SHARE EXCHANGE AGREEMENT GREEN AGRICULTURE HOLDING CORPORATION FOR THE EXCHANGE OF CAPITAL STOCK OF DISCOVERY TECHNOLOGIES, INC. DATED DECEMBER 24, 2007
GREEN
AGRICULTURE HOLDING CORPORATION
FOR
THE EXCHANGE OF
CAPITAL
STOCK
OF
DISCOVERY
TECHNOLOGIES, INC.
DATED
DECEMBER 24, 2007
1
This
SHARE EXCHANGE AGREEMENT, dated December 24, 2007 (the “Agreement”) by and among
Green Agriculture Holding Corporation,
a
newly-formed New Jersey corporation (“Green”),
Discovery Technologies, Inc., a Nevada corporation (“Discovery”)
and
the shareholders of Green, whose names are set forth on Exhibit A attached
hereto (“Green
Shareholders”).
WHEREAS,
Green Shareholders own 100% of the issued and outstanding shares of Common
Stock
of Green (the "Green
Shares");
WHEREAS,
Green Shareholders believe it is in their best interests to exchange the Green
Shares for shares of common stock of Discovery, par value $.001 per share
(“Discovery
Shares”),
and
Discovery believes it is in its best interests to acquire the Green Shares
in
exchange for Discovery Shares, upon the terms and subject to the conditions
set
forth in this Agreement; and
WHEREAS,
it is the intention of the parties that: (i) Discovery shall acquire 100% of
the
Green Shares in exchange solely for the amount of Discovery Shares set forth
herein; (ii) said exchange of shares shall qualify as a tax-free reorganization
under Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended
(the“Code”);
and
(iii) said exchange shall qualify as a transaction in securities exempt from
registration or qualification under the Securities Act of 1933, as amended
and
in effect on the date of this Agreement (the “Securities
Act”).
NOW,
THEREFORE, in consideration of the mutual terms, conditions and other agreements
set forth herein, the parties hereto hereby agree as follows:
ARTICLE
I
EXCHANGE
OF SHARES FOR COMMON STOCK
Section
1.1 Agreement
to Exchange Green Shares for Discovery Shares.
On the
Closing Date (as hereinafter defined) and subject to the terms and conditions
set forth in this Agreement, Green Shareholders shall sell, assign, transfer,
convey and deliver the Green Shares (representing 100% of the issued and
outstanding Green Shares), to Discovery, and Discovery shall accept the Green
Shares from the Green Shareholders in exchange for the issuance to the Green
Shareholders of the number of Discovery Shares set forth opposite the names
of
the Green Shareholders on Exhibit A hereto.
Section
1.2 Capitalization.
On the
Closing Date, immediately before the transactions to be consummated pursuant
to
this Agreement, Discovery shall have authorized (a) 115,197,165 shares of Common
Stock, par value $.001 per share, of which 251,386 shares shall be issued and
outstanding, all of which are duly authorized, validly issued and fully paid;
and (b) 20,000,000 shares of Preferred Stock, $.001 par value, of which no
shares are issued or outstanding and the detailed shareholdings of which are
more particularly set out in Exhibit B hereto.
2
Section
1.3 Closing.
The
closing of the exchange to be made pursuant to this Agreement (the "Closing")
shall take place at 10:00 a.m. E.S.T. on the day when the conditions to closing
set forth in Articles V and VI have been satisfied or waived, or at such other
time and date as the parties hereto shall agree in writing but no later than
January 15, 2008 (the "Closing Date"), at the offices of Guzov Ofsink, LLC,
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. At the Closing, Green Shareholders shall (i) deliver
to Discovery the stock certificates representing 100% of the Green Shares,
duly
endorsed in blank for transfer or accompanied by appropriate stock powers duly
executed in blank. In full consideration and exchange for the Green Shares
and
payment, Discovery shall issue and exchange with Green Shareholders 10,770,668
Discovery Shares.
1.4
Tax
Treatment.
The
exchange described herein is intended to comply with Section 368(a)(1)(B) of
the
Code, and all applicable regulations thereunder. In order to ensure compliance
with said provisions, the parties agree to take whatever steps may be necessary,
including, but not limited to, the amendment of this Agreement.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF DISCOVERY
Discovery
hereby, jointly and severally, represents, warrants and agrees as
follows:
Section
2.1 Corporate
Organization
a. Discovery
is a corporation duly organized, validly existing and in good standing under
the
laws of Nevada, and has all requisite corporate power and authority to own
its
properties and assets and to conduct its business and is duly qualified to
do
business in good standing in each jurisdiction in which the nature of the
business conducted by Discovery or the ownership or leasing of its properties
makes such qualification and being in good standing necessary, except where
the
failure to be so qualified and in good standing will not have a material adverse
effect on the business, operations, properties, assets, condition or results
of
operation of Discovery (a "Discovery
Material Adverse Effect");
b. Copies
of
the Articles of Incorporation and By-laws of Discovery, with all amendments
thereto to the date hereof, have been furnished to Green and the Green
Shareholders, and such copies are accurate and complete as of the date hereof.
