AGREEMENT CONCERNING THE EXCHANGE OF SECURITIES BY AND AMONG GEOBIO ENERGY, INC. AND ENVIROPLASTICS CORPORATION AND THE SECURITY HOLDERS OF ENVIROPLASTICS CORPORATION INDEX
AGREEMENT
CONCERNING
THE EXCHANGE OF SECURITIES
BY
AND AMONG
AND
ENVIROPLASTICS
CORPORATION AND
THE
SECURITY HOLDERS OF ENVIROPLASTICS CORPORATION
INDEX
|
ARTICLE
I – Exchange of Securities
|
2 | |
|
1.1
|
Issuance
of Securities
|
2 |
|
1.2
|
Exemption
from Registration
|
2 |
|
ARTICLE
II – Representations and Warranties of EnviroPlastics
Corporation
|
2 | |
|
2.1
|
Organization
|
2 |
|
2.2
|
Capital
|
2 |
|
2.3
|
Subsidiaries
|
2 |
|
2.4
|
Directors
and Executive Officers
|
2 |
|
2.5
|
Financial
Statements
|
2 |
|
2.6
|
Absence
of Changes
|
3 |
|
2.7
|
Absence
of Undisclosed Liabilities
|
3 |
|
2.8
|
Tax
Returns
|
3 |
|
2.9
|
Investigation
of Financial Condition
|
3 |
|
2.10
|
Intellectual
Property Rights
|
3 |
|
2.11
|
Compliance
with Laws
|
3 |
|
2.12
|
Litigation
|
3 |
|
2.13
|
Authority
|
3 |
|
2.14
|
Ability
to Carry Out Obligations
|
3 |
|
2.15
|
Full
Disclosure
|
3 |
|
2.16
|
Assets
|
3 |
|
2.17
|
Material
Contracts
|
3 |
|
2.18
|
Indemnification
|
3 |
|
2.19
|
Criminal
or Civil Acts
|
3 |
|
2.20
|
Restricted Securities
|
3 |
|
ARTICLE
III – Representations and Warranties of GeoBio Energy,
Inc.
|
4 | |
|
3.1
|
Organization
|
4 |
|
3.2
|
Capital
|
4 |
|
3.3
|
Subsidiaries
|
4 |
|
3.4
|
Directors
and Executive Officers
|
4 |
|
3.5
|
Financial
Statements
|
4 |
|
3.6
|
Financing
|
4 |
|
3.7
|
Absence
of Changes
|
4 |
|
3.8
|
Absence
of Undisclosed Liabilities
|
4 |
|
3.9
|
Tax
Returns
|
4 |
|
3.10
|
Investigation
of Financial Condition
|
4 |
|
3.11
|
Intellectual
Property Rights
|
4 |
|
3.12
|
Compliance
with Laws
|
4 |
|
3.13
|
Litigation
|
4 |
|
3.14
|
Authority
|
4 |
|
3.15
|
Ability
to Carry Out Obligations
|
5 |
|
3.16
|
Full
Disclosure
|
5 |
|
3.17
|
Assets
|
5 |
|
3.18
|
Material
Contracts
|
5 |
|
3.19
|
Indemnification
|
5 |
|
3.20
|
Criminal
or Civil Acts
|
5 |
|
ARTICLE
IV – Covenants Prior to the Closing Date
|
5 | |
|
4.1
|
Investigative
Rights
|
5 |
|
4.2
|
Conduct
of Business
|
5 |
|
4.3
|
Confidential
Information
|
5 |
|
4.4
|
Notice
of Non-Compliance
|
5 |
|
ARTICLE
V – Conditions Precedent to GeoBio Energy, Inc.’
