Exhibit
10.3
PREFERRED SHARE
PURCHASE AGREEMENT
THIS SHARE PURCHASE
AGREEMENT (hereinafter referred to as the
“Agreement” ), is entered into as of this June
17, 2009, by and between ONE Holdings, Corp. (formally known as
Contracted Services, Inc.), a Florida corporation (the “
InvestCo ” or the “ Company ”) and
Green Planet Bioengineering, Co., Ltd., Inc, a Delaware corporation
( “Green Planet” ) (collectively referred to as
the “Parties” and individually as a
“Party” ).
W I T N E S S E T
H
WHEREAS,
Green Planet desires to
sell to InvestCo and InvestCo desires to purchase from Green Planet
$15,000,000 worth of Green Planet Series A Convertible Preferred
Stock (“ GP Preferred Stock ”), which
provides for super voting and conversion rights subject to the
terms and conditions of this Agreement; and
WHEREAS
, the Parties intend
that the transaction contemplated herein (the
“Transaction” ) qualify as a reorganization and
tax-free exchange under Section 368(a) of the Internal Revenue
Code of 1986, as amended.
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
PURCHASE OF GP
PREFERRED STOCK
1.1
Purchase
. Green
Planet hereby agrees to sell to InvestCo and InvestCo hereby agrees
to purchase from Green Planet Thirty Thousand Two Hundred and
Thirty Nine (30,239) shares of GP Preferred Stock. Each share of
the GP Preferred Stock shall (a) provide InvestCo with the
right to vote 1,000 votes on all matters submitted to a vote
of the shareholders of Green Planet and (b) be convertible into
1,000 shares of Green Planet common stock. InvestCo shall pay
to Green Planet for said shares of GP Preferred Stock $15,000,000
(the “ Purchase Price ”) which shall be paid by
InvestCo through the issuance to Green Planet of 10,329,551
InvestCo Common Stock (“ InvestCo Stock ”).
1.2
Green Planet hereby
agrees that: (i) thirty five percent (35%) of the InvestCo Common
Stock issued to Green Planet as set forth in Section 1.2 above
shall be deposited into an Escrow; and (ii) in the event Green
Planet’s EBITDA for fiscal year 2009 is less than Green
Planet’s EBITDA for fiscal 2008, the number of shares
issuable to Green Planet under Section 1.1 above shall be reduced
(the “ Adjustment ”) by the number
obtained in the following formula: (i) number of shares of
InvestCo Stock received by Green Planet according to Section 1.1
less (ii) the product of the 2009 EBITDA multiplied by the number
of shares of InvestCo Stock received by Green Planet divided by
2008 EBITDA (the “ Adjustment Shares ”);
and (iii) in the event there are not sufficient number of
Adjustment Shares to compensate InvestCo for such Adjustment, Green
Planet shall deliver to InvestCo such number of InvestCo shares as
are needed to achieve the correct number of Adjustment Shares
within 5 days following InvestCo’s written
request.
1.3
Subject to the
provisions of Section 1.2 and subject to Green Planet’s
compliance with applicable securities laws, after the applicable
holding period, Green Planet shall be entitled to sell
the
1
shares of InvestCo
Common Stock in the public market to raise capital, if required for
Green Planet’s business needs. Except as otherwise
expressly provided herein and subject to the resale requirements of
Rule 144 promulgated under the Securities Act of 1933, as amended,
or any other rule or agreement that otherwise restricts Green
Planet from selling the InvestCo Stock, Green Planet agrees that it
may only sell the InvestCo Stock subject to the following
conditions commencing from the date of this Agreement until 3 years
thereafter (the “ Lock Up/Leak Out Period
”) as follows:
(i)
if on any day the
Shareholder desires to sell any of the InvestCo Stock, the
Shareholder will not sell more than 10% of the average daily volume
of trading in the Investco Stock for the ten (10) consecutive
trading days immediately preceding any such trading day;
(ii)
Green Planet will only
sell the InvestCo Stock at the "offer" or "ask" price stated by the
relevant market maker and Green Planet agrees that it will not sell
InvestCo Stock at the "bid" price.