The minute books of Discovery are current as required by law, contain the
minutes of all meetings of the Board of Directors and shareholders of Discovery
from its date of incorporation to the date of this Agreement, and adequately
reflect all material actions taken by the Board of Directors and shareholders
of
Discovery.
Section
2.2 Capitalization
of Discovery.
The authorized capital stock of Discovery consists of (a) 115,197,165 shares
of
Common Stock, par value $.001 per share, of which 251,386 shares are issued
and
outstanding, all of which are duly authorized, validly issued and fully paid
and
the detailed shareholdings of which are more particularly set out in Exhibit
B
hereto; and (b) 20,000,000 shares of blank check Preferred Stock, $.001 par
value, of which no shares are issued or outstanding. The parties agree that
they
have been informed of the issuances of these Discovery Shares, and that all
such
issuances of Discovery Shares pursuant to this Agreement will be in accordance
with the provisions of this Agreement. All of the Discovery Shares to be issued
pursuant to this Agreement have been duly authorized and will be validly issued,
fully paid and non-assessable and no personal liability will attach to the
ownership thereof and in each instance, have been issued in accordance with
the
registration requirements of applicable securities laws or an exemption
therefrom. As of the date of this Agreement there are no outstanding options,
warrants, agreements, commitments, conversion rights, preemptive rights or
other
rights to subscribe for, purchase or otherwise acquire any shares of capital
stock or any un-issued or treasury shares of capital stock of Discovery.
3
Section
2.3 Subsidiaries
and Equity Investments.
Discovery has no subsidiaries or equity interest in any corporation, partnership
or joint venture.
Section
2.4 Authorization
and Validity of Agreements.
Discovery has all corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby and upon the execution and delivery by Green
and the Green Shareholders and the performance of their obligations herein,
will
constitute, a legal, valid and binding obligation of Discovery. The execution
and delivery of this Agreement by Discovery and the consummation by Discovery
of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action of Discovery, and no other corporate proceedings on the part
of
Discovery are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby.
Section 2.5 No
Conflict or Violation.
The
execution, delivery and performance of this Agreement by Discovery do not and
will not violate or conflict with any provision of its Articles of Incorporation
or By-laws, and does not and will not violate any provision of law, or any
order, judgment or decree of any court or other governmental or regulatory
authority, nor violate or result in a breach of or constitute (with due notice
or lapse of time or both) a default under, or give to any other entity any
right
of termination, amendment, acceleration or cancellation of, any contract, lease,
loan agreement, mortgage, security agreement, trust indenture or other agreement
or instrument to which Discovery is a party or by which it is bound or to which
any of their respective properties or assets is subject, nor will it result
in
the creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of Discovery, nor will it result
in the cancellation, modification, revocation or suspension of any of the
licenses, franchises, permits to which Discovery is bound.
Section
2.6 Consents
and Approvals.
No
consent, waiver, authorization or approval of any governmental or regulatory
authority, domestic or foreign, or of any other person, firm or corporation,
is
required in connection with the execution and delivery of this Agreement by
Discovery or the performance by Discovery of its obligations
hereunder.
4
Section
2.7 Absence
of Certain Changes or Events.
Since
its inception:
a.
As of
the date of this Agreement, Discovery does not know or have reason to know
of
any event, condition, circumstance or prospective development which threatens
or
may threaten to have a material adverse effect on the assets, properties,
operations, prospects, net income or financial condition of
Discovery;
b. there
has
not been any declaration, setting aside or payment of dividends or distributions
with respect to shares of capital stock of Discovery; and
c. there
has
not been an increase in the compensation payable or to become payable to any
director or officer of Discovery.
Section
2.8 Disclosure.
This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereby by or on behalf of Discovery in connection with the
transactions contemplated by this Agreement, when taken together, do not contain
any untrue statement of a material fact or omit any material fact necessary
in
order to make the statements contained herein and/or therein not misleading.
Section
2.9 Litigation.
There
is no action, suit, proceeding or investigation pending or threatened against
the Company or any subsidiary that may affect the validity of this Agreement
or
the right of Discovery to enter into this Agreement or to consummate the
transactions contemplated hereby.
Section
2.10 Securities
Laws.