Performance
|
5 | |
|
5.1
|
Conditions
|
5 |
|
5.2
|
Accuracy
of Representations
|
6 |
|
5.3
|
Performance
|
6 |
|
5.4
|
Absence
of Litigation
|
6 |
|
5.5
|
Officer’s
Certificate
|
6 |
|
5.6
|
Corporate
Action
|
6 |
|
5.7
|
Acceptance
of Financial Statements
|
6 |
|
ARTICLE
VI – Conditions Precedent to EnviroPlastics Corporation’s
Performance
|
6 | |
|
6.1
|
Conditions
|
6 |
|
6.2
|
Accuracy
of Representations
|
6 |
|
6.3
|
Performance
|
6 |
|
6.4
|
Absence
of Litigation
|
6 |
|
6.5
|
Officer’s
Certificate
|
6 |
|
6.6
|
Payment
of Liabilities
|
6 |
|
6.7
|
Directors
of GeoBio
|
6 |
|
6.8
|
Officers
of GeoBio
|
6 |
|
ARTICLE
VII – Closing
|
6 | |
|
7.1
|
Closing
|
6 |
|
ARTICLE
VIII – Covenants Subsequent to the Closing Date
|
7 | |
|
8.1
|
Registration
and Listing
|
7 |
|
ARTICLE
IX – Miscellaneous
|
7 | |
|
9.1
|
Captions
and Headings
|
7 |
|
9.2
|
No
Oral Change
|
7 |
|
9.3
|
Non-Waiver
|
7 |
|
9.4
|
Time
of Essence
|
7 |
|
9.5
|
Entire
Agreement
|
7 |
|
9.6
|
Choice
of Law
|
7 |
|
9.7
|
Counterparts
|
7 |
|
9.8
|
Notices
|
7 |
|
9.9
|
Binding
Effect
|
7 |
|
9.10
|
Mutual
Cooperation
|
7 |
|
9.11
|
Finders
|
7 |
|
9.12
|
Announcements
|
8 |
|
9.13
|
Expenses
|
8 |
|
9.14
|
Survival
of Representations and Warranties
|
8 |
|
9.15
|
Exhibits
|
8 |
|
9.16
|
Unwinding, Termination,
Amendment and Waiver
|
8 |
|
Exhibits
|
||
|
1.1
|
EP
Security Holders
|
|
|
1.2
|
EP
Subscription Agreements
|
|
|
2.5
|
Financial
Statements for EP(if available)
|
|
|
2.7
|
EP
Liability Schedule
|
|
|
2.8
|
Provisions
for taxes (if any)
|
|
|
2.16
|
Assets
of EP
|
|
|
2.17
|
Material
Contractsof EP
|
|
|
3.5
|
Financial
Statements for GeoBio
|
|
|
3.8
|
GeoBio provisions for
Tax Returns(if
any)
|
|
|
3.17
|
Material
Contracts for GeoBio
|
|
1
MERGER
BY SHARE EXCHANGE
AGREEMENT
THIS AGREEMENT (“Agreement”)
is made this ___ day of March 2009, by and between GeoBio Energy,
Inc. a Colorado corporation (“GeoBio”),
EnviroPlastics Corporation, a Nevada corporation (“EP”)
and the security holders of EP (the “EP
Security Holders”) who are listed on Exhibit 1.1
hereto.
WHEREAS, GeoBio desires to acquire all
of the issued and outstanding common stock of EP (“EP
Stock”) from the EP Security Holders in exchange for common stock of
GeoBio; and
WHEREAS, all of the EP Security Holders
agree to exchange one hundred percent (100%) of the EP Stock they hold in EP for
such share
amount which equals ninety percent (90%) of the issued and outstanding shares of
GeoBio common stock at the time of the Closing (defined below) of
this Agreement (the “Shares”).
NOW, THEREFORE, in consideration of the
mutual promises, covenants and representations contained herein, the parties
hereto agree as follows:
ARTICLE
I
Exchange
of Securities
1.1 Issuance of Securities.
Subject to the terms and conditions of this Agreement, GeoBio agrees to issue
and exchange the Shares for one hundred percent (100%) of the issued and
outstanding EP Stock held by the EP Security Holders. All GeoBio
Shares will be issued directly to the EP Security Holders on the Closing Date
(as hereinafter defined), pursuant to the schedule set forth in Exhibit 1.1. Upon
Closing (defined in Section 7.1), GeoBio shall issue to the existing EP Security
Holders the Shares (ninety percent (90%) of the issued and outstanding shares of
GeoBio common stock at the time of the Closing (defined below) of this
Agreement).
1.2 Exemption from Registration.
The parties hereto intend that all GeoBio common stock to be issued to the EP
Security Holders shall be exempt from the registration requirements of the
Securities Act of 1933, as amended (the “Securities Act”),
pursuant to Section 4(2) and/or Regulation D of the Securities Act and rules and
regulations promulgated thereunder. In furtherance thereof, each of
the EP Security Holders will execute and deliver to GeoBio subscription
agreements for the Shares, a copy of which is attached as Exhibit 1.2, on the
Closing date of this Agreement (the “Closing
Date”).
ARTICLE
II
Representations
and Warranties of EP
EP hereby represents and warrants to
GeoBio that:
2.1 Organization. EP is a
corporation duly organized, validly existing and in good standing under the laws
of Nevada, has all necessary corporate powers to own its properties and to carry
on its business as now owned and operated by it, and is duly qualified to do
business and is in good standing in each of the states where its business
requires qualification.
