Exhibit 10.17
AGREEMENT AND PLAN
OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER ( “Agreement” )
dated as of February 20, 2007, is by and among Global Green
Solutions Inc., a Nevada corporation (the “Corporation” ),
Greensteam Acquisition Company Inc., a Delaware corporation and
wholly owned subsidiary of the Corporation (
“Sub” ), Greensteam Development Inc., a Delaware
corporation ( “Greensteam” ), the
Greensteam shareholders identified as such on the signature page
hereto (the “Greensteam
Shareholders” ), and Raymond T. Pirraglia, as the
initial Representative.
W I T N E S S E T H:
WHEREAS,
Greensteam, the Corporation and Sub have determined to engage in a
business combination, whereby Sub shall be merged with and into
Greensteam (the “Merger” );
WHEREAS
Sub wants to obtain any and all rights to steam generation
equipment supply and service contract for a major oil company and
other potential oil and gas producers in the San Joaquin Valley,
California;
WHEREAS,
subject to the terms and conditions set forth in this Agreement,
the Greensteam Shareholders and the board of directors of each of
the Corporation, Sub and Greensteam has determined to enter into
the Merger in accordance with this Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, and intending
to be legally bound, the parties agree as follows:
ARTICLE I.
THE MERGER
1.1. Merger; Effective Time of the
Merger.
Upon the
terms and subject to the conditions of this Agreement, at the
Effective Time, Sub shall be merged with and into Greensteam in
accordance with the Delaware General Corporation Law (the
“DGCL” ), and Greensteam shall continue its
existence as the surviving corporation in the Merger (the
“Surviving Corporation” ). At the closing of the
Merger (the “Closing” ), a Certificate of
Merger, prepared and executed in accordance with the DGCL, with
respect to the Merger (the “Certificate of
Merger” ) shall be filed with the Delaware Secretary of
State. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Delaware Secretary of
State or at such later time as is specified in the Certificate of
Merger pursuant to the mutual agreement of the Corporation and
Greensteam (the “Effective Time” ).
1.2. Closing.
The
Closing shall take place (i) at the offices of Boyer &
Ketchand, 9 Greenway Plaza, Suite 3100, Houston, Texas, at 9:00
a.m., local time, on February 20, 2007, or (ii) at such
- 1 -
other time or place or on such other date
as the parties hereto shall agree; provided, however, that the
parties shall use their reasonable best efforts to cause the
closing to occur prior to or on February 23, 2007. The date on
which the Closing is required to take place is herein referred to
as (the “Closing Date.” )
1.3. Effects of the
Merger.
The
Merger shall have the effects specified in the DGCL, as amended.
This Agreement shall constitute a plan of merger with respect to
the Merger.
1.4. Surviving
Corporation.
The
Certificate of Incorporation of Greensteam, as in effect
immediately prior to the Effective Time, shall be the Certificate
of Incorporation of the Surviving Corporation.
1.5. Bylaws.
The
Bylaws of Greensteam, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Corporation,
until thereafter amended in accordance with the terms thereof of
and as provided by the DGCL.
1.6. Directors.
The
members of the board of directors of Sub in office immediately
prior to the Effective Time shall be the board of directors of the
Surviving Corporation until their successors in office shall have
been duly elected and qualified.
1.7. Officers.
The
officers of Sub in office immediately prior to the Effective Time
shall be the officers of the Surviving Corporation until their
successors in office shall have been duly appointed and
qualified.
1.8. Merger Consideration and
Conversion of Securities.
(a)
At the Effective Time, by virtue of the Merger and without any
action on the part of the Corporation, Sub, Greensteam or any
holder of the following interests, the outstanding shares of common
stock, $.01 par value per share, of Greensteam (
“Greensteam Shares” ), shall be converted into and become validly
issued, fully paid and nonassessable shares of common stock,
$0.00001 par value ( “Common Shares” ) of
the Corporation, such that each Greensteam Shareholder at the
Effective Time shall receive (x) such number of Common Shares as
are set forth as Initial Merger Consideration on Schedule A to this
Agreement (the “Initial Merger Consideration” )
plus, (y) such additional number of Common Shares as are set forth
in Sections 1.9 and 7.8 upon the terms and conditions and at the
times set forth in Sections 1.9 and Section 7.8 (the
“Contingent Merger
Consideration” and, together with the Initial
Merger Consideration, the “Merger Consideration”
). All Greensteam Shares held by the Greensteam Shareholders, when
converted or cancelled as provided herein, shall no longer be
outstanding and shall automatically be canceled and retired and
shall cease to exist, and each holder of a
- 2 -
certificate representing any such shares
shall cease to have any rights with respect thereto, except the
right to receive the Merger Consideration therefor.
