CONVERTIBLE NOTE PURCHASE AGREEMENT
This CONVERTIBLE NOTE PURCHASE AGREEMENT (this "Agreement"),
dated as of September 1, 2009, is by and between Green Planet Bioengineering
Co., Ltd., a Delaware corporation (the "Company"), and ONE Holdings, Corp., a
Florida corporation (the "Purchaser").
RECITALS
A. The Company and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Rule 506 of Regulation D ("Regulation D") as promulgated by the United
States Securities and Exchange Commission (the "SEC') under the Securities Act
of 1933, as amended (the "1933 Act").
B. The Company has authorized the issuance of a 10% Convertible
Bridge Note in the aggregate Principal Amount of $300,000 in the form attached
hereto as Exhibit A (the 'Note"), which Note provides, among other things, (i)
that the Note may, in the sole discretion of the Purchaser, be converted into
shares of the Company's Common Stock, at a price per share of $0.50 as may be
adjusted pursuant to the Note (the "Conversion Shares'), and (ii) for the
repayment of the Principal Amount and Interest in accordance with the terms of
the Note.
C. The Purchaser wishes to purchase the Note, upon the terms and
conditions stated in this Agreement.
AGREEMENTS
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions in Other Transaction Documents.
Any term defined in the Note shall have the meaning as therein defined unless
otherwise defined herein.
Section 1.2. Definitions. As used in this Agreement, the
following terms have the meanings indicated:
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly, in (a)
the acquisition of all or substantially all of the assets of a Person, or of
any business or division of a Person, or (b) a merger or consolidation or any
other combination with another Person.
"Affiliate" for purposes hereof means, with respect to any
Person, another Person that, directly or indirectly, (i) has a 10% or more
equity interest in that Person, (ii) has 10% or more common ownership with that
Person, (iii) controls that Person, (iv) is controlled by that Person or (v) is
under common control with that Person.
"Business Day" means any day other than Saturday and Sunday and
any other day on which banking institutions in the State of Florida are
required or authorized by law to close.
"Change of Control" means:
(i) a sale or transfer of all or substantially all
of the assets of the Company on a consolidated basis (computed on the
basis of book value, determined in accordance with generally accepted
accounting principles consistently applied, or fair market value, as
determined by the Board of Directors of the Company in its reasonable
good faith judgment) in any transaction or series of related
transactions;
(ii) any merger, consolidation or reorganization to
which the Company is a party, except for a merger, consolidation or
reorganization in which after giving effect to such merger,
consolidation or reorganization, the holders of the Company's
outstanding capital stock (on a fully-diluted basis) immediately prior
to the merger, consolidation or reorganization will own immediately
following such merger, consolidation or reorganization, a number of
shares of the Company's outstanding capital stock (on a fully diluted
basis) having the ordinary voting power to elect a majority of the
members of the Board of Directors of the Company; or
(iii) the consummation of a public offering of Common
Stock pursuant to a registration statement declared effective by the
SEC pursuant to a registration statement on Form S-1 or similar Form.
"Common Stock" means the common stock, par value $0.001 per
share, of the Company.
"Common Stock Equivalents" means debt or equity securities of
the Company that are convertible into or exercisable or exchangeable for shares
of Common Stock.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability, contingent or otherwise, of that Person with respect to any
indebtedness, lease, dividend or other obligation of another Person if the
primary purpose or intent of the Person incurring such liability, or the
primary effect thereof, is to provide assurance to the obligee of such
liability that such liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
liability will be protected (in whole or in part) against loss with respect
thereto.
"Control" or "controls" for purposes hereof means that a Person
has the power, direct or indirect, to conduct or govern the policies of another
Person.
"Family Group" means, with respect to an individual, such
individual's spouse and descendants (whether natural or adopted) and any trust,
partnership, corporation or other entity solely for the benefit of such
individual and/or such individual's spouse and/or descendants.
"GAAP" means the United States generally accepted accounting
principals, consistently applied.
"Indebtedness" of any Person means, without duplication (A) all
indebtedness for borrowed money, (B) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of business), (C) all
reimbursement or payment obligations with respect to letters of credit, surety
bonds and other similar instruments, (D) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets or businesses,
(E) all indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with
respect to any property or assets acquired with the proceeds of such
indebtedness (even though the rights and remedies of the seller or bank under
such agreement in the event of default are limited to repossession or sale of
such property), (F) all monetary obligations under any leasing or similar
arrangement which, in connection with GAAP, consistently applied for the
periods covered thereby, is classified as a capital lease, (G) all indebtedness
referred to in clauses (A) through (F) above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any mortgage, lien, pledge, change, security interest or other
encumbrance upon or in any property or assets (including accounts and contract
rights) owned by any Person, even though the Person which owns such assets or
property has not assumed or become liable for the payment of such indebtedness,
and (H) all Contingent Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (A) through (G) above.
"Person" means an individual, corporation, partnership, joint
venture, limited liability company, trust, or unincorporated organization, or a
government or any agency or political subdivision thereof, or any other entity
or business form.
"Private Offering" means the sale by the Company of Common
Stock, Common Stock Equivalents, or other securities of Company in one or more
transactions primarily intended to raise capital in which the aggregate gross
proceeds received by the Company equals or exceeds 1.5 times the Principal
Amount as defined in the Note (excluding the proceeds from the sale of the Note
and the exchange of the Note for Common Stock.
"SEC" means the United States Securities and Exchange
Commission.
"Subsidiaries" means any entity in which the Company, directly
or indirectly, owns capital stock or holds an equity or similar interest.