2.2 Capital. EP will deliver 100%
of its issued and outstanding stock, subscriptions, options, rights, warrants,
debentures, instruments, convertible securities or convertible preferred stock
and/or common stock equivalents, or other agreements or commitments obligating
EP to issue any additional EP Stock of any class, which shall equal thirty five
million (35,000,000) shares of common stock, on a fully diluted
basis. There shall be no outstanding preferred stock of EP at the
time of the Closing.
2.3 Subsidiaries. EP currently
does not own any subsidiaries.
2.4 Directors and Executive
Officers. The names and titles of the directors and executive officers of
EP are as follows:
|
Name
|
Position
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
Chief
Executive Officer, Director
|
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
President,
Director
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
|
Chief
Operations Officer, Director
|
|
|
▇▇▇▇▇
▇. ▇▇▇▇
|
Secretary,
Director
|
|
2.5 Financial Statements. Unless
otherwise provided herein as Exhibit 2.5, EP
represents that it shall have the ability to provide and shall produce, within
forty-five (45) days of Closing, financial statements consisting of a balance
sheet and a related statements of income and cash flow for (I) the prior two (2)
fiscal years (or for the period since inception of the Company, if less than two
years), (II) for the quarters subsequent to the most recent fiscal year and
(III) for the period subsequent to the most recent quarter if material changes
have occurred (the “EP
Financial
Statements”), which fairly represent the financial condition of EP as of
the respective dates and for the periods involved, and such statements shall be
prepared in accordance with generally accepted accounting principles
(GAAP). The EP Financial Statements shall state Zero Dollars ($0) of
debt-related liabilities.
2
2.6 Absence of Changes. Since
December 31, 2008, there has not been any material change in the financial
condition or operations of EP, except as contemplated by this
Agreement. As used throughout this Agreement, “material”
means: Any change or effect (or development that, insofar as can be
reasonably foreseen, is likely to result in any change or effect) that causes
substantial increase or diminution in the business, properties, assets,
condition (financial or otherwise) or results of operations of a
party. Taken as a whole, material change shall not include changes in
national or international economic conditions or industry conditions generally;
changes or possible changes in statutes and regulations applicable to a party;
or the loss of employees, customers or suppliers by a party as a direct or
indirect consequence of any announcement relating to this
transaction.
2.7 Absence of Undisclosed
Liabilities. As of the Closing Date, EP shall not have any material debt,
liability or obligation of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, that is not reflected in the EP
Liability Schedule, attached as Exhibit
2.7.
2.8 Tax Returns. EP has filed all
federal, state and local tax returns required by law and has paid all taxes,
assessments and penalties due and payable. The provisions for taxes, if any,
reflected in Exhibit
2.8 are adequate for the periods indicated. There are no
present disputes as to taxes of any nature payable by EP.
2.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, GeoBio, its legal counsel and accountants
shall have the opportunity to meet with EP’s accountants and attorneys to
discuss the financial condition of EP during reasonable business hours and in a
manner that does not interfere with the normal operation of EP’s
business. EP shall make available to GeoBio all books and records of
EP.
2.10 Intellectual Property Rights.
EP owns or has the right to use all trademarks, service marks, trade names,
copyrights and patents material to its business.
2.11 Compliance with Laws. To the
best of EP’s knowledge, EP has complied with, and is not in violation of,
applicable federal, state or local statutes, laws and regulations, including
federal and state securities laws, except where such non-compliance would not
have a material adverse impact upon its business or properties.
2.12 Litigation. EP is not a
defendant in any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of EP, threatened against or affecting EP or its business, assets or
financial condition. EP is not in default with respect to any order,
writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality applicable to it. EP is not
engaged in any material litigation to recover monies due to it.
2.13 Authority. The Board of
Directors of EP has authorized the execution of this Agreement and the
consummation of the transactions contemplated herein, and EP has full power and
authority to execute, deliver and perform this Agreement, and this Agreement is
a legal, valid and binding obligation of EP and is enforceable in accordance
with its terms and conditions. A majority of EP Security Holders have
agreed to and have approved the terms of this Agreement and the exchange of
securities contemplated hereby.