(b) At the Effective Time, by virtue
of the Merger and without any action on the part of the
Corporation, Sub, Greensteam or any holder of the following
interests, each issued and outstanding share of common stock, $.01
par value per share, of Sub ( “Sub Share”
) shall be converted into and
become one validly issued, fully paid and nonassessable share of
common stock, par value $0.01 per share, of the Surviving
Corporation.
(c) All Common Shares issued as
Merger Consideration in accordance with the terms hereof shall be
deemed to have been issued in full satisfaction of all rights
pertaining to the exchanged Greensteam Shares.
(d) No certificates or scrip
evidencing fractional Common Shares shall be issued upon the
Merger, and fractional interests in Greensteam shall not entitle
the owner thereof to any rights except as set forth in the next
sentence. In lieu of fractional interests, each Greensteam
Shareholder shall receive a number of Common Shares rounded to the
nearest whole share, with half Common Shares being rounded up to
the nearest whole share.
(e) Upon execution of this
Merger Agreement, all rights and interests held or extended to
Greensteam Shareholders pertaining to steam generation equipment
supply and service contract for a major oil company and other
potential oil and gas producers in the San Joaquin Valley,
California shall pass to Sub.
1.9. Contingent Merger
Consideration .
(a) The Corporation, acting
through a majority-owned joint venture (the “Venture” ) and using
the rights acquired by Sub via this Merger, intends to enter into a
steam generation equipment supply and service contract or similar
contract (the “Supply Contract” ) with a major
oil company, followed by the Venture’s installation of a
single steam generating unit to test the commercial efficacy of the
production of steam, to be used in enhanced oil recovery, from
biomass feedstock (the “ Pilot ”). Upon the execution
of a Supply Contract by the Venture, the Corporation shall issue to
the Greensteam Shareholders as Contingent Merger Consideration an
additional 850,000 duly authorized, fully paid and non-assessable
Common Shares on a pro rata basis in accordance with the
percentages set forth on Schedule A.
(b)(i)
If the Venture achieves reasonably acceptable commercial production
from the Pilot, as evidenced by the Venture’s determination
to install additional steam generating units, the Corporation shall
issue to the Greensteam Shareholders as Contingent Merger
Consideration an additional 500,000 duly authorized, fully paid and
non-assessable Common Shares on a pro rata basis in accordance with
the percentages set forth on Schedule A. !
(ii) If the
Venture or its Affiliates commence installation of additional steam
generating units, then:
- 3 -
(x)
upon the earlier to occur of (A) the one-year anniversary of
the execution of the Supply Contract and (B) the commercial
operation, as reasonably determined by the parties, of the fourth
steam generating unit by the Venture and/or its Affiliates,
collectively, the Corporation shall issue to the Greensteam
Shareholders as Contingent Merger Consideration an additional
500,000 duly authorized, fully paid and non-assessable Common
Shares on a pro rata basis in accordance with the percentages set
forth on Schedule A;
(y)
upon the earlier to occur of (A) the two-year anniversary of
the execution of the Supply Contract and (B) the commercial
operation, as reasonably determined by the parties, of the tenth
steam generating unit by the Venture and/or its Affiliates,
collectively, the Corporation shall issue to the Greensteam
Shareholders as Contingent Merger Consideration an additional
1,000,000 duly authorized, fully paid and non-assessable Common
Shares on a pro rata basis in accordance with the percentages set
forth on Schedule A; and
(z)
upon the earlier to occur of (A) the two-year anniversary of the
execution of the Supply Contract and (B) the commercial operation,
as reasonably determined by the parties, of the fifteenth steam
generating unit by the Venture and/or its Affiliates, collectively,
the Corporation shall issue to the Greensteam Shareholders as
Contingent Merger Consideration an additional 1,000,000 duly
authorized, fully paid and non-assessable Common Shares on a pro
rata basis in accordance with the percentages set forth on Schedule
A.