Discovery has complied in all material respects with applicable federal and
state securities laws, rules and regulations, including the Sarbanes Oxley
Act
of 2002, as such laws, rules and regulations apply to Discovery and its
securities; and (b) all shares of capital stock of the Company have been issued
in accordance with applicable federal and state securities laws, rules and
regulations. There are no stop orders in effect with respect to any of the
Company’s securities.
Section
2.11 Tax.
Discovery has paid all taxes due to date, if any.
Section
2.12 ’34
Act Reports.
None of
Discovery’s filings with the SEC, contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements therein
not misleading, in light of the circumstances in which they were
made.
Section
2.13 Market
Makers.
Discovery has at least two (2) market makers in its Common Stock.
Section
2.14 Survival.
Each of
the representations and warranties set forth in this Article II shall be deemed
represented and made by Discovery at the Closing as if made at such time and
shall survive the Closing for a period terminating on the second anniversary
of
the date of this Agreement.
5
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF GREEN AND GREEN SHAREHOLDERS
Green
and
each of Green Shareholders, severally, represent, warrant and agree as
follows:
Section
3.1 Corporate
Organization.
▇. ▇▇▇▇▇
is
a newly-formed corporation with no prior business activities. It is duly
organized, validly existing and in good standing under the laws of the state
of
New Jersey and has all requisite corporate power and authority to own its
properties and assets and to conduct its business as now conducted and is duly
qualified to do business, is in good standing in each jurisdiction wherein
the
nature of the business conducted by Green or the ownership or leasing of its
properties makes such qualification and being in good standing necessary, except
where the failure to be so qualified and in good standing will not have a
material adverse effect on the business, operations, properties, assets,
condition or results of operation of Green (a “Green
Material Adverse Effect”).
As of
the date of this Agreement, Green owns all of the issued and outstanding equity
or voting interests in Shaanxi TechTeam Jinong Humic Acid Product Co., Ltd.
(“Techteam”). Techteam is duly organized, validly existing and in good standing
under the laws of the Peoples’ Republic of China (“PRC”) and has all requisite
corporate power and authority to own its properties and assets and to conduct
its business as now conducted and is duly qualified to do business, is in good
standing in each jurisdiction wherein the nature of the business conducted
by
Techteam or the ownership or leasing of its properties makes such qualification
and being in good standing necessary, except where the failure to be so
qualified and in good standing will not have a material adverse effect on the
business, operations, properties, assets, condition or results of operation
of
Techteam (a "Techteam
Material Adverse Effect")
b. Copies
of
the Certificate of Incorporation and By-laws of Green and Techteam, with all
amendments thereto to the date hereof, have been furnished to Discovery, and
such copies are accurate and complete as of the date hereof. The minute books
of
Green are current as required by law, contain the minutes of all meetings of
the
Board of Directors and shareholders of Green, and adequately reflect all
material actions taken by the Board of Directors, shareholders of
Green.
Section
3.2 Capitalization
of Green; Title to the Green Shares.
On the
Closing Date, immediately before the transactions to be consummated pursuant
to
this Agreement, Green shall have authorized One Hundred Thousand (100,000)
Green
Shares, of which 100 Green Shares will be issued and outstanding. The Green
Shares are the sole outstanding shares of capital stock of Green, and there
are
no outstanding options, warrants, agreements, commitments, conversion rights,
preemptive rights or other rights to subscribe for, purchase or otherwise
acquire any shares of capital stock or other equity or voting interest or any
unissued or treasury shares of capital stock of Green. As of the date hereof
and
on the Closing Date, each Green Shareholder owns and will own the Green Shares
free and clear of any liens, claims or encumbrances and has and will have the
right to transfer the Green Shares without consent of any other person or
entity.
6
Section
3.3 Subsidiaries
and Equity Investments; Assets.
As of
the date hereof and on the Closing Date, Green owns all of the equity or voting
interests in Techteam. Green does not and will not directly or indirectly,
own
any other shares of capital stock or any other equity interest in any entity
or
any right to acquire any shares or other equity interest in any entity and
Green
does not and will not have any assets or liabilities. As of the date hereof
and
on Closing Date, Techteam does not and will not directly or indirectly, own
any
shares of capital stock or any other equity interest in any entity or any right
to acquire any shares or other equity interest in any entity, except as set
forth on Schedule 3.3. As of the date hereof and on the Closing Date, there
are
and will be no outstanding options, warrants, agreements, commitments,
conversion rights, preemptive rights or other rights to subscribe for, purchase
or otherwise acquire any shares of capital stock or other equity or voting
interest in Techteam.
Section
3.4 Authorization
and Validity of Agreements.