(iii)
Green Planet agrees that
it will not engage in any short selling of the InvestCo Stock
during the Lock-Up/Leak Out Period.
(iv)
Green Planet agrees that
it will comply with all obligations and requirements under
applicable “insider” trading rules; and
Except as set forth in
this Section 1.3, Green Planet agrees that it will not transfer,
pledge, or hypothecate the InvestCo Stock without the prior written
consent of InvestCo.
1.4
Piggy-Back
Registration .
(i)
If, at any time prior to
December 31, 2010, InvestCo proposes to file a registration
statement under the Securities Act with respect to an offering by
InvestCo or any other party of InvestCo Common Stock (other than a
registration statement on Form S-4 or S-8 or any successor form or
a registration statement filed solely in connection with an
exchange offer, a business combination transaction or an offering
of securities solely to the existing stockholders or employees of
InvestCo), then InvestCo, on each such occasion, shall give written
notice (each, a " InvestCo Piggy-Back Notice ") of
such proposed filing to Green Planet at least fifteen days before
the anticipated filing date of such registration statement, and
such InvestCo Piggy-Back Notice also shall be required to offer to
Green Planet the opportunity to register such aggregate number of
shares of InvestCo Common Stock as Green Planet may request,
subject to the terms hereof. Green Planet shall have the
right, exercisable for the five days immediately following the
giving of the InvestCo Piggy-Back Notice, to request, by written
notice (each, a " GP Notice ") to InvestCo, the
inclusion of all or any portion of the shares of InvestCo Common
Stock owned by Green Planet in such registration statement.
InvestCo shall use reasonable efforts to cause the managing
underwriter(s) of a proposed underwritten offering to permit the
inclusion of the Green Planet’s InvestCo shares which were
the subject of the GP Notice in such underwritten offering on the
same terms and conditions as any similar securities of InvestCo
included therein. Notwithstanding anything to the contrary
contained in this Section 1.4(i), if the managing underwriter(s) of
such underwritten offering or any proposed underwritten offering
delivers a written opinion to Green Planet that the total amount
and kind of securities which they, InvestCo and any other person
intend to include in such offering is such as to materially and
adversely affect the success of such offering, then the amount of
securities to be offered for the account of Green Planet and
persons other than InvestCo shall be eliminated or reduced pro rata
(based on the amount of securities owned by Green Planet and other
persons which carry registration rights) to the extent necessary to
reduce the total amount of securities to
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be included in such
offering to the amount recommended by such managing underwriter(s)
in its written opinion.
(i)
Piggy-Back
Registration; Expenses . The obligations of InvestCo
under this Section 1.4 shall be one time only. Subject to the
provisions of Section 1.4 hereof, InvestCo will pay all
Registration Expenses in connection with any registration of the
shares of InvestCo Common Stock owned by green Planet pursuant to
this Section 1.4(ii), but InvestCo shall not be responsible for the
payment of any underwriter's discount, commission or selling
concession in connection therewith.
(ii)
Withdrawal or
Suspension of Registration Statement . Notwithstanding anything
contained to the contrary in this Section 1.4, InvestCo shall have
the absolute right, whether before or after the giving of a
InvestCo Piggy-Back Notice or a GP Notice, to determine not to file
a registration statement in which Green Planet shall have the right
to include its shares of InvestCo common stock pursuant to this
Section 1.4, to withdraw such registration statement or to delay or
suspend pursuing the effectiveness of such registration statement.
(iv)
Obligations of Green
Planet .
In connection with any registration of InvestCo Common Stock
owned by Green Planet, pursuant to this Section 1.4, InvestCo may
require Green Planet to provide InvestCo such information regarding
the distribution of such shares as the Company may from time to
time reasonably request in writing.
1.5
Legends
. Green Planet
and InvestCo each agrees and understands that until such time as
the resale of such shares received by them under Section 1.1
(subject to adjustment under Section 1.2) have been registered
under the 1933 Act, the certificates representing the said shares
shall bear any legend as required by the "blue sky" laws of any
state and a restrictive legend in substantially the following form
(and a stop-transfer order may be placed against transfer of such
stock certificates):
THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (i) IN THE ABSENCE OF (a) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR (b) AN OPINION OF COUNSEL, IN A FORM
REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR (ii) UNLESS SOLD PURSUANT TO RULE 144
UNDER SAID ACT.