(c) In the event of a decision by
Corporation to participate in any project offered to it pursuant to
Section 6 of the Consulting and Right of First Refusal Agreement,
the Greensteam Shareholders shall immediately be entitled to
receive, as additional Contingent Merger Consideration, 1,000,000
duly authorized, fully paid and non-assessable Common Shares of the
Corporation (the “Kahn Project Shares” ) on a
pro rata basis in accordance with the percentages set forth on
Schedule A.
(d) Notwithstanding the
foregoing, upon the effective time of a Change of Control, the
Corporation shall be immediately obligated to issue all of the not
previously issued Contingent Merger Consideration issuable pursuant
to this Section 1.9(a) and (b) to the Greensteam Shareholders on a
pro rata basis in accordance with the percentages set forth on
Schedule A.
1.10. Termination Option
. Notwithstanding
any other provision of this Agreement, during the period beginning
on the date of execution of the Supply Contract and ending on the
date of the commercial operation, as reasonably determined by the
parties, of the fourth steam generating unit by the Venture and/or
its Affiliates, collectively (the
“Development
- 4 -
Period” ), the Corporation
shall have the right to terminate its obligation to issue the
Contingent Merger Consideration issuable under Section 1.9(b) by
delivering written notice of such election (the
“Termination Election” ) to the Greensteam Shareholders. The
Corporation hereby grants the Greensteam Shareholders the right and
option to re-acquire the Corporation’s interest in all rights
to steam generation supply and service contracts with a major oil
company and other potential oil and gas producers in the San
Joaquin Valley, California that the Corporation acquired via the
Sub as part of the Merger for $1.00. Greensteam Shareholders shall
have such right during the period beginning on the date the
Corporation delivers notice of the Termination Election to the
Greensteam Shareholders and ending one year thereafter. In the
event that some or all of the Greensteam Shareholders elect to
acquire the Corporation’s interest in the Venture pursuant to
this Section 1.10, such Greensteam Shareholders shall form an
entity to acquire and hold such interest.
1.11. Tax Consequences.
Greensteam, the Corporation, and Sub agree that for U.S. federal
income tax purposes the Merger is intended to qualify as a tax-free
reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the
“Code” ) and this Agreement is intended to be
and is adopted as a Plan of Reorganization for purposes of Section
354 and 361 of the Code.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The
Corporation represents and warrants to Greensteam that:
2.1. Organization.
The
Corporation is a corporation duly organized, validly existing and
in good standing under the laws of Nevada. Sub is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Corporation has full power and
authority to own, lease or otherwise hold and operate its
properties and assets and to carry on its business as presently
conducted. The Corporation is duly qualified and in good standing
to do business in each jurisdiction in which the conduct or nature
of its business or the ownership, leasing, holding or operating of
its properties makes such qualification necessary, except such
jurisdictions where the failure to be so qualified or in good
standing, individually or in the aggregate, would not have a
Material Adverse Effect.
2.2. Capitalization of the
Corporation.
The
authorized capital stock of the Corporation consists of 100,000,000
million Common Shares of which 31,316,344 are issued and
outstanding and 8,991,918 are reserved for issuance in respect of
outstanding options, warrants, convertible debt or other rights. A
complete list of the Common Shares outstanding and the Common
Shares the Corporation is obligated to issue upon the exercise or
conversion of currently outstanding rights is attached hereto as
Schedule 2.2. The Common Shares to be issued in connection with the
Merger have been duly authorized and, when issued in accordance
with the terms of this Merger Agreement, will be
- 5 -
validly issued, fully paid, nonassessable
and free and clear of any preemptive rights. The parties
acknowledge that all such shares are restricted in nature pursuant
to Article 4.4
2.3. Authority Relative to This
Agreement.
The
Corporation and Sub have all requisite corporate power and
authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and
performance by the Corporation and Sub of this Agreement, and the
consummation by them of the transactions contemplated hereby, have
been duly authorized by their respective directors and by the
Corporation as sole shareholder of Sub, and no other proceedings on
the part of the Corporation and Sub are necessary to authorize the
execution, delivery and performance by the Corporation and Sub of
this Agreement and the consummation by them of the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Corporation and Sub and constitutes, and each
other agreement, instrument or document executed or to be executed
by the Corporation and Sub in connection with the transactions
contemplated hereby has been, or when executed will be, duly
executed and delivered by the Corporation or Sub and constitutes,
or when executed and delivered will constitute, a valid and legally
binding obligation of the Corporation or Sub enforceable against
the Corporation or Sub in accordance with their respective terms,
except that such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors’ rights generally and (ii) equitable
principles which may limit the availability of certain equitable
remedies (such as specific performance) in certain instances.