Green
has all corporate power and authority to execute and deliver this Agreement,
to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Green
and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and no other corporate proceedings
on the part of Green are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. The Green Shareholders have approved
this
Agreement on behalf of Green and no other stockholder approvals are required
to
consummate the transactions contemplated hereby. Each Green Shareholder is
competent to execute this Agreement, and has the power to execute and perform
this Agreement. No other proceedings on the part of Green or any Green
Shareholder are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby.
Section
3.5 No
Conflict or Violation.
The
execution, delivery and performance of this Agreement by Green or any Green
Shareholder does not and will not violate or conflict with any provision of
the
constituent documents of Green, and does not and will not violate any provision
of law, or any order, judgment or decree of any court or other governmental
or
regulatory authority, nor violate, result in a breach of or constitute (with
due
notice or lapse of time or both) a default under or give to any other entity
any
right of termination, amendment, acceleration or cancellation of any contract,
lease, loan agreement, mortgage, security agreement, trust indenture or other
agreement or instrument to which Green or any Green Shareholder is a party
or by
which it is bound or to which any of its respective properties or assets is
subject, nor result in the creation or imposition of any lien, charge or
encumbrance of any kind whatsoever upon any of the properties or assets of
Green
or any Green Shareholder, nor result in the cancellation, modification,
revocation or suspension of any of the licenses, franchises, permits to which
Green or any Green Shareholder is bound.
7
Section
3.6 Investment
Representations.
(a) The
Discovery Shares will be acquired hereunder solely for the account of the Green
Shareholders, for investment, and not with a view to the resale or distribution
thereof. Each Green Shareholder understands and is able to bear any economic
risks associated with such investment in the Discovery Shares. Each Green
Shareholder has had full access to all the information such shareholder
considers necessary or appropriate to make an informed investment decision
with
respect to the Discovery Shares to be acquired under this Agreement. Each Green
Shareholder further has had an opportunity to ask questions and receive answers
from Discovery’s directors regarding Discovery and to obtain additional
information (to the extent Discovery’s directors possessed such information or
could acquire it without unreasonable effort or expense) necessary to verify
any
information furnished to such shareholder or to which such shareholder had
access. Each Green Shareholder is at the time of the offer and execution of
this
Agreement, either domiciled and resident outside the United States (a
“Non-U.S.
Shareholder”)
and or
is an “accredited investor” (as such term is defined in Rule 501(a) of
Regulation D promulgated by the Securities and Exchange Commission under the
Securities Act).
(b)
No
Non-U.S. Shareholder, nor any affiliate of any Non-U.S. Shareholder, nor any
person acting on behalf of any Non-U.S. Shareholder or any behalf of any such
affiliate, has engaged or will engage in any activity undertaken for the purpose
of, or that reasonably could be expected to have the effect of, conditioning
the
markets in the United States for the Discovery Shares, including, but not
limited to, effecting any sale or short sale of securities through any Non-U.S.
Shareholder or any of affiliate of any Non-U.S. Shareholder prior to the
expiration of any restricted period contained in Regulation S promulgated under
the Securities Act (any such activity being defined herein as a “Directed
Selling Effort”). To the best knowledge of the Non-U.S. Shareholders, this
Agreement and the transactions contemplated herein are not part of a plan or
scheme to evade the registration provisions of the Securities Act, and the
Discovery Shares are being acquired for investment purposes by the Non-U.S.
Shareholders. The Non-U.S. Shareholder agrees that all offers and sales of
Discovery Shares from the date hereof and through the expiration of the any
restricted period set forth in Rule 903 of Regulation S (as the same may be
amended from time to time hereafter) shall not be made to U.S. Persons or for
the account or benefit of U.S. Persons and shall otherwise be made in compliance
with the provisions of Regulation S and any other applicable provisions of
the
Securities Act. Neither any Non-U.S. Shareholder nor the representatives of
any
Non-U.S. Shareholder have conducted any Directed Selling Effort as that term
is
used and defined in Rule 902 of Regulation S and no Non-U.S. Shareholder nor
any
representative of any Non-U.S. Shareholder will engage in any such Directed
Selling Effort within the United States through the expiration of any restricted
period set forth in Rule 903 of Regulation S.
Section
3.7 Brokers’
Fees. No
Green
Shareholder has any liability to pay any fees or commissions or other
consideration to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
Section
3.8 Disclosure.
This
Agreement, the schedules hereto and any certificate attached hereto or delivered
in accordance with the terms hereby by or on behalf of Green or the Green
Shareholders in connection with the transactions contemplated by this Agreement,
when taken together, do not contain any untrue statement of a material fact
or
omit any material fact necessary in order to make the statements contained
herein and/or therein not misleading.
8
Section
3.9 Survival.
Each of
the representations and warranties set forth in this Article III shall be deemed
represented and made by Green and the Green Shareholders at the Closing as
if
made at such time and shall survive the Closing for a period terminating on
the
second anniversary of the date of this Agreement.