1.6
Each share of GP
Preferred Stock purchased by InvestCo may be exchanged for and
converted into shares of Green Planet Common stock on a one
thousand-for-one basis. Any fractional shares that would result
from such exchange will be rounded up to the next highest whole
number. Each such share so issued shall contain a legend
restricting the transfer thereof in accordance with applicable
securities laws.
1.7
No
Dilution .
(a) InvestCo shall neither effect, nor fix any record
date with respect to, any stock split, stock dividend, reverse
stock split, recapitalization, or similar change in InvestCo's
Common Stock between the date of this Agreement and the Closing
Date. (b) Green Planet shall neither effect, nor fix
any record date with respect to, any stock split, stock dividend,
reverse stock split, recapitalization, or similar change in Green
Planet's Common Stock between the date of this Agreement and the
Closing Date.
1.8
Closing
. The consummation of
the Transaction (the "Closing" ) shall take place at the
offices of Arnstein & Lehr, LLP, on a date to be mutually
agreed upon by the Parties, which shall be no later than June 30,
2009. The date on which the Closing actually takes place is
referred to as the “Closing Date.”
Page 3 of 12
1.9
Closing
Events .
At the Closing, each of the Parties hereto shall execute,
acknowledge, and deliver (or shall cause to be executed,
acknowledged, and delivered) any and all stock certificates,
officers’ certificates, agreements, resolutions, schedules,
or other instruments required by this Agreement to be so delivered
at or prior to the Closing, together with such other items as may
be reasonably requested by the other Parties hereto and their
respective legal counsel in order to effectuate or evidence the
Transactions. If agreed to by the Parties, the Closing may
take place through the exchange of documents (other than the
exchange of stock certificates) by efax, fax, email and/or express
courier.
1.10
Escrow
Account .
Thirty-five percent (35%) of the shares of InvestCo Common
Stock being issued to Green Planet as set forth herein shall be
deposited into an escrow account. Said escrow account shall provide
that the shares may be released to the respective Party upon the
occurrence or non-occurrence of certain performance events as set
forth in that certain escrow agreement executed by the Parties
simultaneously with this Agreement, which is attached hereto as
Exhibit A and incorporated herein as if fully set forth.
ARTICLE
II
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF GREEN PLANET
As an inducement to, and
to obtain the reliance of InvestCo, Green Planet represents and
warrants as follows:
2.1
Organization . Green Planet 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 Green Planet are
attached hereto as Schedule 2.1. Green Planet 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 Green
Planet’s organizational documents. Green Planet 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. Green Planet 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. Green Planet is a
corporation in good standing under the laws of the state of
Delaware and 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 Green
Planet is in good standing as a corporation in the State of
Delaware.
2.2
Capitalization
. Green Planet has
a total of 15,589,367 issued and outstanding shares of common
stock, each of which is legally issued, fully paid, and
non-assessable. All such shares of Green Planet Common Stock
are held of record by the Green Planet Shareholders. Green
Planet has no other capital stock, warrants, options, or other
securities convertible into shares of Green Planet capital stock,
outstanding other than the Green Planet Common Stock.
2.3
Taxes
.
Page 4 of 12
(a)
Green Planet has filed
all Federal, state and local tax returns required to be filed by it
from its inception to the date hereof. All such returns are
complete and accurate in all material respects.
(b)
Green Planet has no
liabilities with respect to the payment of Federal, state, county,
local, or other taxes, including any deficiencies, interest, or
penalties (collectively "Taxes" ), except for taxes accrued
but not yet due and payable, for which Green Planet may be liable
in its own right or as a transferee of the assets of, or as a
successor to, any other corporation or entity.
(c)
No deficiency for any
Taxes has been proposed, asserted or assessed against Green Planet.
There has been no Tax audit, nor has there been any notice to
Green Planet by any taxing