2.4. Noncontravention.
The
execution, delivery and performance by the Corporation and the Sub
of this Agreement and the consummation by them of the transactions
contemplated hereby do not and will not (i) conflict with or result
in a violation of any provision of the article or certificate of
incorporation or association, charter or bylaws of the Corporation
or Sub, (ii) conflict with or result in a violation of any
provision of, or constitute (with or without the giving of notice
or the passage of time or both) a default under, or give rise (with
or without the giving of notice or the passage of time or both) to
any right of termination, cancellation or acceleration under, any
bond, debenture, note, mortgage, indenture, lease, contract,
agreement or other instrument or obligation to which the
Corporation or Sub is a party or by which the Corporation or Sub or
any of their properties may be bound, (iii) result in the creation
or imposition of any Encumbrance upon the assets of the Corporation
or Sub or (iv) violate any Applicable Law binding upon the
Corporation or Sub, except, in the case of clauses (ii), (iii) and
(iv) above, for any such conflicts, violations, defaults,
terminations, cancellations, accelerations or Encumbrances which
would not, individually or in the aggregate, have a Material
Adverse Effect on the Corporation or Sub.
2.5. Governmental
Approvals.
To the
Knowledge of the Corporation, no consent, approval, order or
authorization of, or declaration, filing or registration with, any
Governmental Entity is required to be obtained or made by the
Corporation or Sub in connection with the execution, delivery or
performance by the Corporation and Sub of this Agreement or the
consummation by it of the transactions contemplated hereby, other
than (i) filing of the Certificate of Merger, (ii) filings
- 6 -
with Governmental Entities to occur in the
ordinary course following the consummation of the transactions
contemplated hereby, and (v) such consents, approvals, orders or
authorizations which, if not obtained, and such declarations,
filings or registrations which, if not made, would not,
individually or in the aggregate, have a Material Adverse Effect on
the Corporation.
2.6. Financial Statements.
Filed
with the SEC Filings are copies of (i) the Corporation’s
unaudited consolidated balance sheet as of August 31, 2006 (the
“Corporation Latest Balance Sheet” ), and the
related unaudited consolidated statements of operations,
stockholders’ equity and cash flows for the nine-month period
then ended (the “Corporation Unaudited Financial
Statements” ), and (ii) the Corporation’s audited
consolidated balance sheet as of November 30, 2005, and the related
audited consolidated statements of operations, stockholders’
equity and cash flows for the year then ended, and the notes
thereto, together with the report thereon of Morgan & Company,
Chartered Accountants (the “Corporation Audited Financial
Statements” ) (collectively, the “Corporation
Financial Statements” ). The Corporation Financial
Statements (A) have been prepared from the books and records of the
Corporation in conformity with United States generally accepted
accounting principles applied on a basis consistent with preceding
years, and (B) accurately and fairly present the
Corporation’s consolidated financial position as of the
respective dates thereof and its consolidated results of operations
and cash flows for the periods then ended.
2.7. Absence of Undisclosed
Liabilities.
To the
Knowledge of the Corporation, as of the date of this Agreement, the
Corporation does not have any liability or obligation (whether
accrued, absolute, contingent, unliquidated or otherwise), except
(i) liabilities reflected on the Corporation Latest Balance Sheet,
(ii) liabilities described in the notes accompanying the
Corporation Audited Financial Statements, (iii) liabilities which
have arisen since the date of the Corporation Latest Balance Sheet
in the ordinary course of business (none of which is a material
liability for breach of contract, tort or infringement), and (iv)
other liabilities which, in the aggregate, are not material to the
Corporation.
2.8. Absence of Certain
Changes.
As of the
date of this Agreement, since the date of the Corporation Unaudited
Financial Statements, (i) there has not been any material adverse
change in, or any event or condition that might reasonably be
expected to result in any Material Adverse Effect in, the assets or
financial condition of the Corporation, (ii) the Corporation has
not incurred any material liability, engaged in any material
transaction or entered into any material agreement outside the
ordinary course of business consistent with past practice, and
(iii) the Corporation has not suffered any material loss, damage,
destruction or other casualty to any of its assets (whether or not
covered by insurance).