ARTICLE
IV
COVENANTS
Section
4.1 Certain
Changes and Conduct of Business.
a. From
and
after the date of this Agreement and until the Closing Date, Discovery shall
conduct its business solely in the ordinary course consistent with past
practices and, in a manner consistent with all representations, warranties
or
covenants of Discovery, and without the prior written consent of Green will
not,
except as required or permitted pursuant to the terms hereof:
| i. |
make
any material change in the conduct of its businesses and/or operations
or
enter into any transaction other than in the ordinary course of business
consistent with past practices;
|
| ii. |
make
any change in its Articles of Incorporation or By-laws; issue any
additional shares of capital stock or equity securities or grant
any
option, warrant or right to acquire any capital stock or equity securities
or issue any security convertible into or exchangeable for its capital
stock or alter in any material term of any of its outstanding securities
or make any change in its outstanding shares of capital stock or
its
capitalization, whether by reason of a reclassification, recapitalization,
stock split or combination, exchange or readjustment of shares, stock
dividend or otherwise;
|
| iii. |
A.
incur,
assume or guarantee any indebtedness for borrowed money, issue
any notes,
bonds, debentures or other corporate securities or grant any
option,
warrant or right to purchase any thereof, except pursuant to
transactions
in the ordinary course of business consistent with past practices;
or
|
|
B.
|
issue
any securities convertible or exchangeable for debt or equity securities
of Discovery;
|
| iv. |
make
any sale, assignment, transfer, abandonment or other conveyance of
any of
its assets or any part thereof, except pursuant to transactions in
the
ordinary course of business consistent with past
practice;
|
9
| v. |
subject
any of its assets, or any part thereof, to any lien or suffer such
to be
imposed other than such liens as may arise in the ordinary course
of
business consistent with past practices by operation of law which
will not
have a Discovery Material Adverse
Effect;
|
| vi. |
acquire
any assets, raw materials or properties, or enter into any other
transaction, other than in the ordinary course of business consistent
with
past practices;
|
| vii. |
enter
into any new (or amend any existing) employee benefit plan, program
or
arrangement or any new (or amend any existing) employment, severance
or
consulting agreement, grant any general increase in the compensation
of
officers or employees (including any such increase pursuant to any
bonus,
pension, profit-sharing or other plan or commitment) or grant any
increase
in the compensation payable or to become payable to any employee,
except
in accordance with pre-existing contractual provisions or consistent
with
past practices;
|
| viii. |
make
or commit to make any material capital
expenditures;
|
| ix. |
pay,
loan or advance any amount to, or sell, transfer or lease any properties
or assets to, or enter into any agreement or arrangement with, any
of its
affiliates;
|
| x. |
guarantee
any indebtedness for borrowed money or any other obligation of any
other
person;
|
| xi. |
fail
to keep in full force and effect insurance comparable in amount and
scope
to coverage maintained by it (or on behalf of it) on the date
hereof;
|
| xii. |
take
any other action that would cause any of the representations and
warranties made by it in this Agreement not to remain true and correct
in
all material aspect;
|
| xiii. |
make
any material loan, advance or capital contribution to or investment
in any
person;
|
| xiv. |
make
any material change in any method of accounting or accounting principle,
method, estimate or practice;
|
10
| xv. |
settle,
release or forgive any claim or litigation or waive any
right;
|
| xvi. |
commit
itself to do any of the foregoing.
|
b. From
and
after the date of this Agreement, Green will and Green will cause Techteam
to:
| 1. |
continue
to maintain, in all material respects, its properties in accordance
with
present practices in a condition suitable for its current
use;
|
| 2. |
file,
when due or required, federal, state, foreign and other tax returns
and
other reports required to be filed and pay when due all taxes,
assessments, fees and other charges lawfully levied or assessed against
it, unless the validity thereof is contested in good faith and by
appropriate proceedings diligently
conducted;
|
| 3. |
continue
to conduct its business in the ordinary course consistent with past
practices;
|
| 4. |
keep
its books of account, records and files in the ordinary course and
in
accordance with existing practices;
and
|
| 5. |
continue
to maintain existing business relationships with suppliers.
|
c. From
and
after the date of this Agreement, Green will not and will ensure that Techteam
does not:
| xvii. |
make
any material change in the conduct of its businesses and/or operations
or
enter into any transaction other than in the ordinary course of business
consistent with past practices;
|
| xviii. |
make
any change in its Business License, Bylaws or other governing documents;
issue any additional shares of capital stock or equity securities
or grant
any option, warrant or right to acquire any capital stock or equity
securities or issue any security convertible into or exchangeable
for its
capital stock or alter in any material term of any of its outstanding
securities or make any change in its outstanding shares of capital
stock
or its capitalization, whether by reason of a reclassification,
recapitalization, stock split or combination, exchange or readjustment
of
shares, stock dividend or
otherwise;
|
| xix. |
A.
