PURCHASE & SALE AGREEMENT
Dated: October 15, 2006
AMONG: Chenzhou Global Graphite Inc., a company incorporated in Chenzhou City,
Hunan Province, People's Republic of China ("CGGI");
AND: Western Mercantile Enterprises (Canada) Inc., a corporation incorporated
under the laws of the Province of British Columbia, Canada ("WMEC", or
"Shareholder")
AND: iCarbon Corporation, a company incorporated in the State of Nevada, the
United States (ICARBON")
WHEREAS at this date WMEC is the sole registered owner of the issued and
outstanding capital of CGGI and holds that in trust for the benefit of
Shareholders of WMEC.
WHEREAS CGGI and all of its Shareholders have agreed to sell 100% of the issued
and outstanding share capital of CGGI and ICARBON has agreed to buy all the
share capital of CGGI upon the terms and conditions set forth herein.
WHEREAS the Shareholder authorized CGGI to take the necessary actions on behalf
of the Shareholder to complete the sale of their Shares
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants contained herein, CGGI, WMEC and ICARBON agree as follows:
ARTICLE I
DEFINED TERMS AND INTERPRETATION
1.1 Definitions. Whenever used in this Agreement, unless there is something in
the subject matter or context inconsistent therewith, the following words and
terms shall have the following meanings, respectively:
a. "Closing" means the earliest date when all deliverables required to be
delivered by the parties can be delivered, and a date that is no later
than sixty (60) days from the date first written above, unless extended by
amendment and unanimous agreement of the parties.
b. "Consents" means consents, approvals, authorizations, and any form of
agreement necessary to give valid affect to this Agreement.
c. "Contractual or Other Right or Obligation" means any form of agreement,
contract, instrument, license, permit, registration, judgement, order,
decree, indenture, lease, engagement, or commitment.
d. "Encumbrance" means any form of agreement, option, understanding,
commitment, equity, covenant, mortgage, charge, security interest, lien,
adverse claim, pledge, demand, action, restriction, order, judgement,
decree, right or privilege affecting or capable of affecting title to any
conveyance between the Parties.
e. "ICarbon Shares" shall mean the common equity shares in the capital of
iCarbon, which iCarbon agrees to exchange in part consideration for 100%
of the share capital of CGGI pursuant to this Agreement.
f. "Parties" means the parties to this Agreement; CGGI, WMEC and iCarbon
Corporation, and "Party" means anyone of them.
g. "Permitted encumbrances" means defects or irregularities in title which
are of a minor nature and do not, in the aggregate, adversely affect the
interest of the Parties.
h. "Shareholder" mean collectively the beneficial owners of all the issued
and outstanding shares of CGGI registered to and held in trust by WMEC,
whether held by WMEC or distributed to shareholders of WMEC while this
agreement is in effect.
i. "CGGI Shares" means all of the common equity shares of CGGI
beneficially owned by the Shareholder.
j. "Taxes" means any municipal taxes or real estate taxes or other taxes,
assessments, levies, imposts or charges payable to or exigible by any
governmental agency, authority or instrumentality upon the Property.
k. "this Agreement", "herein", "hereto", "hereby", "hereunder", "hereof"
and similar expressions refer to this Agreement and not to any particular
clause, sub-clause, section, subsection or paragraph, or other portion
hereof, and include amendments hereto, any agreement which is
supplementary to or in amendment or confirmation of this Agreement and any
schedules hereto or thereto;
1.2 Gender and Number. Any reference in this Agreement to gender shall include
all genders and words used herein importing the singular number only shall
include the plural and vice versa.
1.3 Headings, Etc. The division of this Agreement into Articles, Sections,
Subsections and other subdivisions and the insertion of headings are for
convenience of reference only, and shall not affect or be utilized in the
construction or interpretation hereof.
1.4 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the People's Republic of China applicable therein.
The Parties irrevocably submit to the jurisdiction of the courts of the People's
Republic of China.
1.5 Knowledge. Any reference to the knowledge of the Parties shall mean the
actual knowledge of such party, without inquiry and not constructive knowledge.
The actual knowledge of a director or officer of the Corporation shall for the
purposes of determining actual knowledge of a Shareholder who is also a director
and Officer be limited to the period of time that such individual was an officer
or director of the Corporation. The onus of proof on demonstrating actual
knowledge is on the Party alleging same.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CGGI
2.1 Representations and Warranties of CGGI and WMEC. CGGI and WMEC represent and
warrant to ICARBON as follows, and acknowledge ICARBON is relying upon such
representations and warranties in connection with the entering into of this
Agreement and the consummation of the transactions contemplated hereby:
2.1.1 Subsistence. CGGI and WMEC each have the necessary power and authority to
enter into this Agreement and to convey that to be conveyed by the terms hereof.