2.14 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by EP and the
performance by EP of its obligations hereunder in the time and manner
contemplated will not cause, constitute or conflict with or result in (a) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, instrument, article of incorporation, bylaw,
or other agreement or instrument to which EP is a party, or by which it may be
bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would permit any party to any agreement or
instrument to terminate it or to accelerate the maturity of any indebtedness or
other obligation of EP, or (c) an event that would result in the creation or
imposition of any lien, charge or encumbrance on any asset of EP.
2.15 Full Disclosure. None of the
representations and warranties made by EP herein or in any exhibit, certificate
or memorandum furnished or to be furnished by EP, or on its behalf, contains or
will contain any untrue statement of material fact or omit any material fact the
omission of which would be misleading.
2.16 Assets. EP’s assets shall be
fully included in Exhibit 2.16 attached
hereto no later than the Closing Date, and such assets are not subject to any
claims or encumbrances except as indicated in Schedule 2.16,
respectively.
2.17 Material Contracts. A list of
EP’s material contracts shall be attached hereto as Exhibit 2.17 no later
than the Closing Date, and such contracts shall be made available for inspection
within five (5) days prior to Closing.
2.18 Indemnification. EP agrees to
indemnify, defend and hold GeoBio harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorney fees asserted by third parties against GeoBio which arise out of, or
result from (i) any breach by EP in performing any of its covenants or
agreements under this Agreement or in any schedule, certificate, exhibit or
other instrument furnished or to be furnished by EP under this Agreement, (ii) a
failure of any representation or warranty in this Article II or (iii) any untrue
statement made by EP in this Agreement.
2.19 Criminal or Civil Acts. For the period of five
years prior to the execution of this Agreement, no executive officer, director
or principal stockholder of EP has been convicted of a felony crime, filed for
personal bankruptcy, been the subject of a Commission or NASD judgment or
decree, or is currently the subject to any investigation in connection with a
felony crime or Commission or NASD proceeding.
2.20 Restricted
Securities. EP and the EP Security Holders acknowledge that
all of the GeoBio Shares issued by GeoBio are restricted securities and none of
such securities may be sold or publicly traded except in accordance with the
provisions of the Securities Act.
3
ARTICLE
III
Representations
and Warranties of GeoBio
GeoBio represents and warrants to EP
the following to be true currently or shall be true as of the Closing
Date:
3.1 Organization. GeoBio is a
corporation duly organized, validly existing and in good standing under the laws
of Colorado, has all necessary corporate powers to carry on its business, and is
duly qualified to do business and is in good standing in each of the states
where its business requires qualification.
3.2 Capital. The authorized
capital stock of GeoBio:
(a)
consists of two hundred million (200,000,000) shares of no par value common
stock, of which approximately forty four million (44,000,000) shares are
currently outstanding. Zero (0) shares of no par value preferred
stock, five million (5,000,000) of which are authorized and none of which
currently are outstanding. All of the outstanding common stock is duly and
validly issued, fully paid and non-assessable. Currently, warrants to issue
approximately five million five hundred eighteen thousand five hundred fifty
three (5,518,553) shares of common stock remain outstanding. There
are no other outstanding subscriptions, rights, debentures, instruments,
convertible securities or other agreements or commitments obligating GeoBio to
issue any additional shares of its capital stock of any class; and
(b)
shall, on the Closing Date, consist approximately of five hundred million
(500,000,000) shares of capital stock, forty million (40,000,000) of which shall
be issued and outstanding, twenty five million (25,000,000) shares preferred
stock and none of which shall be issued and outstanding. GeoBio shall
undertake all necessary steps to effect a recapitalization to implement this
capital structure.
3.3 Subsidiaries. GeoBio does not
have any subsidiaries or own any interest in any other enterprise.
3.4 Directors and
Officers.
(a) The name
and title of the director and executive officer of GeoBio are as
follows:
|
Name
|
Position
|
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇
|
Director
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇
|
Director
|
|
|
▇▇▇▇▇
▇. ▇▇▇▇
|
Director
|
(b) Upon
the Closing Date, GeoBio shall appoint up to two (2) additional EP designees to
the board of directors.
3.5 Financial Statements. The
▇▇▇▇▇ database of the SEC contains Exhibit 3.5 hereto
the audited financial statements of GeoBio through the fiscal year ended
September 30, 2008 and quarterly statements through June 30, 2008 (the “GeoBio
Financial Statements”) These GeoBio Financial Statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently followed by GeoBio throughout the period indicated, and
fairly present the financial position of GeoBio as of the date of the balance
sheet included in the GeoBio Financial Statements and the results of operations
for the period indicated. GeoBio shall bring its filings current within ninety
(90) days following the Closing Date.