incur,
assume or guarantee any indebtedness for borrowed money, issue any
notes,
bonds, debentures or other corporate securities or grant any option,
warrant or right to purchase any thereof, except pursuant to transactions
in the ordinary course of business consistent with past practices;
or
|
11
|
B.
|
issue
any securities convertible or exchangeable for debt or equity securities
of Green or Techteam;
|
| xx. |
make
any sale, assignment, transfer, abandonment or other conveyance of
any of
its assets or any part thereof, except pursuant to transactions in
the
ordinary course of business consistent with past
practice;
|
| xxi. |
subject
any of its assets, or any part thereof, to any lien or suffer such
to be
imposed other than such liens as may arise in the ordinary course
of
business consistent with past practices by operation of law which
will not
have a Green Material Adverse
Effect;
|
| xxii. |
acquire
any assets, raw materials or properties, or enter into any other
transaction, other than in the ordinary course of business consistent
with
past practices;
|
| xxiii. |
enter
into any new (or amend any existing) employee benefit plan, program
or
arrangement or any new (or amend any existing) employment, severance
or
consulting agreement, grant any general increase in the compensation
of
officers or employees (including any such increase pursuant to any
bonus,
pension, profit-sharing or other plan or commitment) or grant any
increase
in the compensation payable or to become payable to any employee,
except
in accordance with pre-existing contractual provisions or consistent
with
past practices;
|
| xxiv. |
make
or commit to make any material capital
expenditures;
|
| xxv. |
pay,
loan or advance any amount to, or sell, transfer or lease any properties
or assets to, or enter into any agreement or arrangement with, any
of its
affiliates;
|
| xxvi. |
guarantee
any indebtedness for borrowed money or any other obligation of any
other
person;
|
| xxvii. |
fail
to keep in full force and effect insurance comparable in amount and
scope
to coverage maintained by it (or on behalf of it) on the date
hereof;
|
| xxviii. |
take
any other action that would cause any of the representations and
warranties made by it in this Agreement not to remain true and correct
in
all material aspect;
|
12
| xxix. |
make
any material loan, advance or capital contribution to or investment
in any
person;
|
| xxx. |
make
any material change in any method of accounting or accounting principle,
method, estimate or practice;
|
| xxxi. |
settle,
release or forgive any claim or litigation or waive any
right;
|
| xxxii. |
commit
itself to do any of the foregoing.
|
Section
4.2 Access
to Properties and Records.
Green
shall afford Discovery’s accountants, counsel and authorized representatives,
and Discovery shall afford to Green's accountants, counsel and authorized
representatives full access during normal business hours throughout the period
prior to the Closing Date (or the earlier termination of this Agreement) to
all
of such parties’ properties, books, contracts, commitments and records and,
during such period, shall furnish promptly to the requesting party all other
information concerning the other party's business, properties and personnel
as
the requesting party may reasonably request, provided that no investigation
or
receipt of information pursuant to this Section 4.2 shall affect any
representation or warranty of or the conditions to the obligations of any party.
Section
4.3 Negotiations.
From
and after the date hereof until the earlier of the Closing or the termination
of
this Agreement, no party to this Agreement nor its officers or directors
(subject to such director's fiduciary duties) nor anyone acting on behalf of
any
party or other persons shall, directly or indirectly, encourage, solicit, engage
in discussions or negotiations with, or provide any information to, any person,
firm, or other entity or group concerning any merger, sale of substantial
assets, purchase or sale of shares of capital stock or similar transaction
involving any party. A party shall promptly communicate to any other party
any
inquiries or communications concerning any such transaction which they may
receive or of which they may become aware of.
Section
4.4 Consents
and Approvals.
The
parties shall:
| i. |
use
their reasonable commercial efforts to obtain all necessary consents,
waivers, authorizations and approvals of all governmental and regulatory
authorities, domestic and foreign, and of all other persons, firms
or
corporations required in connection with the execution, delivery
and
performance by them of this Agreement; and
|
13
| ii. |
diligently
assist and cooperate with each party in preparing and filing all
documents
required to be submitted by a party to any governmental or regulatory
authority, domestic or foreign, in connection with such transactions
and
in obtaining any governmental consents, waivers, authorizations or
approvals which may be required to be obtained connection in with
such
transactions.
|
Section
4.5 Public
Announcement.
Unless
otherwise required by applicable law, the parties hereto shall consult with
each
other before issuing any press release or otherwise making any public statements
with respect to this Agreement and shall not issue any such press release or
make any such public statement prior to such consultation.