2.1.2 Consents. Consents or filings required to be obtained or made by CGGI or
WMEC to complete the transactions contemplated by this Agreement, can and will
be made, and CGGI and WMEC are not aware of any consents required to be obtained
other than consents listed herein, or by their nature, inferred or implied to
have been obtained, or will be obtained by CGGI or WMEC.
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2.1.3 Litigation. There is no action, suit, or proceeding, at law or in equity;
no claim or demand by any person or entity, or any investigation, arbitration or
any administrative or other proceeding pending, or, to the best of the knowledge
of CGGI, threatened against or affecting its ability to perform the obligations
of this Agreement other than performance of things made known to ICARBON in
writing, the remedy for which can be obtained by CGGI or is otherwise satisfied
by this agreement.
2.1.4 Restrictive Documents. CGGI is not subject to or a party to any charter or
by-law restriction, encumbrance, contractual or other right or obligation, law,
rule, ordinance, regulation, or any other restriction of any kind or character
preventing the consummation of the transactions contemplated by this Agreement.
2.1.5 Compliance with Laws. WMEC is selling the CGGI Shares in compliance with
all applicable laws, rules and regulations of each jurisdiction and with all
applicable orders, judgements and decrees by which WMEC is bound, and WMEC is
not in breach of any such laws, rules, regulations, orders, judgements and
decrees.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ICARBON
3.1 Representations and Warranties of ICARBON. ICARBON represents and warrants
to CGGI and WMEC as follows and acknowledges the Parties are relying upon such
representations and warranties in connection with the entering into of this
Agreement and the consummation of the transactions contemplated hereby:
3.1.1 Due Incorporation and Subsistence of ICARBON. ICARBON is duly
incorporated, organized and validly subsisting and in good standing under the
laws of the State of Nevada.
3.1.2 Consents. There are no Consents or filings required to be obtained or made
by ICARBON in order to complete the transactions contemplated by this Agreement
that cannot be obtained.
3.1.3 Restrictive Documents. ICARBON is not subject to or party to any charter
or by-law restriction, encumbrance, contractual or other right or obligation,
law, rule, ordinance, regulation, or any other restriction of any kind or
character preventing consummation of the transaction contemplated by this
Agreement or compliance by ICARBON with the terms, conditions and provisions
hereof.
3.1.4 Filings. ICARBON is up-to-date in all filings with all requisite
regulatory agencies and is in good standing with respect to all requisite
filings.
3.1.5 Litigation. There is no action, suit, proceeding, at law or in equity,
claim or demand by any person or entity, or any investigation, arbitration or
any administrative or other proceeding by or before, or to the best knowledge of
ICARBON, threatened against or affecting ICARBON to perform its obligations in
respect of this Agreement.
3.1.6 Compliance with Laws. ICARBON is performing this Agreement in compliance
with all applicable laws, rules and regulations of each jurisdiction in which
ICARBON is bound and with all applicable orders, judgements and decrees by which
it is bound and is not in breach of any such laws, rules, regulations, orders,
judgements and decrees.
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ARTICLE IV
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
4.1 Survival. All covenants, representations and warranties made herein or in
any agreement, certificate or other document delivered or given pursuant to this
Agreement, other than those which are expressly waived in writing as part of the
Closing shall survive the execution and delivery of this Agreement for a period
of 180 days after Closing.
4.2 Certain Interpretation. Nothing written here within shall be interpreted to
mean or infer meaning the obligations of the Parties each to each other with
respect to the subject matter set out hereunder allows for either Party to act
independently of the other Party, or act together with other parties who are not
a Party to this Agreement, at any time unless expressly agreed to in writing by
the Parties to this Agreement.
ARTICLE V
CLOSING
5.1 Closing. Closing will occur on a date agreed to by the parties however a
date that shall be on or before sixty (60) days from the date first written
above; deliverables required by closing shall be delivered at the earliest time
practicable by the parties, each to each other.
5.2 Deliverables by WMEC. At the time of Closing, WMEC shall have the CGGI
Shares in good and marketable form for transfer to ICARBON.
5.3 Deliverables by CGGI. At the time of Closing, CGGI shall deliver all
incorporation documents, contracts, licenses, permits, certifications, patent
applications, and generally all property of CGGI to ICARBON. CGGI shall deliver
all things that would be customary to be delivered at closing for a transaction
similar in nature.