"Transaction Documents" means each of this Agreement and the
Note each dated as of the date hereof or as of the Closing Date.
The foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms. The use of the word "including" herein
shall be interpreted to mean "including, without limitation,' unless the
context clearly requires another interpretation.
ARTICLE 2
PURCHASE OF NOTE
Section 2.1. Purchase of Note. Subject to the satisfaction
(or waiver) of the terms and conditions set forth herein, including those set
forth in Sections 6.1(a) and 6.2(a) below, the Purchaser shall purchase the
Note in the aggregate principal amount of $300,000. The Company and the
Purchaser acknowledge and agree that on June 22, 2009, US$50,000 was funded to
the Company, which amount together with US$250,000 to be funded within five (5)
days of the Closing shall constitute the full amount of the purchase price
("Purchase Price") for the Note and the aggregate Principal Amount due from the
Company to Purchaser under the Note.
Section 2.2. Closing Date. Subject to satisfaction (or
waiver) of the conditions to the Closing set forth in Section 6.1(a) and 6.2(a)
(or such other date as is mutually agreed to by the Company and the Purchaser),
the closing shall occur at 10:00 a.m. Florida Time, on September 1, 2009 (the
"Closing Date"). The Closing shall occur at the offices of the Purchaser 18101
Collins Avenue, Suite 5207, Sunny Isles Beach, FL, 33160.
Section 2.3 Form of Payment. Within five (5) days from the
Closing Date (i) the Purchaser shall pay the balance of US$250,000 of the
Purchase Price to the Company for the Note to be issued and sold to the
Purchaser at the Closing, by wire transfer of immediately available funds in
accordance with the Company's written wire instructions, and (ii) the Company
shall deliver to the Purchaser the Note in the Principal Amount of $300,000
duly executed on behalf of the Company and registered in the name of the
Purchaser or its designee.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that:
Section 3.1. Organization of the Company. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated as set forth on Schedule
3.1, and has the requisite corporate power and authority to own, use, lease and
license its assets and its properties and to carry on its businesses as now
being conducted. The Company is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which its ownership
of property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect. As
used in this Agreement, "Material Adverse Effect" means any material adverse
effect on the business, properties, assets, operations, results of operations,
financial condition or prospects of the Company and its Subsidiaries, taken as
a whole, or on the transactions contemplated hereby or by the agreements and
instruments to be entered into in connection herewith, or on the authority or
ability of the Company to perform its obligations under this Agreement and the
other Transaction Documents.
Section 3.2. Authority. The Company has all requisite power
and authority to enter into this Agreement and the other Transaction Documents
to which it is a party and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of the this Agreement and the other
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action
on the part of the Company, and no further action is required on the part of
the Company to authorize this Agreement or the other Transaction Documents or
the transactions contemplated hereby and thereby. This Agreement and the other
Transaction Documents have been duly executed and delivered by the Company and
constitutes the valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors' rights and
remedies.
Section 3.3 Issuance of Securities. The Note has been duly
authorized and, upon issuance in accordance with the terms hereof, shall be
free from all taxes, liens and charges with respect to the issue thereof. At
least 1,000,000 shares of Common Stock have been duly authorized and reserved
for issuance upon conversion of the Note. Upon conversion in accordance with
the Note, the Conversion Shares will be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof, with the holders being entitled to all rights accorded to a
holder of Common Stock.
Section 3.4. No Conflicts. The execution, delivery and
performance of this Agreement and the other Transaction Documents by the
Company and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the reservation for issuance
and issuance of the Conversion Shares) will not (i) result in a violation of
the Company's Articles of Incorporation or the Bylaws or (ii) in any material
way conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any material
agreement, indenture or instrument to which the Company is a party or by which
it or its assets are bound, or (iii) result in a violation of any order,
judgment or decree applicable to the Company or by which any property or asset
of the Company is bound or affected which would have a Material Adverse Effect.
Section 3.5. Government Approvals. Except for filings, if
any, required by state securities laws, to the best of the Company's knowledge,
no authorization, consent, approval, license, qualification or formal exemption
from, nor any filing, declaration or registration with, any court, governmental
agency, regulatory authority or political subdivision thereof, any securities
exchange or any other Person is required in connection with the execution,
delivery or performance of the obligations thereunder by the Company of this
Agreement or the other Transaction Documents to which it is a party.
Section 3.6 Equity Capitalization. All of such outstanding
shares havebeen validly issued and are fully paid and non-assessable and none
of suchshares were, offered or sold by the Company in violation of any
applicablefederal or state securities or blue sky laws or the rules and
regulations thereunder or any statutory or contractual preemptive rights or any
other similar rights. Except as disclosed in Schedule 3.6: (i) the issuance of
the Note and the Conversion Shares are not subject to preemptive rights or any
other similar rights or any liens or encumbrances suffered or permitted by the
Company; (ii) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of the
Company, or contracts, commitments, understandings or arrangements by which the
Company or any of its Subsidiaries is or may become bound to issue additional
shares of capital stock of the Company or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of the
Company; (iii) there are no agreements or arrangements under which the Company
is obligated to register the sale of any of their securities under the 1933
Act; (iv) there are no outstanding securities or instruments of the Company
which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company is or may
become bound to redeem a security of the Company; (v) there are no securities
or instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Note or Conversion Shares; and (vi) the
Company does not have any stock appreciation rights or "phantom stock" plans
or agreements or any similar plan or agreement. The Company has furnished to
the Purchaser true and correct copies of the Company's Articles of
Incorporation, as amended and as in effect on the date hereof (the "Articles of
Incorporation"), and the Company's Bylaws, as amended and in effect on the date
hereof (the "Bylaws'), and true and correct detailed descriptions of the terms
of all securities convertible into or exercisable for Common Stock and of the
material rights of the holders thereof in respect thereto.