- 7 -
2.9. Compliance With Laws.
The
Corporation has complied in all material respects with all
Applicable Laws, except for noncompliance with such Applicable Laws
which, individually or in the aggregate, does not and will not have
a Material Adverse Effect on the Corporation. The Corporation has
not received any written notice from any Governmental Entity, which
has not been dismissed or otherwise disposed of, that the
Corporation has not so complied. The Corporation is not charged or,
to the Knowledge of the Corporation, threatened with, or under
investigation with respect to, any violation of any Applicable Law
relating to any aspect of the business of the Corporation.
2.10. Brokerage Fees.
Neither the Corporation nor Sub
has retained any financial advisor, broker, agent or finder or paid
or agreed to pay any financial advisor, broker, agent or finder on
account of this Agreement or any transaction contemplated
hereby.
2.11. SEC Filings.
To the
Knowledge of the Corporation, the Corporation has filed with the
Securities and Exchange Commission (the
“Commission” ) all forms, reports, schedules,
statements, and other documents required to be filed by it since
November 30, 2005 under the Applicable Law. All forms, reports,
schedules, statements, and other documents (including all
amendments thereto) filed by the Corporation with the Commission
since such date are herein collectively referred to as the
“SEC Filings.” The Corporation has directed
Greensteam to the EDGAR website to obtain accurate and complete
copies of all the SEC Filings that are available to the public and
that are in the form filed by the Corporation with the Commission.
The SEC Filings, at the time filed, complied in all material
respects with all applicable requirements of Applicable Law. None
of the SEC Filings, including, without limitation, any financial
statements or schedules included therein, at the time filed,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. The
Corporation shall deliver or make available to Greensteam as soon
as they become available accurate and complete copies of all forms,
reports, and other documents filed by it with the Commission
subsequent to the date hereof and prior to the Closing Date.
2.12. Tax Matters.
The
Corporation has filed all federal, provincial and local Tax Returns
required to be filed by it with respect to Taxes. The Corporation
has timely paid any Taxes that have become due and payable, imposed
on or with respect to the Corporation. There are no liens for Taxes
(other than for taxes not yet due and payable) upon the Corporation
or any of its properties. There has been no issue raised or
adjustment proposed (and to the Knowledge of the Corporation, none
is pending) by any Taxing Authority in connection with any Taxes or
Tax Return, nor has the Corporation received any written notice
from the Internal Revenue Service or any such other taxing
authority that any such Tax Return is being audited or may be
audited or examined. The Corporation has not received a written
notice of a claim made by any Taxing
- 8 -
Authority in a jurisdiction where the
Corporation does not or has not filed Tax Returns that it is or may
be subject to Tax in such jurisdiction. The Corporation has not
agreed to the extension of any statute of limitations on the
assessment or collection of any such Tax or with respect to any Tax
Return. There are no Tax rulings, requests for rulings or closing
agreements with any Taxing Authority with respect to the
Corporation. The Corporation has no current or potential
contractual obligations, through Tax sharing agreement or
otherwise, to indemnify any other Person with respect to Taxes or
to make any distribution to its owners with respect to any current
or future tax liability of such owners. All withholding or similar
taxes required to be withheld or collected by the Corporation (with
respect to employees or any other Person, or otherwise) have been
remitted to the appropriate Taxing Authority.
2.13. Legal Proceedings.
There are
no Proceedings pending or, to the Knowledge of the Corporation,
threatened against or involving the Corporation or rights of the
Corporation with respect to its properties. The Corporation is not
subject to any judgment, order, writ, injunction, or decree of any
Governmental Entity which has had or is reasonably likely to
materially affect title to or the value of any of its properties.
There are no Proceedings pending or, to the Knowledge of the
Corporation, threatened against the Corporation or its properties,
seeking to restrain, prohibit, or obtain damages or other relief in
connection with this Agreement or the transactions contemplated
hereby or which could reasonably be expected to affect the
Corporation’s ability to consummate the transactions
contemplated hereby.
2.14. Agreements, Contracts and
Commitments.
All
leases, contracts, agreements and instruments to which the
Corporation is a party as of the date hereof and which are in any
single case of material importance to the conduct of the business
of the Corporation are described in the SEC Filings and included as
exhibits thereto. Except as set forth in the SEC Filings, the
Corporation does not have as of the date any agreement, contract or
commitment not made in the ordinary course of business. !
2.15. Ownership.
All of
the ownership interests of Sub are held directly by the
Corporation. Other than this Agreement and the transactions
contemplated hereby, Sub is not a party to any contract or
agreement and has no assets or liabilities, other than those
required to form and organize Sub in the ordinary course.