3.6 Financing. No later
than ninety (90) days following the Closing Date, GeoBio shall have properly
secured and received financing in connection with this Agreement in the amount
of no less than Five Hundred Thousand U.S. Dollars ($500,000) (the “Financing”). In the
event that GeoBio has not properly secured nor received the Financing, this
Agreement shall be immediately unwound, cancelled and terminated in accordance
with Section 9.16 herein below, and both parties returned to the state and
condition as of the date of this Agreement, less expenses incurred.
3.7 Absence of Changes. Since June
30, 2008, there has not been any material change in the financial condition or
operations of GeoBio, except as publically filed with the Securities and
Exchange Commission or contemplated by this Agreement. As used
throughout this Agreement, “material” means: Any change or effect (or
development that, insofar as can be reasonably foreseen, is likely to result in
any change or effect) that causes substantial increase or diminution in the
business, properties, assets, condition (financial or otherwise) or results of
operations of a party. Taken as a whole, material change shall not
include changes in national or international economic conditions or industry
conditions generally; changes or possible changes in statutes and regulations
applicable to a party; or the loss of employees, customers or suppliers by a
party as a direct or indirect consequence of any announcement relating to this
transaction.
3.8 Absence of Undisclosed
Liabilities. As of the Closing Date, GeoBio shall not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the GeoBio Financial Statements.
3.9 Tax Returns. GeoBio has, or as
of the Closing Date shall have, filed all federal, state and local tax returns
required by law and have paid all taxes, assessments and penalties due and
payable. The provisions for taxes, if any, reflected in Exhibit 3.8 are
adequate for the periods indicated. There are no present disputes as
to taxes of any nature payable by GeoBio.
3.10 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, EP, its legal counsel and accountants shall
have the opportunity to meet with GeoBio’s accountants and attorneys to discuss
the financial condition of GeoBio during reasonable business hours and in a
manner that does not interfere with the normal operation of GeoBio’s
business. GeoBio shall make available to EP all books and records of
GeoBio.
3.11 Intellectual Property Rights.
GeoBio has no trademarks, service marks, trade names, copyrights or filed
patents material to its business.
3.12 Compliance with Laws. To the
best of GeoBio’s knowledge, GeoBio has complied with, and is not in violation
of, applicable federal, state or local statutes, laws and regulations, including
federal and state securities laws, except where such non-compliance would not
have a material adverse impact upon its business or properties.
4
3.13 Litigation. GeoBio is not a
defendant in any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of GeoBio, threatened against or affecting GeoBio or its business,
assets or financial condition. GeoBio is not in default with respect
to any order, writ, injunction or decree of any federal, state, local or foreign
court, department, agency or instrumentality applicable to it. GeoBio
is not engaged in any material litigation to recover monies due to
it.
3.14 Authority. The Board of
Directors of GeoBio has authorized the execution of this Agreement and the
consummation of the transactions contemplated herein, and GeoBio has full power
and authority to execute, deliver and perform this Agreement, and this Agreement
is a legal, valid and binding obligation of GeoBio and is enforceable in
accordance with its terms and conditions.
3.15 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by GeoBio and
the performance by GeoBio of its obligations hereunder in the time and manner
contemplated will not cause, constitute or conflict with or result in (a) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, instrument, article of incorporation, bylaw,
or other agreement or instrument to which GeoBio is a party, or by which it may
be bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would permit any party to any agreement or
instrument to terminate it or to accelerate the maturity of any indebtedness or
other obligation of GeoBio, or (c) an event that would result in the creation or
imposition of any lien, charge or encumbrance on any asset of
GeoBio.
3.16 Full Disclosure. None of the
representations and warranties made by GeoBio herein or in any exhibit,
certificate or memorandum furnished or to be furnished by GeoBio, or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
3.17 Assets. GeoBio assets are or
shall be prior to the Closing Date, fully included in Exhibit 3.5 and are
not subject to any claims or encumbrances except as indicated in Exhibit
3.5.
3.18 Material Contracts. A list of
GeoBio’s material contracts are attached hereto as Exhibit 3.17, and
such contracts shall be made available for inspection within five (5) days prior
to Closing.
3.19 Indemnification. GeoBio agrees
to indemnify, defend and hold EP harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorney fees asserted by third parties against EP which arise out of, or result
from (i) any breach by GeoBio in performing any of its covenants or agreements
under this Agreement or in any schedule, certificate, exhibit or other
instrument furnished or to be furnished by GeoBio under this Agreement, (ii) a
failure of any representation or warranty in this Article III or (iii) any
untrue statement made by GeoBio in this Agreement.