Section 3.7 Transactions With Affiliates. Except as set
forth on Schedule 3.7 and other than the grant of stock options disclosed on
Schedule 3.6, none of the officers, directors, or stockholders of the Company
is presently a party to any transaction with the Company, including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any such officer, director or
stockholders or, to the knowledge of the Company, any corporation, partnership,
trust or other entity in which any such officer, director, or stockholders has
a substantial interest or is an officer, director, trustee or partner.
Section 3.8 Financial Statements. The financial
statements, including the balance sheet of the Company as of December 31, 2008
(the "Balance Sheet"), together with the statement of operations and statement
of cash flows for the year ended December 31, 2008 (the "Financial Statements")
filed by the Company with the U.S. Securities and Exchange Commission have been
prepared in accordance with GAAP and in all material respects fairly and
accurately present the financial position, results of operations and cash flows
of the Company as of the dates and for the periods reported.
Section 3.9 Absence of Undisclosed Liabilities. The
Company does not have any material debts, liabilities or obligations of any
nature arising out of any transaction at or prior to the Closing, or any state
of facts or condition existing at or prior to the Closing, except (a) to the
extent reflected and accrued for or reserved against in the Financial
Statements, (b) for liabilities specifically delineated on Schedule 3.9, and
(c) for liabilities and obligations which have arisen after the date of the
latest Financial Statements in the ordinary course of business consistent with
past custom and practice.
Section 3.10 Indebtedness and Other Contracts. Except as
disclosed in Schedule 3.10, the Company (i) has no outstanding Indebtedness,
(ii) is not a party to any contract, agreement or instrument, the violation of
which, or default under which, by the other party(ies) to such contract,
agreement or instrument would result in a Material Adverse Effect, (iii) is not
in violation in any material respect of any term of or in default under any
contract, agreement, instrument or Indebtedness, or (iv) is not a party to any
contract, agreement or instrument, the performance of which, in the judgment of
the Company's officers, has or is expected to have a Material Adverse Effect.
Section 3.11 Absence of Litigation. To the best of the
Company's knowledge, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, threatened against or
affecting the Company which would have a Material Adverse Effect.
Section 3.12 Title. The Company has good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by it, in each case free and clear of all liens,
encumbrances and defects except such as are described in Schedule 3.12. Any
real property and facilities held under lease by the Company is held by it
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company.
Section 3.13 Intellectual Property Rights. To the knowledge
of the Company's executive officers, without inquiry, no product or service
marketed or sold (or proposed to be marketed or sold) by the Company violates
any license or infringes any intellectual property rights of any other party.
The Company has not received any communications alleging that the Company has
violated or, by conducting its business, would violate any of the patents,
trademarks, service marks, trade names, copyrights, trade secrets, mask works
or other proprietary rights or processes of any other Person. To the knowledge
of the Company's executive officers, without inquiry, it will not be necessary
to use any inventions of any of its employees or consultants (or Persons it
currently intends to hire) made prior to their employment by the Company.
Section 3.14 No Material Adverse Change. Since December 31, 2008, there has
not been any material adverse change, or any event or development which,
individually or together with other such events, could result in a material
adverse change, in the business, properties, assets, operations, results of
operations, financial condition or prospects of the Company or any of its
Subsidiaries.
Section 3.15 Brokers. The Company has dealt with no broker,
finder, commission agent, or other similar person in connection with the offer
or sale of the Securities, and the transactions contemplated by this Agreement,
and is under no obligation to pay any broker's fee, finder's fee, or commission
in connection with such transactions.
Section 3.16 Full Disclosure. No representation or warranty
made by the company in this Agreement and no certificate or document furnished
or to be furnished to the Purchaser pursuant to this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein
not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Section 4.1 Authority. The Purchaser has all requisite
power and authority to enter into this Agreement and the other Transaction
Documents and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the other Transaction
Documents and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the part
of the Purchaser, and no further action is required on the part of the
Purchaser to authorize this Agreement or the other Transaction Documents or the
transactions contemplated hereby and thereby.
Section 4.2 Purchase Entirely for Own Account. The Note
and the Conversion Shares, if any (collectively the "Securities") will be
acquired by the Purchaser for investment for its own account, not as nominee or
agent, and not with a view to the resale or distribution of any part thereof in
violation of the 1933 Act and for investment purposes only. No other person
has or will have a direct or indirect beneficial interest in the securities,
except for owners and beneficiaries of the Purchaser. The Purchaser agrees not
to sell, hypothecate or otherwise transfer the Purchaser's securities unless
the securities are registered under federal and applicable state securities
laws or unless, the Purchaser shall have first delivered to the Company a
written opinion of counsel (concurred with by counsel to the Company) to the
effect that the proposed sale or transfer is exempt from the registration
provisions of the Act and all applicable state securities laws.
Section 4.3 Restricted Securities. The Purchaser
understands that the Securities are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may not be resold without
registration under the 1933 Act or any other applicable securities laws except
in certain limited circumstances.
Section 4.4 Accredited Purchaser Status. The Purchaser
represents to the Company that it is (i) an "accredited investor" within the
meaning of Rule 501of Regulation D promulgated under the 1933 Act (ii)
experienced in making investments of the kind described in this Agreement and
the related documents, (iii) able, by reason of the business and financial
experience of its officers and/or managers and professional advisors (who are
not affiliated with or compensated in any way by the Company or any of its
affiliates or selling agents), to protect its own interests in connection with
the transactions described in this Agreement, and the related documents, and
(iv) able to afford the entire loss of its investment in the securities being
purchased by the Purchaser from the Company.