5.4 Deliverables by ICARBON. At the time of Closing, ICARBON shall have the
ICarbon Shares in good and marketable form for transfer to the Shareholder.
ARTICLE VI
CONSIDERATION
6.1 Consideration. The Purchase Price is satisfied by issuance of 800,000 common
equity shares in the capital stock of iCarbon Corporation together with credit
of all advances pursuant to a license agreement between CGGI and ICARBON as
licensee, which advances were or will be made by ICARBON prior to the date of
Closing.
6.2 Share Exchange. At the time of Closing, pursuant to 6.1 above, WMEC will
deliver the CGGI Shares and ICARBON will deliver the ICarbon Shares in the
amounts called for here within.
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ARTICLE VII
MISCELLANEOUS
71 Further Assurances. To the extent reasonable and practicable and permitted by
law, each of the Parties upon the request of the other shall execute,
acknowledge and deliver or cause to be done, all such further acts, deeds,
documents, assignments, transfers, conveyances and assurances as may be
reasonably necessary or desirable to effect complete consummation of the
transactions contemplated by this Agreement.
72 Successors in Interest. This Agreement and the provisions hereof shall be for
the benefit of and be binding upon the Parties and their respective heirs,
executors, personal representatives, successors and permitted assigns, as the
case may be.
73 Notices. Any notice, document or other communication required or permitted by
this Agreement to be given by a party hereto shall be in writing and is
sufficiently given if delivered personally, or if sent by prepaid ordinary mail,
or if transmitted by any form of telecommunication to either party to this
Agreement as listed below, or to any other address given by a Party:
iCarbon Corporation
David Laudeman, CFO
106 Lakeside Avenue, PO Box 210
Delano, PA 18220
Chenzhou Global Graphite Inc.
Shi-Wei Tang, CEO
Hunan Chenzhou Shizhuyuan Industrial Park
Chenzhou City, Hunan Province
Peoples Republic of China
7.4 Assignment. This Agreement may not be assigned by a party to this Agreement
without prior written consent of each other party.
7.5 Execution in Counterparts. This Agreement may be executed by the Parties in
separate counterparts or duplicates, each of which when so executed and
delivered, shall be an original, but all such counterparts or duplicates shall
together constitute one and the same instrument.
7.6 Entire Agreement. This Agreement together with any other agreements or
documents to be delivered pursuant to this Agreement, sets forth the agreement
among the Parties pertaining to the specific subject matter hereof and does
replace and supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written. There are no warranties, representations
or other agreements, whether oral or written, expressed or implied, statutory or
otherwise, between the Parties in connection with the subject matter hereof
except as specifically set forth herein.
7.7 Amendments. No supplement, modification, waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to be bound
thereby.
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7.8 Waiver. No delay or failure of any party in exercising any right or remedy
hereunder and no partial exercise of any such right or remedy shall be deemed to
constitute a waiver of such right or remedy or any other rights or remedies of
such party hereunder. No waiver of any provision of this Agreement shall
constitute a waiver of any other provisions, whether or not similar, nor shall
such waiver constitute a continuing waiver unless otherwise expressly provided.
Any consent by a party to or any waiver by a Party of any breach of any
provision of this Agreement shall not constitute consent, or waiver of any
subsequent or other breach of the provisions of this Agreement.
7.9 Severability. Each of the provisions of this Agreement (and each part of
each such provision) is severable from every other provision hereof and every
other part thereof. In the event that any provision, or part thereof contained
in this Agreement or the application thereof to any circumstance shall be
invalid, illegal or unenforceable, in whole or in part, in any jurisdiction and
to any extent: (a) the validity, legality or enforceability of such provision,
or such part thereof in any other jurisdiction and of the remaining provisions
contained in this Agreement,(or the remaining parts of such provision, as the
case may be, shall not in any way be affected or impaired thereby; (b) the
application of such provision or such part thereof to circumstances other than
those as to which it is held invalid, illegal or unenforceable shall not in any
way be affected or impaired thereby; (c) such provision or such part thereof
shall be severed from this Agreement and ineffective to the extent of such
invalidity, illegality or unenforceability in such jurisdiction and in such
circumstances;
7.10 Schedules. Schedules attached herewith form part of this Agreement.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date first
above written.
iCarbon Corporation
By:
/s/James E. Olive
- ------------------
James E. Olive, CEO
Chenzhou Global Graphite Inc. Western Mercantile Enterprises (Canada) Inc.
By: By:
/s/Shi-Wei Tang /s/Shi-Wei Tang
- ---------------- ----------------
Shi-Wei Tang, CEO Shi-Wei Tang, Authorized Signatory
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