3.20 Criminal or Civil Acts. For the period of five (5)
years prior to the execution of this Agreement, no executive officer, director
or principal stockholder of GeoBio has been convicted of a felony crime, filed
for personal bankruptcy, been the subject of a Commission or Financial Industry
Regulatory Authority (FINRA) judgment or decree, or is currently the subject to
any investigation in connection with a felony crime or Commission or FINRA
proceeding.
ARTICLE
IV
Covenants
Prior to the Closing Date
4.1 Investigative Rights. Prior to
the Closing Date, each party shall provide to the other party, and such other
party’s counsel, accountants, auditors and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party’s properties, books, contracts, commitments and
records for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party’s affairs as
the other party may reasonably request. If during the investigative
period one party learns that a representation of the other party was not
accurate, no such claim may be asserted by the party so learning that a
representation of the other party was not accurate.
4.2 Conduct of Business. Prior to
the Closing Date, each party shall conduct its business in the normal course and
shall not sell, pledge or assign any assets without the prior written approval
of the other party, except in the normal course of business. Neither
party shall amend its Articles of Incorporation or Bylaws (except as may be
described in this Agreement), declare dividends, redeem or sell stock or other
securities. Neither party shall enter into negotiations with any
third party or complete any transaction with a third party involving the sale of
any of its assets or the exchange of any of its common stock.
4.3 Confidential Information. Each party will
treat all non-public, confidential and trade secret information received from
the other party as confidential, and such party shall not disclose or use such
information in a manner contrary to the purposes of this
Agreement. Moreover, all such information shall be returned to the
other party in the event this Agreement is terminated.
4.4 Notice of Non-Compliance. Each party shall
give prompt notice to the other party of any representation or warranty made by
it in this Agreement becoming untrue or inaccurate in any respect or the failure
by it to comply with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfied by it under this
Agreement.
ARTICLE
V
Conditions
Precedent to GeoBio’s Performance
5.1 Conditions. GeoBio’s
obligations hereunder shall be subject to the satisfaction at or before the
Closing Date of all the conditions set forth in this Article
V. GeoBio may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by GeoBio of any other condition of or any of GeoBio’s
other rights or remedies, at law or in equity, if EP shall be in default of any
of its representations, warranties or covenants under this
Agreement.
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5.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by EP in this Agreement or in any written statement that shall be
delivered to GeoBio by EP under this Agreement shall be true and accurate on and
as of the Closing Date as though made at that time.
5.3 Performance. EP shall have
performed, satisfied and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date.
5.4 Absence of Litigation. No
action, suit or proceeding, including injunctive actions, before any court or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against EP on or before the Closing Date.
5.5 Officer’s Certificate. EP
shall have delivered to GeoBio a certificate dated the Closing Date signed by
the Chief Executive Officer of EP certifying that each of the conditions
specified in this Article has been fulfilled and that all of the representations
set forth in Article II are true and correct as of the Closing
Date.
5.6 Corporate Action. EP shall
have obtained the approval of the EP Security Holders for the transaction
contemplated by this Agreement.
5.7 Acceptance of Financial
Statements. GeoBio shall have reviewed and in its sole discretion
accepted, prior to the Closing Date, the EP Financial Statements as set forth in
Exhibit
2.5.
ARTICLE
VI
Conditions
Precedent to EP’s Performance
6.1 Conditions. EP’s obligations
hereunder shall be subject to the satisfaction at or before the Closing Date of
all the conditions set forth in this Article VI. EP may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by EP of any other
condition of or any of EP’s rights or remedies, at law or in equity, if GeoBio
shall be in default of any of its representations, warranties or covenants under
this Agreement.
6.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by GeoBio in this Agreement or in any written statement that shall be
delivered to EP by GeoBio under this Agreement shall be true and accurate on and
as of the Closing Date as though made at that time.
6.3 Performance. GeoBio shall have
performed, satisfied and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date.
6.4 Absence of Litigation. No
action, suit or proceeding before any court or any governmental body or
authority, pertaining to the transaction contemplated by this Agreement or to
its consummation, shall have been instituted or threatened against GeoBio on or
before the Closing Date.
6.5 Officer’s Certificate. GeoBio
shall have delivered to EP a certificate dated the Closing Date signed by the
Chief Executive Officer of GeoBio certifying that each of the conditions
specified in this Article has been fulfilled and that all of the representations
set forth in Article III are true and correct as of the Closing
Date.