Section 4.5 Securities to be Legended. The Purchaser
understands that the Securities will bear a legend on the face thereof (or on
the reverse thereof with reference to such legend on the face thereof) as
follows:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A)
REGISTRATION OF THE SECURITIES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B)
AN EXEMPTION FROM SUCH REGISTRATION UNDER SAID ACT OR
APPLICABLE STATE SECURITIES LAWS."
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities upon which it
is stamped, if (i) such Securities are registered for sale under the 1933 Act,
or (ii) such holder provides the Company with reasonable assurances that the
Securities can be sold, assigned or transferred pursuant to Rule 144
promulgated under the 1933 Act.
Section 4.6 Company Information and Financials. The
Purchaser has received and carefully reviewed the Company's Disclosure
Materials, including the Financial Statements. The Purchaser has had a
reasonable opportunity to ask questions of and receive answers from the Company
concerning the Company, and all such questions, if any, have been answered to
the full satisfaction of the Purchaser. The Purchaser has had the opportunity
to receive and review all other relevant documents concerning the Company.
The Purchaser has such knowledge and expertise in financial and business
matters that the Purchaser is capable of evaluating the merits and risks
involved in an investment in the securities purchased hereunder and
acknowledges that an investment in the securities purchased hereunder entails a
number of significant risks, and Company should only be invested if the
Purchaser is able to withstand the total loss of Purchaser's investment.
Except as set forth in this Agreement, no representations or warranties have
been made to the Purchaser by the Company or any agent, employee or affiliate
of the Company and in entering into this transaction the Purchaser is not
relying upon any information, other than the results of an independent
investigation by the Purchaser or Purchaser's representative.
Section 4.7 Risk Factors. The Purchaser understands that
such Purchaser's investment in the Securities involves a high degree of risk.
The Purchaser warrants that such Purchaser is able to bear the complete loss of
such Purchaser's investment in the Securities.
Section 4.8 Brokers. The Purchaser has dealt with no
broker, finder, commission agent, or other similar person in connection with
the offer or sale of the Securities, and the transactions contemplated by this
Agreement, and is under no obligation to pay any broker's fee, finder's fee, or
commission in connection with such transactions.
Section 4.9 Unregistered, Restricted Securities. The
Purchaser understands that the Securities have not been registered under the
1933 Act or the securities laws of any state, based upon an exemption from such
registration requirements for non-public offerings pursuant to Section 4(2) of
the 1933 Act, or other exemptions thereunder, Regulation D of the 1933 Act and
under such exemptive provisions of state securities laws. The Purchaser
understands that the Securities are being offered and sold expressly
conditioned upon the satisfaction of specific exemptions from the securities
registration requirements of federal and state securities laws and that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of the Purchaser set
forth herein in order to determine the applicability of such exemptions and the
suitability of the Purchaser to acquire the Securities.
Section 4.10 Compliance with Law. The Purchaser's trading
activities with respect to shares of the Company's common stock will be in
compliance with all applicable state and federal securities laws, rules and
regulations.
Section 4.11 Full Disclosure. No representation or
warranty made by the Purchaser in this Agreement and no certificate or document
furnished or to be furnished to the Company pursuant to this Agreement contains
or will contain any untrue statement of a material fact, or omits or will omit
to state a material fact necessary to make the statements contained herein or
therein not misleading. Except as set forth or referred to in this Agreement,
Purchaser does not have any agreement or understanding with any person relating
to acquiring, holding, voting or disposing of any equity securities of the
Company.
ARTICLE 5
CERTAIN COVENANTS
Section 5.1. Restrictions. For so long as the Note is
outstanding, the Company shall not without the prior written consent of the
Purchaser issue any capital stock of form of debt that has a maturity date or
becomes due and payable or redeemable prior to the Maturity Date (as defined in
the Note) or that is senior to the Note.
Section 5.2 Corporate Existence. So long as the Note is
outstanding, the Company shall maintain its corporate existence and shall not
voluntarily liquidate, dissolve or effect a recapitalization or reorganization
in any form of transaction, without the prior written consent of the holders of
a majority of the aggregate principal amount outstanding under the Note. If
the Company shall request the consent of the Purchaser hereunder and the
Purchaser shall not have either provided or denied such consent within 5
business days after the Company's request, then the Purchaser shall have been
deemed to have provided the consent requested.
Section 5.3 Transactions With Affiliates. So long as any
Note is outstanding, the Company shall not enter into, amend, modify or
supplement any agreement, transaction, commitment or arrangement with any of
its officers, directors, persons who were officers or directors of the Company
at any time during the previous year, stockholders who beneficially own 10% or
more of the Common Stock or any other class of equity of the Company, or
Affiliates of the Company or with any individual related by blood, marriage or
adoption to any such individual or with any entity in which any such entity or
individual owns a 10% or more beneficial interest, except for any agreement,
transaction, commitment or arrangement that is approved by a majority of the
directors of the Company.
Section 5.4 Reservation of Shares. The Company shall take
all action necessary to at all times have authorized, and reserved for the
purpose of issuance, no less than 100% of the number of shares of Common Stock
needed to provide for the issuance of the Conversion Shares upon conversion of
the Note.
