conditions of
the GP Preferred Stock Purchase Agreement remained
unchanged.
WHEREAS, the Parties desire to
(i) cancel the Amended and Restated GP Preferred Stock Agreement, (ii) to have
ONE return to GP the 5,101shares of Green Planet preferred stock that were
issued to ONE pursuant to the Amended and Restated GP Preferred Stock Agreement,
and (iii) to have Green Planet return to ONE the 1,004,808 shares of ONE
common stock that we issued to Green Planet pursuant to the Amended and Restated
GP Preferred Stock Agreement.
NOW THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
ARTICLE
I
CANCELLATION
OF THE AMENDED AND RESTATED THE GP PREFERRED STOCK PURCHASE
AGREEMENT
1.1 The
Parties hereby agree that effective as of the date of April 14, 2010, (i) the
Amended and Restated the GP Preferred Stock Purchase Agreement is terminated and
cancelled and of no force and effect, (ii) all
rights and obligations of each respective Party to the other Parties under
the Amended and Restated the GP Preferred Stock Purchase Agreement are hereby terminated and of no further force and
effect, (iii) ONE agrees to immediately return to GP the 5,101shares of
Green Planet preferred stock that were issued to ONE pursuant to the Amended and
Restated GP Preferred Stock Agreement, and (iv) Green Planet agrees to
immediately return to ONE the 1,004,808 shares of ONE common stock that we
issued to Green Planet pursuant to the Amended and Restated GP Preferred Stock
Agreement.
1.2 The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices of
Xxxxxxxx & Xxxx, LLP, simultaneously with the execution of this Agreement
(the “Closing
Date”).
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ARTICLE
II
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF GP
As an
inducement to enter into this Agreement, and to obtain the reliance of ONE, GP
represents, warrants and covenants as follows:
2.1 Organization. GP
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Delaware. A certified copy of the Articles
of Incorporation and bylaws of GP are attached hereto as Schedule
2.1. GP has the power and is duly authorized, qualified, franchised,
and licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, including
qualification to do business as a foreign corporation in jurisdictions in which
the character and location of the assets owned by it or the nature of the
business transacted by it requires qualification. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement (“Transactions”) in accordance
with the terms hereof will not, violate any provision of GP’s organizational
documents. GP has taken all action required by laws, its articles of
incorporation, certificate of business registration, or otherwise to authorize
the execution and delivery of this Agreement. GP has full power, authority, and
legal right and has taken or will take all action required by law, its
Certificate of Incorporation, and otherwise to consummate the
Transactions. GP shall receive a certificate of good standing from
the Secretary of State of the State of Delaware, dated as of a date within ten
days prior to the Closing Date certifying that GP is in good standing as a
corporation in the State of Delaware.
2.2 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the Transactions will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust, or other material contract, agreement, or instrument to
which GP is a party or to which any of its properties or operations are
subject.
2.3 Approval of
Agreement. The board of directors of GP (the “GP Board”) has authorized the
execution and delivery of this Agreement by GP and has approved the transactions
contemplated herein. Copies of said consent resolutions are attached
hereto as Schedule 2.3.
ARTICLE
III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF
ONE
As an
inducement to enter into this Agreement, and to obtain the reliance of GP, ONE
represents and warrants as follows:
3.1 Organization. ONE
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Florida. A certified copy of the Articles of
Incorporation and bylaws of ONE are attached hereto as Schedule
3.1. ONE has the power and is duly authorized, qualified, franchised,
and licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, including
qualification to do business as a foreign corporation in jurisdictions in which
the character and location of the assets owned by it or the nature of the
business transacted by it requires qualification. The execution and
delivery of this Agreement does not, and the consummation of the Transactions in
accordance with the terms hereof will not, violate any provision of ONE’s
organizational documents. ONE has taken all action required by laws,
its articles of incorporation, certificate of business registration, or
otherwise to authorize the execution and delivery of this Agreement. ONE has
full power, authority, and legal right and has taken or will take all action
required by law, its Certificate of Incorporation, and otherwise to consummate
the Transactions. ONE shall receive a certificate of good standing
from the Secretary of State of the State of Florida, dated as of a date within
ten days prior to the Closing Date certifying that ONE is in good standing as a
corporation in the State of Florida.
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3.2 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the Transactions will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust, or other material contract, agreement, or instrument to
which ONE is a party or to which any of its properties or operations are
subject.
3.3 Approval of
Agreement. The board of directors of ONE (the “ONE Board”) has authorized
the execution and delivery of this Agreement by ONE and has approved the
transactions contemplated herein. Copies of said consent resolutions
are attached hereto as Schedule 3.3.