Section
4.6 Stock
Issuance.
From
and after the date of this Agreement until the Closing Date, none of Discovery,
Green nor Techteam shall issue any additional shares of its capital stock.
Section
4.7 Notwithstanding
anything to the contrary contained herein, it is herewith understood and agreed
that both Green and Discovery may enter into and conclude agreements and/or
financing transactions as same relate to and/or are contemplated by any separate
written agreements either: (a) annexed hereto as exhibits; or (b) entered into
by Discovery with Green executed by both parties subsequent to the date hereof.
These Agreements shall become, immediately upon execution, part of this
Agreement and subject to all warranties, representations and conditions
contained herein.
ARTICLE
V
CONDITIONS
TO OBLIGATIONS OF GREEN AND GREEN SHAREHOLDERS
The
obligations of Green and the Green Shareholders to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, at or before
the
Closing Date, of the following conditions, any one or more of which may be
waived by both Green and the Green Shareholders in their sole
discretion:
Section
5.1 Representations
and Warranties of Discovery.
All
representations and warranties made by Discovery in this Agreement shall be
true
and correct on and as of the Closing Date as if again made by Discovery as
of
such date.
Section
5.2 Agreements
and Covenants.
Discovery shall have performed and complied in all material respects to all
agreements and covenants required by this Agreement to be performed or complied
with by it on or prior to the Closing Date.
Section
5.3 Consents
and Approvals.
Consents, waivers, authorizations and approvals of any governmental or
regulatory authority, domestic or foreign, and of any other person, firm or
corporation, required in connection with the execution, delivery and performance
of this Agreement shall be in full force and effect on the Closing
Date.
14
Section
5.4 No
Violation of Orders.
No
preliminary or permanent injunction or other order issued by any court or
governmental or regulatory authority, domestic or foreign, nor any statute,
rule, regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects
the
assets, properties, operations, prospects, net income or financial condition
of
Discovery shall be in effect; and no action or proceeding before any court
or
governmental or regulatory authority, domestic or foreign, shall have been
instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks
to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
Section
5.5 Other
Closing Documents.
Green
shall have received such other certificates, instruments and documents in
confirmation of the representations and warranties of Discovery or in
furtherance of the transactions contemplated by this Agreement as Green or
its
counsel may reasonably request.
Section
5.6 Additional
Funding.
Green
shall have obtained written commitments to invest a minimum of $26,000,000
in
the aggregate from third party investor(s) to further the business objectives
of
Techteam, which commitment may close either before or after Closing Date.
ARTICLE
VI
CONDITIONS
TO OBLIGATIONS OF DISCOVERY
The
obligations of Discovery to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or before the Closing Date, of
the
following conditions, any one or more of which may be waived by Discovery in
its
sole discretion:
Section
6.1 Representations
and Warranties of Green and Green Shareholders.
All
representations and warranties made by Green and Green Shareholders in this
Agreement shall be true and correct on and as of the Closing Date as if again
made by them on and as of such date.
Section
6.2 Agreements
and Covenants.
Green
and Green Shareholders shall have performed and complied in all material
respects to all agreements and covenants required by this Agreement to be
performed or complied with by it on or prior to the Closing Date.
Section
6.3 Consents
and Approvals.
All
consents, waivers, authorizations and approvals of any governmental or
regulatory authority, domestic or foreign, and of any other person, firm or
corporation, required in connection with the execution, delivery and performance
of this Agreement, shall have been duly obtained and shall be in full force
and
effect on the Closing Date.
15
Section
6.4 No
Violation of Orders.
No
preliminary or permanent injunction or other order issued by any court or other
governmental or regulatory authority, domestic or foreign, nor any statute,
rule, regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, domestic or foreign, that
declares this Agreement invalid or unenforceable in any respect or which
prevents the consummation of the transactions contemplated hereby, or which
materially and adversely affects the assets, properties, operations, prospects,
net income or financial condition of Green or Techteam, taken as a whole, shall
be in effect; and no action or proceeding before any court or government or
regulatory authority, domestic or foreign, shall have been instituted or
threatened by any government or governmental or regulatory authority, domestic
or foreign, or by any other person, or entity which seeks to prevent or delay
the consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement.
Section
6.5. Other
Closing Documents.
Discovery shall have received such other certificates, instruments and documents
in confirmation of the representations and warranties of Green or in furtherance
of the transactions contemplated by this Agreement as Discovery or its counsel
may reasonably request.
ARTICLE
VII
TERMINATION
AND ABANDONMENT
SECTION
7.1 Methods
of Termination.