Section 5.5 Other Information. So long as the Note remains
outstanding, and so long as there shall not have been a Change of Control, the
Company will deliver to any holder of the Note with reasonable promptness, all
such other data and information as from time to time may be reasonably
requested by the Purchaser or such other data as the Company may from time to
time furnish to any of the holders of its securities; provided, that any
information that the Company indicates is confidential shall be kept
confidential by the Purchaser.
Section 5.6 Inspection Rights. So long as there shall
not have been a Change of Control, the Purchaser, upon giving prior written
notice to the Company, shall have reasonable access to the Company's books and
records, the Purchaser or holder may, at its own expense, make copies of all
such books and records.
Section 5.7 Re-issuance of Note.
(a) Transfer of the Note. If the Note issued hereunder is
to be transferred in accordance with the terms thereof and with applicable
securities laws, the holder thereof shall surrender the Note to the Company,
whereupon the Company will forthwith issue and deliver upon the order of the
holder of the Note a new Note (in accordance with Section 5.7(c)), registered
as the holder of such Note may request, representing the outstanding Principal
Amount (as defined in such Note) being transferred by the Holder and, if less
than the entire outstanding Principal Amount is being transferred, a new Note
(in accordance with Section 5.7(c)) to the holder of the Note representing the
outstanding Principal Amount not being transferred.
(b) Lost, Stolen or Mutilated Note. Upon receipt by the
Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of the Note and, in the case of loss, theft or
destruction, of an indemnification undertaking by the holder of the Note to the
Company in customary form and, in the case of mutilation, upon surrender and
cancellation of such Note, the Company shall execute and deliver to the holder
a new Note (in accordance with Section 5.7(c)) representing the Principal
Amount of the Note.
(c) Issuance of New Note. Whenever the Company is required
to issue a new Note pursuant to the terms of this Agreement or other
Transaction Documents, such new Note (i) shall be of like tenor with the
original Note, (ii) shall represent, as indicated on the face of such new Note,
the Principal Amount of such original Note (or in the case of a new Note being
issued pursuant to Section 5.8(a), the Principal Amount designated by the
holder of such Note which, when added to the Principal Amount of the other new
Note, does not exceed the Principal Amount of the original Note, (iii) shall
have an issuance date, as indicated on the face of such new Note which is the
same as the Issuance Date (as defined in the Note), and (iv) shall have the
same rights and conditions as the original Note.
Section 5.9 Maintenance of Property. The Company shall
maintain and preserve all its assets which are used or useful in its business
in good working order and condition, ordinary wear and tear excepted, and make
all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. The Company shall
maintain with financially sound and reputable independent insurers, insurance
with respect to its assets and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
Section 5.10 Compliance With Laws; Agreements. The Company
shall comply, in all material respects, with (i) all, laws, rules, regulations,
judgments, orders and decrees of any governmental or regulatory authority
applicable to it and its respective assets, and (ii) all of its material
agreements.
Section 5.11 Maintenance of WOFE and SAFE. So long as the
Note remains outstanding, the Company and its subsidiaries shall maintain and
remain compliant with the requirements under the Wholly Foreign Owned
Enterprise ("WFOE") or SAFE required by the Peoples Republic of China for the
Company's PRC affiliates.
Section 5.12 Filing of all Reports and Maintenance of
Publicly Traded Status. So long as the Note remains outstanding, the Company
shall timely file all reports required to be filed by the Company with the
Securities and Exchange Commission, and remain a publicly traded corporation in
the United States.
ARTICLE 6
CLOSING
Section 6.1 Conditions to the Company's Obligation to Sell;
Closing. The obligation of the Company hereunder to issue and sell the Note to
the Purchaser at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion by providing the Purchaser with prior
written notice thereof:
(a) The Purchaser shall have executed each of the
Transaction Documents to which it is a party and delivered the same to the
Company.
(b) The Purchaser shall have delivered to the
Company the US$250,000 balance of the Purchase Price for the Note being
purchased by the Purchaser at the Closing by wire transfer of immediately
available funds pursuant to the wire instructions provided by the Company.
(c) The representations and warranties of the
Purchaser shall be true and correct as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date which shall be true and correct as
of such date) and the Purchaser shall have performed, satisfied and complied in
all respects with the covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the
Purchaser at or prior to the respective Closing Date.
(d) The offer and sale of the securities purchased
hereunder shall be exempt from the registration requirements of the 1933 Act,
the qualifications requirements of the law and the registration and/or
qualification requirements of all other applicable state securities laws.
(e) All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Company and to the Company's legal counsel, and the Company shall have received
all such counterpart originals and certified or other copies of such documents
as it may reasonably request.
(f) Further Assurances. The Purchaser shall execute
and deliver such other documents as the Company or its counsel may have
reasonably requested.
Section 6.2 Conditions to the Purchaser's Obligation to
Purchase; Closing. The obligation of the Purchaser hereunder to purchase the
Note at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are
for the Purchaser's sole benefit and may be waived by the Purchaser at any time
in its sole discretion by providing the Company with prior written notice
thereof:
(i) The Company shall have executed and delivered
to the Purchaser (i) each of the Transaction Documents and (ii) the Note being
purchased by the Purchaser pursuant to Section 2.1 of this Agreement.
(ii) The Company shall have delivered to the
Purchaser a certificate evidencing the qualification and good standing of the
Company in Delaware issued by the Secretary of State of the State of Delaware.
(iii) The Company shall have delivered to the
Purchaser a certificate, executed by the Secretary of the Company dated as of
the Closing Date, as to (i) the resolutions authorizing the transactions
contemplated hereby as adopted by the Company's Board of Directors in a form
reasonably acceptable to the Purchaser, (ii) the Articles of Incorporation and
(iii) the Bylaws, each as in effect at the Closing.