2.16 Due Diligence and No
Reliance
Notwithstanding any other provision of this Agreement, the
Corporation, to its satisfaction, has performed due diligence and
made independent evaluations and analyses of any all available data
and information with respect to the Venture, the Pilot and any
contemplated projects of the Venture, including the commerciality
or economics of the Pilot and the contemplated projects and the
technical aspects with respect to the equipment or feedstock to be
used therein, and that it has not relied upon any representations
or warranties made by the
- 9 -
Greensteam Shareholders or any of
Greensteam’s directors, officers, employees or agents in
determining whether to enter into this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF GREENSTEAM
AND THE GREENSTEAM SHAREHOLDERS
Greensteam and the Greensteam Shareholders represent and
warrant to the Corporation and Sub that:
3.1. Organization and
Existence.
Greensteam is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Delaware.
Greensteam Energy LLC, a Delaware limited liability company (the
“LLC” ) is a limited liability company, duly
organized, validly existing and in good standing under the laws of
the State of Delaware. Each of Greensteam and the LLC has full
power and authority to own, lease or otherwise hold and operate its
properties and assets and to carry on its business as presently
conducted. Each of Greensteam and the LLC is duly qualified and in
good standing to do business as a foreign corporation in each
jurisdiction in which the conduct or nature of its business or the
ownership, leasing, holding or operating of its properties makes
such qualification necessary, except such jurisdictions where the
failure to be so qualified or in good standing, individually or in
the aggregate, would not have a Material Adverse Effect.
3.2. Authority Relative to This
Agreement.
Greensteam owns all of the outstanding membership units of the LLC.
Greensteam and the Greensteam Shareholders have all requisite power
and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery and performance by Greensteam and the Greensteam
Shareholders of this Agreement, and the consummation by them of the
transactions contemplated hereby, have been duly authorized by all
necessary action. The directors of Greensteam have approved the
Merger and this Agreement, and declared the Merger and this
Agreement to be in the best interests of the Greensteam
Shareholders. Greensteam has obtained approval of the Merger and
this Agreement by the holders of 100% of the outstanding shares of
Greensteam, entitled to vote upon such matters, and by all required
corporate action. This Agreement has been duly executed and
delivered by Greensteam and the Greensteam Shareholders and
constitutes, and each other agreement, instrument or document
executed or to be executed by Greensteam and the Greensteam
Shareholders in connection with the transactions contemplated
hereby has been, or when executed will be, duly executed and
delivered by Greensteam and the Greensteam Shareholders and
constitutes, or when executed and delivered will constitute, a
valid and legally binding obligation of Greensteam and the
Greensteam Shareholders enforceable against Greensteam and the
Greensteam Shareholders in accordance with their respective terms,
except that such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors’ rights generally and (ii) equitable
principles which may limit the availability of certain equitable
remedies (such as specific performance) in certain instances.
- 10 -
3.3. Noncontravention.
The
execution, delivery and performance by Greensteam and the
Greensteam Shareholders of this Agreement and the consummation by
each of the transactions contemplated hereby, do not and will not
(i) conflict with or result in a violation of any provision of its
articles of incorporation or bylaws or other governing instruments
of Greensteam, (ii) conflict with or result in a violation of any
provision of, or constitute (with or without the giving of notice
or the passage of time or both) a default under, or give rise (with
or without the giving of notice or the passage of time or both) to
any right of termination, cancellation or acceleration under, any
bond, debenture, note, mortgage, indenture, lease, contract,
agreement or other instrument or obligation to which Greensteam is
a party or by which Greensteam or any of Greensteam’s or the
LLC’s assets may be bound, (iii) result in the creation or
imposition of any Encumbrance upon Greensteam’s or the
LLC’s assets or (iv) violate any Applicable Law binding upon
Greensteam or the LLC.
3.4. Governmental
Approvals.
To the
Knowledge of Greensteam and the Greensteam Shareholders, no
consent, approval, order or authorization of, or declaration,
filing or registration with, any Governmental Entity is required to
be obtained or made by Greensteam or the Greensteam Shareholders in
connection with the execution, delivery or performance by
Greensteam or the Greensteam Shareholders, as applicable, of this
Agreement or the consummation by it of the transactions
contemplated hereby, other than (i) compliance with any applicable
state securities laws, and (ii) filing of the Certificate of Merger
or filings with Governmental Entities to occur in the ordinary
course following the consummation of the transactions contemplated
hereby.