ARTICLE
IV
INDEMNIFICATION
4.1 Indemnification.
(a) GP
hereby agrees to indemnify ONE and each of its officers and directors from and
against any loss, liability, claim, damage, or expense (including, but not
limited to, any and all expense whatsoever reasonably incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or any
claim whatsoever), to which it or they may become subject arising out of or
based upon any breach by GP of any of its representations, warranties, or
covenants as set forth in this Agreement.
(b) ONE
hereby agrees to indemnify GP and each of its officers and directors from and
against any loss, liability, claim, damage, or expense (including, but not
limited to, any and all expense whatsoever reasonably incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or any
claim whatsoever), to which it or they may become subject arising out of or
based on breach by ONE of any of its representations, warranties, or covenants
as set forth in this Agreement.
ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF ONE
The obligations of ONE under this
Agreement are subject to the satisfaction, at or before the Closing, of the
following conditions:
5.1 Accuracy of Representations;
Performance. The representations and warranties made by GP in
this Agreement were true when made and shall be true as of the Closing Date
(except for changes therein permitted by this Agreement) with the same force and
effect as if such representations and warranties were made at and as of the
Closing Date, and GP shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by GP
prior to or at the Closing.
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5.2 Officer’s
Certificate. ONE shall have been furnished with a certificate
dated the Closing Date and signed by a duly authorized officer of GP confirming
that the conditions set forth in Section 5.1 have been satisfied.
5.3 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the business, operations, financial
condition, or prospects of GP, nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the business, operations, financial condition, or prospects of
GP.
5.4 Good
Standing. ONE shall have received a certificate of good
standing from the (i) Secretary of State of the State of Delaware, dated as of a
date within ten days prior to the Closing Date certifying that GP is in good
standing as a corporation in the State of Delaware.
5.5 Other
Items.
(a) ONE
shall have received such further documents, certificates, or instruments
relating to the transactions contemplated herein as ONE may reasonably request,
including a stock power executed by GP transferring the 1,004,808 shares of
ONE common stock to ONE.
(b) ONE
shall have completed, and shall be satisfied with, in its sole discretion, its
due diligence review of GP.
(c) The
transactions contemplated herein shall have been approved by the GP Board of
Directors.
(d) Any
necessary third-party consents shall be obtained prior to Closing.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF GP
The
obligations of GP under this Agreement are subject to the satisfaction, at or
before the Closing, of the following conditions:
6.1 Accuracy of Representations;
Performance. The representations and warranties made by ONE in
this Agreement were true when made and shall be true as of the Closing Date
(except for changes therein permitted by this Agreement) with the same force and
effect as if such representations and warranties were made at and as of the
Closing Date, and ONE shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by ONE
prior to or at the Closing.
6.2 Officer’s
Certificate. GP shall have been furnished with a certificate
dated the Closing Date and signed by a duly authorized officer of ONE confirming
that the conditions set forth in Section 6.1 have been satisfied.
6.3 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the business, operations, financial
condition, or prospects of ONE nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the business, operations, financial condition, or prospects of
ONE.
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6.4 Good
Standing. GP shall have received a certificate of good
standing from the Secretary of State of the State of Delaware, dated as of a
date within ten days prior to the Closing Date certifying that ONE is in good
standing as a corporation in the State of Delaware.
6.5 Other
Items.
(a) GP
shall have received such further documents, certificates, or instruments
relating to the Transactions as GP may reasonably request, including a stock
power executed by ONE transferring the 5,101 shares of GP preferred stock to
GP.
(b) GP
shall have completed, and shall be satisfied with, in its sole discretion, its
due diligence review of ONE.
(b) The
transactions contemplated herein shall have been approved by ONE's Board of
Directors.
ARTICLE
VII
TERMINATION
7.1 Termination. (a)
This Agreement may be terminated by either the GP Board or the ONE Board at any
time prior to the Closing Date if: (i) there shall be any actual or threatened
action or proceeding before any court or any governmental body which shall seek
to restrain, prohibit, or invalidate the Transaction and which, in the judgment
of such Board of Directors, made in good faith and based on the advice of its
legal counsel, makes it inadvisable to proceed with the exchange contemplated by
this Agreement; or (ii) the transactions contemplated herein are disapproved by
any regulatory authority whose approval is required to consummate such
transactions or in the judgment of such Board of Directors, made in good faith
and based on the advice of counsel, there is substantial likelihood that any
such approval will not be obtained or will be obtained only on a condition or
conditions which would be unduly burdensome, making it inadvisable to proceed
with the exchange. In the event of termination pursuant to this paragraph (a) of
Section 7.1, no obligation, right, or liability shall arise
hereunder.