(iv) The representations and warranties of the
Company shall be true and correct as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date) and the Company shall have
performed, satisfied and complied with the covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied
with by the Company at or prior to the Closing Date. Such Purchaser shall have
received a certificate, executed by the Chief Executive Officer of the Company,
dated as of the Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by such Purchaser.
ARTICLE 7
REGISTRATION RIGHTS
The rights set forth in this Article 7 shall apply to Conversion Shares
issued upon conversion of the Note (and, shares issued with respect to
Conversion Shares pursuant to re-issuances, stock splits, stock dividends and
re-classifications or otherwise) (the "Registrable Shares"). In addition to
the rights set forth in this Article 7 with respect to the registration rights
of the holders of Registrable Shares, the Company shall grant the holders of
Registrable Shares hereunder the same registration rights that may be granted
to any investor in any Private Offerings and the rights in this Article 7 shall
be deemed to include any such additional rights to register the Registrable
Shares. Hereinafter, all holders of the Registrable Shares are referred to as
"Piggy-back Holders." The Company covenants and agrees that it will not grant
any registration rights that conflict with the rights granted and obligations
undertaken pursuant to this Article 7.
Section 7.1 "Piggy-back" Registration Rights. If the Company
shall file with the SEC a registration statement under the 1933 Act with
respect to a public offering for cash of any of the Company's Common Stock by
the Company or any of its stockholders (other than (i) a registration on Form
S-4 or Form S-8 promulgated under the 1933 Act or any successor form to such
forms, (ii) a registration filed in connection with an exchange offer, or (iii)
an offering of Common Stock solely to the existing stockholders or employees of
the Company) then the Company will, at least twenty (20) days prior to filing
such registration statement, notify the Piggy-back Holders in writing of its
intention to make such a filing and of the Piggy-back Holders' right to
register their Registrable Shares. Upon the written request by a Piggy-back
Holder, stating the number of Registrable Shares desired to be registered by
such Piggy-back Holder, given within fifteen (15) days after mailing of such
notice by the Company in accordance with Section 7.4 hereof, the Company shall,
subject to the provisions of this Article 7, cause to be included in such
registration statement for registration under the 1933 Act all the Registrable
Shares that each such Piggy-back Holder has requested to be registered. The
Company shall have the right to terminate or withdraw any registration
initiated by it under this Article 7 prior to the effectiveness of such
registration without any liability to any Piggy-back Holder. Whenever required
under this Article 7 to effect the registration of any Registrable Shares, the
Company shall, as expeditiously as reasonably possible (i) prepare and file
with the SEC the registration statement with respect to such Registrable Shares
and cause such registration statement to become and remain effective; provided,
however, the Company shall in no event be obligated to cause any such
registration to remain effective for more than three hundred sixty-five (365)
days, or such shorter period as is required to dispose of all Registrable
Shares covered by such registration statement, (ii) prepare and file with the
SEC such amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Shares covered by such registration statement,
(iii) furnish to the Piggy-back Holders such numbers of copies of a prospectus
in conformity with the requirements of the 1933 Act, and such other documents
as they may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by them, and (iv) register and qualify the Registrable
Shares covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the Registrable Shares covered by the registration statement,
provided that the Company shall not be required in connection therewith or as
a condition thereto to qualify to do business or to file a general consent to
service of process in any state or jurisdiction.
Section 7.2 Documentation. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this Article 7
that the Piggy-back Holders shall (i) furnish to the Company such information
regarding them, the Registrable Shares held by them, and the intended method of
disposition of such Registrable Shares as the Company shall reasonably request
or as shall be necessary in order to take any such actions; and (ii) execute
and deliver customary underwriting agreements, powers of attorney, and other
customary agreements and similar documents necessary to effect such
registration and sale. The Company shall not be required to include any shares
of Common Stock of a Piggy-back Holder in a registration statement relating to
an underwritten offering unless such Piggy-back Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by it (or by other persons entitled to select the underwriters), and then only
in such quantity as the underwriters determine in their sole discretion will
not materially adversely affect the offering of securities by the Company,
provided that any such cut back by the underwriters in the quantity of
securities that is able to be registered in such offering shall be applied to
each holder exercising piggy-back registration rights with respect to such
offering on a pro-rata basis based on the number of Securities that each such
holder desired to have registered in such offering.
Section 7.3 Expenses of Registration. In connection with
any registration commenced in accordance with this Agreement, all registration
and qualification fees shall be borne by the Company. All underwriters'
discounts and commissions and brokerage or dealer commissions incurred in
connection with a registration pursuant to this Article 7 with respect to the
Registrable Shares owned and to be sold by the Piggy-back Holders, shall be
borne by such holder. Notwithstanding the foregoing, in the event that
Purchaser withdraws its request for Registration, Purchaser shall pay all
Registration expenses incurred by the Company up to and including the time
when Purchaser gave such notice of withdrawal to the Company.
Section 7.4 Best Efforts. Unless the registration is
abandoned, for any reason or for no reason, by the Company in its sole
discretion, the Company shall use its best efforts to have any registration
statement declared effective at the earliest possible time, and shall furnish
such number of prospectuses as shall be reasonably required.