3.5. Capitalization.
The
authorized capital stock of Greensteam consists of 1,000 Greensteam
Shares, all of which are issued and outstanding. All outstanding
shares of capital stock have been duly authorized and validly
issued and are fully paid and nonassessable. None of the Greensteam
shares has been issued in violation of the preemptive rights of any
Person. There are not now outstanding any other shares, phantom
shares or other securities, or any options, warrants or any rights
related to the Greensteam Shares or to any other shares, phantom
shares or other securities of the Corporation. There are no
agreements of any kind relating to the issuance of any shares of
the Corporation, or any convertible or exchangeable securities or
any options, warrants or other rights relating to the stock of the
Corporation. Except for this Agreement, there are no voting
agreements, voting trusts, buy-sell agreements, options or right of
first purchase agreements or other agreements of any kind relating
to the Greensteam Shares. Greensteam owns all of the outstanding
membership interests in the LLC.
3.6. Absence of Undisclosed
Liabilities.
To the
Knowledge of Greensteam and the Greensteam Shareholders, as of the
date of this Agreement, neither Greensteam nor the LLC has any
liability or obligation outstanding.
- 11 -
3.7. Tax Matters.
Greensteam is and at all times has been an entity taxable as a
corporation for U.S. tax purposes. The LLC is and at all times has
been an entity taxable as a partnership for U.S. tax purposes.
Greensteam and the LLC have filed all federal, state and local Tax
Returns required to be filed by it or them, with respect to Taxes.
Greensteam, the LLC and the Greensteam Shareholders have timely
paid any Taxes that have become due and payable, imposed on or with
respect to Greensteam or the LLC. There are no liens for Taxes
(other than for taxes not yet due and payable) upon Greensteam, the
LLC, the Greensteam Shareholders or any of Greensteam’s or
the LLC’s assets. There has been no issue raised or
adjustment proposed (and to the Knowledge of Greensteam and the
Greensteam Shareholders, none is pending) by any Taxing Authority
in connection with any Taxes or Tax Return, nor has Greensteam or
the LLC received any written notice from the IRS or any such other
taxing authority that any such Tax Return is being audited or may
be audited or examined. Neither Greensteam nor the LLC has received
a written notice of a claim made by any Taxing Authority in a
jurisdiction where Greensteam or the LLC do not or have not filed
Tax Returns that it is or may be subject to Tax in such
jurisdiction. Neither Greensteam nor the LLC have agreed to the
extension of any statute of limitations on the assessment or
collection of any such Tax or with respect to any Tax Return. There
are no Tax rulings, requests for rulings or closing agreements with
any Taxing Authority with respect to Greensteam or the LLC. Neither
Greensteam nor the LLC have current or potential contractual
obligations, through Tax sharing agreement or otherwise, to
indemnify any other Person with respect to Taxes or to make any
distribution to its owners with respect to any current or future
tax liability of such owners.
3.8. Compliance with Laws.
Greensteam, the LLC and the Greensteam Shareholders have complied
in all material respects with all Applicable Laws relating to the
ownership or operation of Greensteam’s and the LLC’s
assets, except for noncompliance with such Applicable Laws which,
individually or in the aggregate, do not and will not have a
Material Adverse Effect on Greensteam. None of Greensteam, the
Greensteam Shareholders, or the LLC has received any written notice
from any Governmental Entity, which has not been dismissed,
complied with or otherwise disposed. None of Greensteam, or the
Greensteam Shareholders, or the LLC have been charged or to the
Knowledge of Greensteam or the Greensteam Shareholders, threatened
with, or is under investigation with respect to, any violation of
any Applicable Law relating to any aspect of the ownership or
operation of Greensteam’s or the LLC’s assets.
3.9. Legal Proceedings.
There are
no Proceedings pending or, to the Knowledge of Greensteam or the
Greensteam Shareholders, threatened against or involving Greensteam
or the LLC or rights of Greensteam or the LLC with respect to
Greensteam’s or the LLC’s assets. Neither Greensteam
nor the LLC is subject to any judgment, order, writ, injunction, or
decree of any Governmental Entity which has had or is reasonably
likely to materially affect title to or the value of any of
Greensteam’s or the LLC’s assets. There are no
Proceedings pending or, to the Knowledge of Greensteam or the
Greensteam Shareholders, threatened against Greensteam or the LLC
or Greensteam’s or the LLC’s assets, seeking to
restrain, prohibit, or obtain damages or other relief
- 12 -
in connection with this Agreement or the
transactions contemplated hereby or which could reasonably be
expected to affect Greensteam’s ability to consummate the
transactions contemplated hereby.