6.6 Payment of Liabilities. On or before the Closing
Date, GeoBio shall have paid any outstanding obligations and liabilities of
GeoBio through the Closing Date, including obligations created subsequent to the
execution of this Agreement.
6.7 Directors of GeoBio. On the Closing Date,
the Board of Directors of GeoBio shall appoint up to two (2) designees of EP to
GeoBio Board of Directors.
6.8 Officers of GeoBio. Concurrent to this
Agreement, the Board of Directors of GeoBio shall execute an employment
agreements naming ▇▇▇▇▇ ▇▇▇▇▇▇▇ to the position of Chief Executive Officer,
▇▇▇▇▇ ▇. ▇▇▇▇▇ to the position of President, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ to the position
of Chief Operations Officer and ▇▇▇▇▇ ▇. ▇▇▇▇ to the position of Secretary of
GeoBio. ▇▇▇▇ ▇▇▇▇▇▇▇ shall remain the Chief Financial Officer of
GeoBio.
ARTICLE
VII
Closing
7.1 Closing. The closing of this
Agreement shall be held at the offices of The ▇▇▇▇ Law Group, PLLC, or at any
mutually agreeable place within ninety (90) days of the mutual execution of this
Agreement, unless extended by mutual agreement. At the
closing:
(a) EP shall
deliver to GeoBio (i) copies of Exhibit 1.2 executed
by all of the EP Security Holders, (ii) an assignment of all of the EP Stock to
GeoBio, (iii) the officer’s certificate described in Section 5.5, (iv) signed
minutes of its directors approving this Agreement.
(b) GeoBio
shall deliver to EP (i) certificates representing the Shares issued in the names
of the EP Security Holders, (ii) the officer’s certificate described in Section
6.5, and (iii) signed minutes of its directors approving this
Agreement.
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ARTICLE
VIII
Covenants
Subsequent to the Closing Date
8.1 Registration and Listing. Following the Closing Date,
GeoBio shall:
(a) Seek,
secure and receive the Financing in accordance with Section 3.6
above;
(b) Comply
with the Form 8-K requirements of the Securities Exchange Act of 1934 (the
“Exchange
Act”), including the timely preparation and filing of audited financial
statements as required by Form 8-K; and
(c) Clear any
Exchange Act Rule 144 sales of GeoBio common stock offered by any GeoBio common
stockholder including affiliates or former affiliates of GeoBio within
forty-eight (48) hours of the filing of the Notice of Sale pursuant to Rule
144.
8.2 Corporate
Action. GeoBio shall file the required documents and take the
required actions to change its name to “EnviroPlastics Corporation” or to such
other name as deemed acceptable to the directors and management of GeoBio,
within thirty (30) days following the Closing.
ARTICLE
IX
Miscellaneous
9.1 Captions and Headings. The
article and Section headings throughout this Agreement are for convenience and
reference only and shall not define, limit or add to the meaning of any
provision of this Agreement.
9.2 No Oral Change. This Agreement
and any provision hereof may not be waived, changed, modified or discharged
orally, but only by an agreement in writing signed by the party against whom
enforcement of any such waiver, change, modification or discharge is
sought.
9.3 Non-Waiver. The failure of any
party to insist in any one or more cases upon the performance of any of the
provisions, covenants or conditions of this Agreement or to exercise any option
herein contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants or conditions. No waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other subsequent breach.
9.4 Time of Essence. Time is of
the essence of this Agreement and of each and every provision
hereof.
9.5 Entire Agreement. This
Agreement contains the entire Agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings.
9.6 Choice of Law. This Agreement
and its application shall be governed by the laws of the State of
Washington.
9.7 Counterparts. This Agreement
may be executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
9.8 Notices. All notices,
requests, demands and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly addressed as
follows:
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GeoBio
Energy, Inc
c/o The ▇▇▇▇ Law Group,
PLLC
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇, Director
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EnviroPlastics
Corporation:
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▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO
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With
a copy to:
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The
▇▇▇▇ Law Group, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇
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9.9 Binding Effect. This Agreement
shall inure to and be binding upon the heirs, executors, personal
representatives, successors and assigns of each of the parties to this
Agreement.
9.10 Mutual Cooperation. The
parties hereto shall cooperate with each other to achieve the purpose of this
Agreement and shall execute such other and further documents and take such other
and further actions as may be necessary or convenient to effect the transaction
described herein.
9.11 Finders. There are no finders
in connection with this transaction.