Section 7.5 Market Standoff. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
this Article 7 that each Piggy-back Holder agrees, in connection with the
initial public offering of the Company's Common Stock pursuant to a
registration statement of the Company filed under the 1933 Act, and upon the
request of the Company or the underwriters managing such offering, not to
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any securities of the Company held by it without the prior
written consent of the Company or the underwriters for a period not to exceed
one year following the effective date of such registration statement, as the
Company or the underwriters may require or specify; provided, however the
foregoing shall have no force or effect until and unless all officers,
directors and stockholders beneficially owning in excess of 3% of the Company's
outstanding Common Stock of the Company are bound by a similar market standoff
provisions. The Company shall use all reasonable efforts to negotiate the
shortest period of time with respect to the "lock-up" described in the
preceding sentence.
Section 7.6 Indemnification of Piggy-back Holders. To the
extent permitted by law, the Company will indemnify and hold harmless each
Piggy-back Holder requesting or joining in any registration statement under
this Article 7 against any losses, claims, damages or liabilities to which they
may become subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement of a material fact made in connection with
any registration statement or prospectus or any amendment or supplement thereto
or any omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or arise out of any
violation by the Company of any rule or regulation promulgated under the 1933
Act applicable to the Company and relating to action or inaction required by
the Company in connection with any such registration.
Section 7.7 Indemnification by the Piggy-Back Holder. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to this Agreement, that the Company
shall have received an undertaking satisfactory to it from the prospective
holder of such Registrable Securities, to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 7.6) the Company,
each director of the Company, each officer of the Company and each other
Person, if any, who controls the Company within the meaning of the 1933 Act,
with respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
such holder of Registrable Securities. Any such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling person and shall survive
the transfer of such securities by such Piggy-Back Holder.
ARTICLE 8
EVENTS OF DEFAULT AND RIGHTS UPON AN EVENT OF DEFAULT
Section 8.1 An Event of Default. Each of the following
events shall constitute a "Default' or an "Event of Default":
(a) the Company's failure to pay to the Purchaser
when due any quarterly payment required pursuant to the Note or
failure to pay any portion of the Principal Amount together
with accrued and unpaid Interest on the Maturity Date of the Note;
(b) any default under any indebtedness of the
Company in an amount equal to or greater than $50,000, in the
aggregate, which is not cured within 90 calendar days of the
occurrence of such default;
(c) the Company or any of its Subsidiaries,
pursuant to or within the meaning of Title 11, U.S. Code, or
any similar Federal or state law for the relief of debtors
(collectively, "Bankruptcy Law"), (A) commences a voluntary
case, (B) consents to the entry of an order for relief against
it in an involuntary case, (C) consents to the appointment of a
receiver, trustee, assignee, liquidator or similar official (a
"Custodian"), (D) makes a general assignment for the benefit of
its creditors or (E) admits in writing that it is generally
unable to pay its debts as they become due;
(d) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that (A) is for relief
against the Company or any of its Subsidiaries in an
involuntary case, (B) appoints a Custodian of the Company or
any of its Subsidiaries or (C) orders the liquidation of the
Company or any of its Subsidiaries;
(e) a final judgment or judgments for the payment
of money aggregating in excess of $10,000 are rendered against
the Company or any of its Subsidiaries and which judgments are
not, within 120 days after the entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged
within 120 days after the expiration of such stay; or
(f) the Company breaches in any material respect
its obligations under the Note, this Agreement or any other
Transaction Document and fails to cure the same within 30 days
after the Company's receipt of written notice of the same; or
(g) if the Company or its subsidiaries fails to (1)
maintain or remain compliant with the requirements under the
Wholly Foreign Owned Enterprise ("WFOE") or SAFE required in
the Peoples Republic of China, or (2) timely file all reports
required to be filed by the Company with the Securities and
Exchange Commission, or (3) remain a publicly traded
corporation in the United States.
Section 8.2. Rights of the Purchaser upon an Event of
Default. Promptly upon the occurrence of an Event of Default, the Company
shall deliver written notice of the Default via facsimile and overnight courier
(a 'Notice of Default") to the Purchaser. Additionally, subject to the terms
of this Agreement, upon any Event of Default (in addition to any other rights
or remedies provided for under this Note), without notice by Purchaser to or
demand by Purchaser to the Company, at the option of Purchaser or any successor
to the Purchaser, all unpaid sums required to be paid under the Note, including
all Principal Amount, accrued but unpaid Interest, fees and all other amounts
due hereunder, shall become immediately due and payable. If an Event of Default
relating to certain events of bankruptcy or insolvency of the Company occurs
and is continuing, the unpaid Principal Amount and Interest due under the Note
will become and be immediately due and payable without any declaration or other
act on the part of Purchaser or any Purchaser hereof. Upon an Event of Default,
the Interest rate payable under this Note shall be increased to the rate of
twenty-five (25%) percent per annum ("Default Interest") and shall be payable
as set forth in the Note. The acceptance by Purchaser of any partial payment
made under the Note after the time any of Company's liabilities become due and
payable will not establish a custom, or waive any rights of Purchaser to
enforce prompt payment of the Note. A default under this Agreement shall, at
the option of Purchaser, also constitute a default under the Note and other
Loan Documents. In addition to, and not in limitation of, the foregoing, a
default under this Agreement and other Loan Documents shall, at the option of
Purchaser, constitute a default under the Note. Nothing contained herein shall
be construed to restrict the exercise of any other rights or remedies granted
to Purchaser hereunder or under the other Loan Documents upon the failure of
Company to perform any provision hereof or of any provision of the other Loan
Documents.