3.10. Brokerage Fees.
None of
Greensteam, the Greensteam Shareholders, or the LLC have retained
any financial advisor, broker, agent or finder or paid or agreed to
pay any financial advisor, broker, agent or finder on account of
this Agreement or any transaction contemplated hereby.
3.11. Disclosure.
(a) No representation or warranty of
Greensteam or the Greensteam Shareholders in this Agreement and no
statement in the Schedules hereto omits to state a material fact
necessary to make the statements herein or therein, in light of the
circumstances in which they were made, not misleading.
(b) There is no fact known to
Greensteam or the Greensteam Shareholders that has specific
application to Greensteam or Greensteam’s or the LLC’s
assets (other than general economic or industry conditions) as far
as Greensteam or the Greensteam Shareholders can reasonably
foresee, that materially threatens, the assets, business,
prospects, financial conditions, or results of operations of
Greensteam or Greensteam’s or the LLC’s assets that has
not been set forth in this Agreement or the Schedules hereto.
3.12. Agreements, Contracts and
Commitments.
Schedule
3.12 lists all leases, contracts, agreements and instruments to
which Greensteam or the LLC is a party as of the date hereof and
which are in any single case of material importance to the conduct
of the business of Greensteam (true and correct copies of each such
document requested by the Corporation have been previously
delivered to the Corporation and a written description of each oral
arrangement so listed) (collectively, the “Greensteam
Contracts” ). Except as set forth in Schedule 3.12,
neither Greensteam nor the LLC has (i) any collective bargaining
agreements or any agreements that contain any severance pay
liabilities or obligations, (ii) any bonus, deferred compensation,
pension, profit-sharing or retirement plans, programs or other
similar employee benefit arrangements, (iii) any employment
agreement, contract or commitment with an employee, or agreements
to pay severance, (iv) any agreement of guarantee or
indemnification running from Greensteam to any Person or entity,
(v) any agreement, indenture or other instrument for borrowed
money, (vi) any agreement, contract or commitment containing any
covenant limiting the freedom of Greensteam or the LLC to engage in
any line of business or compete with any Person, (vii) any
agreement, contract or commitment relating to capital expenditures
and involving future payments, (viii) any agreement, contract or
commitment relating to the acquisition of assets or capital stock
of any business enterprise, or (ix) any agreement, contract or
commitment not made in the ordinary course of business. Neither
Greensteam nor the LLC has breached, nor to Greensteam’s and
the Greensteam Shareholders’ Knowledge is there any claim or
any legal basis for a claim that Greensteam or the LLC has
breached, any of the terms or conditions of any agreement, contract
or commitment set forth in the Schedules or of any other agreement,
contract or commitment,
- 13 -
which breach would have a Material
Adverse Effect on Greensteam or Greensteam’s or the
LLC’s assets.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE GREENSTEAM
SHAREHOLDERS
Each
Greensteam Shareholder, severally and not jointly, represents and
warrants to the Corporation and Sub that:
4.1. Title to Shares.
Such
Greensteam Shareholder is the sole record and beneficial owner of
the number of Greensteam Shares set forth opposite its name on
Schedule A to this Agreement, has good and marketable title to such
Greensteam Shares, and has the full right, power and authority to
sell, assign, convey, transfer and deliver such Greensteam Shares
to free and clear of all Encumbrances. Such Greensteam Shareholder
is not a party to nor is such Greensteam Shareholder or such
Greensteam Shares bound by, any agreement, instrument, judgment or
decree, whether written or oral, express or implied, other than
this Agreement, relating to the voting, sale, assignment,
conveyance, transfer, delivery, right of first refusal, option or
limitation on transfer of any of such Greensteam Shares.
4.2. Authority; Binding
Obligation.
Such
Greensteam Shareholder has full power and authority to enter into
this Agreement and to perform its obligations hereunder. This
Agreement has been duly executed and delivered by, and constitutes
a legal, valid and binding obligation of, such Greensteam
Shareholder, enforceable against such Greensteam Shareholder in
accordance with its terms, except that such enforceability may be
limited by (i) applicable bankruptcy,