(b) This Agreement may be terminated at any time prior
to the Closing by action of the ONE Board if GP shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of GP contained herein
shall be inaccurate in any material respect, and, in either case if such failure
is reasonably subject to cure, it remains uncured for seven days after notice of
such failure is provided to GP. If this Agreement is terminated pursuant to this
paragraph (b) of Section 7.1, this Agreement shall be of no further force or
effect, and no obligation, right, or liability shall arise
hereunder.
(c) This Agreement may be terminated at any time prior
to the Closing by action of the GP Board if ONE shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of ONE contained herein
shall be inaccurate in any material respect, and, in either case if such failure
is reasonably subject to cure, it remains uncured for seven days after notice of
such failure is provided to ONE. If this Agreement is terminated
pursuant to this paragraph (c) of Section 7.1, this Agreement shall be of no
further force or effect, and no obligation, right, or liability shall arise
hereunder.
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ARTICLE
VIII
MISCELLANEOUS
8.1 Governing
Law. This Agreement shall be governed by, enforced, and
construed under and in accordance with the laws of the State of Florida, without
regard to its choice of law principles.
8.2 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by prepaid telegram and any such notice or
communication shall be deemed to have been given as of the date so delivered,
mailed, or telegraphed.
8.3 Expenses. Except
as otherwise set forth herein, each Party shall bear its own costs and expenses
associated with the Transactions contemplated by this Agreement.
8.4 Schedules;
Knowledge. Each Party is presumed to have full knowledge of
all information set forth in the other Party’s schedules delivered pursuant to
this Agreement.
8.5 Third Party
Beneficiaries. This contract is solely between ONE and GP and,
except as specifically provided, no director, officer, stockholder, employee,
agent, independent contractor, or any other person or entity shall be deemed to
be a third party beneficiary of this Agreement.
8.6 Entire
Agreement. This Agreement represents the entire agreement
between the Parties relating to the Transaction. There are no other courses of
dealing, understandings, agreements, representations, or warranties, written or
oral, except as set forth herein.
8.7 Survival. The
representations and warranties of the respective Parties shall survive the
Closing Date and the consummation of the Transactions.
8.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original and all of which
taken together will be deemed to constitute one and the same instrument,
notwithstanding that all parties are not signatory to the same
counterpart. The exchange of copies of
this Agreement and of signature pages by electronic mail or facsimile
transmission shall constitute effective execution and delivery of this Agreement
as to the parties and may be used in lieu of the original Agreement for all
purposes. Signatures of the parties transmitted by electronic mail or
facsimile shall be deemed to be their original signatures for all
purposes.
8.9 Amendment or
Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
Party of the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this Agreement may
be amended by a writing signed by all Parties hereto, with respect to any of the
terms contained herein, and any term or condition of this Agreement may be
waived or the time for performance hereof may be extended by a writing signed by
the Party or Parties for whose benefit the provision is intended.
8.10 Further
Assurances. Each Party to this Agreement shall take all such
actions reasonably necessary to effectuate the terms and conditions of this
Agreement and the Transactions set forth herein.
8.11 Assignment. Subject
to any provisions herein to the contrary, this Agreement shall inure to the
benefit of and be binding upon the Parties hereto and their respective legal
representatives, successors and assigns; provided, however, that no Party may
assign this Agreement without the prior written consent of the other
Parties.
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8.12 Severability. In
the event any provision of this Agreement is held to be invalid, illegal or
unenforceable for any reason and in any respect, such invalidity, illegality, or
unenforceability shall in no event affect, prejudice or disturb the validity of
the remainder of this Agreement, which shall remain in full force and effect,
enforceable in accordance with its terms.
[THE
EXECUTIONS ARE ON THE FOLLOWING SIGNATURE PAGE]
[THE
REMAINDER OF THIS PAGE IS BLANK]
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SIGNATURE
PAGE OF THAT CERTAIN AGREEMENT
ENTERED
INTO AS OF APRIL 14, 2010, BY AND BETWEEN
ONE
BIO, CORP. AND GREEN PLANET BIOENGINEERING CO., LTD.
IN WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be executed as of the date first
above-written.
| ONE BIO, CORP. | |||
|
|
By:
|
/s/ Marius Silvasan | |
| Marius Silvasan, CEO | |||
|
GREEN
PLANET BIOENGINEERING CO., LTD.
|
|||
|
|
By:
|
/s/ Xxx Xxxx | |
| Xxx Xxxx, CEO | |||
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