ARTICLE 9
MISCELLANEOUS
Section 9.1. Survival/Termination. In the event that the
Closing shall not have occurred on or before five Business Days from the date
hereof due to the Company's or the Purchaser's failure to satisfy the
conditions set forth in Sections 6.1 and 6.2 above (and the non-breaching
party's failure to waive such unsatisfied condition(s)), the non-breaching
party shall have the option to terminate this Agreement with respect to such
breaching party at the close of business on such date without liability of any
party to any other party. Unless this Agreement is terminated under this
Section 9.1, the representations and warranties of the Company contained in
Section 3, the agreements and covenants set forth in Sections 5, 7 and 9 shall
survive the Closing.
Section 9.2 Entire Agreement. This Agreement, together
with the other agreements, instruments and documents expressly referred to
herein, constitute the entire agreement of the parties with respect to the
transactions contemplated hereby and supersede all prior agreements and
understandings with respect thereto, whether written or oral.
Section 9.3. No Waiver; Modifications in Writing. No
failure or delay by a party in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to any party at law or in equity or otherwise. No waiver of or
consent to any departure by a party from any provision of this Agreement shall
be effective unless signed in writing by the parties entitled to the benefit
thereof. No amendment, modification or termination of any provision of this
Agreement shall be effective unless signed in writing by all parties.
Notwithstanding anything herein to the contrary, (i) all rights provided under
this Agreement to any holders of Note may be amended, modified or terminated
upon the consent of holders of a majority in interest of the aggregate
principal amount outstanding under the Note, and (ii) all rights provided
under this Agreement to any holders of Conversion Shares may be amended,
modified or terminated upon the consent of holders of a majority in interest
of the Conversion Shares. Any amendment, supplement or modification of or
to any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure from the terms of any provision of
this Agreement, shall be effective only in the specific instance and for the
specific purpose for which made or given.
Section 9.4. Notices. Any notices, consents, waivers or
other communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i)
upon receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one
business day after deposit with an overnight courier service, in each case
properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company, to:
Green Planet bioengineering Co., Ltd.
18851 NE 29th Avenue, Suite 700,
Aventura, FL 33180
Attention: Min Zhao
If to the Purchaser, to:
ONE Holdings, Corp.
18101 Collins Avenue
Suite 5207
Sunny Isles Beach, FL, 33160
Attention: Marius Silvasan
with a copy to:
Arnstein & Lehr LLP
120 S. Riverside Plaza, Suite 1200
Chicago, Illinois 60606
Fax: (312) 876-6274
Attn: Jerold N. Siegan
or to such other address as such party shall designate in writing.
Section 9.5. Execution in Counterparts. This Agreement may
be executed in counterpart, each of which counterpart, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement. Signatures
relating to this Agreement and the other Transaction Documents transmitted by
telecopy shall be deemed originals, provided, that in each such case the
manually signed copies shall be delivered to the parties hereto.
Section 9.6. Binding Effect; Assignment. The Purchaser may
assign some or all of its rights hereunder without the consent of the Company;
in which event such assignee shall be deemed to be the Purchaser hereunder with
respect to such assigned rights; provided, however, that any such assignment
shall not release such Purchaser from its obligations hereunder unless such
obligations are assumed by such assignee. Except as expressly provided in this
Agreement, this Agreement shall not be construed so as to confer any right or
benefit upon any Person other than the parties to this Agreement or any
Affiliate of any such Person (as designated in writing to the other parties
hereto) and their respective successors and permitted assigns. This Agreement
shall be binding upon and shall inure to the benefit of the Company, the
Purchaser and their respective successors and permitted assigns.
Section 9.7. Governing Law. This Agreement shall be deemed
to be a contract made under and shall be governed by and construed in
accordance with the internal laws of the State of Florida, without reference to
the principles of conflict of laws.
Section 9.8. Indemnification. In consideration of the
Purchaser's execution and delivery of the Transaction Documents and acquiring
the Note thereunder and in addition to all of the Company's other obligations
under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless the Purchaser and all of its stockholders, officers,
directors, employees and direct or indirect investors and any of the foregoing
Persons' agents or other representatives (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the "Indemnitees") from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities and
damages, and expenses in connection therewith (irrespective of whether any such
Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys' fees and disbursements (the
"Indemnified Liabilities"), incurred by any Indemnitee as a result of, or
arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Company in the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby,
(b) any breach of any covenant, agreement or obligation of the Company
contained in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby or (c) any cause of action, suit or
claim brought or made against such Indemnitee by a third party (including for
these purposes a derivative action brought on behalf of the Company) and
arising out of or resulting from (i) the execution, delivery, performance or
enforcement of the Transaction Documents or any other certificate, instrument
or document contemplated hereby or thereby, (ii) any transaction financed or to
be financed in whole or in part, directly or indirectly, with the proceeds of
the issuance of the Note, or (iii) the status of the Purchaser or holder of the
Note as an investor in the Company. To the extent that the foregoing
undertaking by the Company may be unenforceable for any reason, the Company
shall make the maximum contribution to the payment and satisfaction of each of
the Indemnified Liabilities which is permissible under applicable law.
Section 9.9. Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 9.10. Construction; Headings. This Agreement shall
be deemed to be jointly drafted by the Company and all the Purchasers and shall
not be construed against any person as the drafter thereof. The Article and
Section headings used or contained in this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement.
IN WITNESS WHEREOF, the Company and the Purchaser have each duly
executed or caused to be executed this Convertible Note Purchase Agreement, as
of the day and year first written above.
COMPANY:
GREEN PLANET BIOENGINEERING CO., LTD.
By:
Name: Min Zhao
Title: CEO
PURCHASER:
ONE HOLDINGS, CORP.
By:
Name: Marius Silvasan
Title: CEO
Exhibits
Exhibit A Form of Note