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9.12 Announcements. The
parties will consult and cooperate with each other as to the timing and content
of any public announcements regarding this Agreement.
9.13 Expenses. Each party will bear
their own expenses, including legal fees incurred in connection with this
Agreement. The EP Security Holders shall not be responsible for any
costs incurred in connection with the transaction contemplated by this
Agreement.
9.14 Survival of Representations and
Warranties. The representations, warranties, covenants and agreements of
the parties set forth in this Agreement or in any instrument, certificate,
opinion or other writing providing for in it, shall survive the Closing
Date.
9.15 Exhibits. As of the execution
hereof, the parties have provided each other with the exhibits described
herein. Any material changes to the exhibits shall be immediately
disclosed to the other party.
9.16 Unwinding, Termination, Amendment and
Waiver.
(a) Undwinding. At
any time whatsoever within ninety (90) days following the Closing Date of this
Agreement, this Agreement may be cancelled and unwound by EP should GeoBio not
prove able to provide the Financing in accordance with Section 3.6 above, and/or
the proper and necessary due diligence materials, information and documents
requested in this Agreement and its Exhibits attached. In the event
of cancellation and unwinding of this Agreement by either of the Parties, as
provided herein, this Agreement shall forthwith become void and have no effect,
without any liability or obligation on the part of either of the Parties, and
such cancellation and unwinding shall not relieve any party hereto for any
intentional breach prior to such cancellation and unwinding by a party hereto of
any of its representations or warranties or any of its covenants or agreements
set forth in this Agreement. In the event of cancellation and
unwinding of this Agreement, the Parties agree to make a good faith effort to
return all consideration tendered and delivered by the other Party.
(b) Termination. This
Agreement may be terminated at any time prior to the Closing Date, whether
before or after approval of matters presented in connection with the share
exchange by the stockholders of GeoBio or by the members of EP:
(1) By
mutual written consent of EP and GeoBio;
(2) By
either EP or GeoBio;
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(i)
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If
any court of competent jurisdiction or any governmental, administrative or
regulatory authority, agency or body shall have issued an order, decree or
ruling or taken any other action permanently enjoining, restraining or
otherwise prohibiting the transactions contemplated by this Agreement;
or
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(ii)
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If
the transaction shall not have been consummated on or before within thirty
(30) days following mutual execution of this Agreement, unless the failure
to consummate the transaction is the result of a material breach of this
Agreement by the party seeking to terminate this
Agreement.
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(3) By
EP, if GeoBio breaches any of its representations or warranties hereof or fails
to perform in any material respect any of its covenants, agreements or
obligations under this Agreement; and
(4) By
GeoBio, if EP breaches any of its representations or warranties hereof or fails
to perform in any material respect any of its covenants, agreements or
obligations under this Agreement.
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(c) Effect of
Termination. In the event of termination of this Agreement by
either GeoBio or EP, as provided herein, this Agreement shall forthwith become
void and have no effect, without any liability or obligation on the part of EP
or GeoBio, and such termination shall not relieve any party hereto for any
intentional breach prior to such termination by a party hereto of any of its
representations or warranties or any of its covenants or agreements set forth in
this Agreement.
(d) Extension;
Waiver. At any time prior to the Closing Date, the parties
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligation of the other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure
of any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights.
(e) Procedure for Unwinding, Termination,
Amendment, Extension or Waiver. An unwinding of this
Agreement, a termination of this Agreement, an amendment of this Agreement or an
extension or waiver shall, in order to be effective, require in the case of EP
or GeoBio, action by its respective Board of Directors or the duly authorized
designee of such Board of Directors.
[Remainder of Page
Intentionally Blank; Signature Page Follows]
In witness whereof, the parties have
executed this Agreement concerning the exchange of securities on the date
indicated above.
By:
_______________________
Director
ENVIROPLASTICS
CORPORATION
By:
_______________________
Chief
Executive Officer,
Director
9
EXHIBIT
1.1
EP
Security Holders
EXHIBIT
1.2
EP
Subscription Agreements
EXHIBIT
2.5
Financial
Statements for EP (if available)
EXHIBIT
2.7
EP
Liability Schedule
EXHIBIT
2.8
Provisions for taxes (if
any)
EXHIBIT
2.16
Assets
of EP
EXHIBIT
2.17
Material
Contractsof EP
EXHIBIT
3.5
Financial
Statements for GeoBio
EXHIBIT
3.8
GeoBio
provisions for Tax Returns(if any)
EXHIBIT 3.17
Material
Contracts for GeoBio