This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time before the Closing:
a. By
the
mutual written consent of Green, Green Shareholders, and Discovery;
b. By
Discovery, upon a material breach of any representation, warranty, covenant
or
agreement on the part of Green or Green Shareholders set forth in this
Agreement, or if any representation or warranty of Green or the Green
Shareholders shall become untrue, in either case such that any of the conditions
set forth in Article VI hereof would not be satisfied (a "Green
Breach"),
and
such breach shall, if capable of cure, has not been cured within ten (10) days
after receipt by the party in breach of a notice from the non-breaching party
setting forth in detail the nature of such breach;
c. By
Green,
upon a material breach of any representation, warranty, covenant or agreement
on
the part of Discovery set forth in this Agreement, or, if any representation
or
warranty of Discovery shall become untrue, in either case such that any of
the
conditions set forth in Article V hereof would not be satisfied (a "Discovery
Breach"),
and
such breach shall, if capable of cure, not have been cured within ten (10)
days
after receipt by the party in breach of a written notice from the non-breaching
party setting forth in detail the nature of such breach.;
16
d. By
either
Discovery or Green, if the Closing shall not have consummated before ninety
(90)
days after the date hereof; provided, however, that this Agreement may be
extended by written notice of either Green or Discovery, if the Closing shall
not have been consummated as a result of Discovery or Green having failed to
receive all required regulatory approvals or consents with respect to this
transaction or as the result of the entering of an order as described in this
Agreement; and further provided, however, that the right to terminate this
Agreement under this Section 7.1(d) shall not be available to any party whose
failure to fulfill any obligations under this Agreement has been the cause
of,
or resulted in, the failure of the Closing to occur on or before this
date.
e. By
either
Green or Discovery if a court of competent jurisdiction or governmental,
regulatory or administrative agency or commission shall have issued an order,
decree or ruling or taken any other action (which order, decree or ruling the
parties hereto shall use its best efforts to lift), which permanently restrains,
enjoins or otherwise prohibits the transactions contemplated by this
Agreement.
Section
7.2 Procedure
Upon Termination.
In the
event of termination and abandonment of this Agreement by Green or Discovery
pursuant to Section 7.1, written notice thereof shall forthwith be given to
the
other parties and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned, without further action. If this
Agreement is terminated as provided herein, no party to this Agreement shall
have any liability or further obligation to any other party to this Agreement;
provided, however, that no termination of this Agreement pursuant to this
Article VII shall relieve any party of liability for a breach of any provision
of this Agreement occurring before such termination.
ARTICLE
VIII
POST-CLOSING
AGREEMENTS
Section
8.1 Consistency
in Reporting.
Each
party hereto agrees that if the characterization of any transaction contemplated
in this agreement or any ancillary or collateral transaction is challenged,
each
party hereto will testify, affirm and ratify that the characterization
contemplated in such agreement was the characterization intended by the party;
provided, however, that nothing herein shall be construed as giving rise to
any
obligation if the reporting position is determined to be incorrect by final
decision of a court of competent jurisdiction.
17
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
9.1 Survival
of Provisions.
The
respective representations, warranties, covenants and agreements of each of
the
parties to this Agreement (except covenants and agreements which are expressly
required to be performed and are performed in full on or before the Closing
Date) shall survive the Closing Date and the consummation of the transactions
contemplated by this Agreement, subject to Sections 2.14, 3.9 and 9.1. In the
event of a breach of any of such representations, warranties or covenants,
the
party to whom such representations, warranties or covenants have been made
shall
have all rights and remedies for such breach available to it under the
provisions of this Agreement or otherwise, whether at law or in equity,
regardless of any disclosure to, or investigation made by or on behalf of such
party on or before the Closing Date.
Section
9.2 Publicity.
No
party shall cause the publication of any press release or other announcement
with respect to this Agreement or the transactions contemplated hereby without
the consent of the other parties, unless a press release or announcement is
required by law. If any such announcement or other disclosure is required by
law, the disclosing party agrees to give the non-disclosing parties prior notice
and an opportunity to comment on the proposed disclosure.
Section
9.3 Successors
and Assigns.
This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors and assigns; provided, however, that no party
shall assign or delegate any of the obligations created under this Agreement
without the prior written consent of the other parties.
Section
9.4 Fees
and Expenses.
Except
as otherwise expressly provided in this Agreement, all legal and other fees,
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
fees,
costs or expenses.
Section
9.5 Notices.
All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been given or made if in writing and
delivered personally or sent by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses:
If
to
Green or the Green Shareholders, to:
Green
Agriculture Holding Corporation.
▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇,
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Mr.
Yinshing ▇▇▇▇▇ To
18
with
a
copy to:
Guzov
Ofsink, LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax:
▇▇▇-▇▇▇-▇▇▇▇
If
to
Discovery, to:
▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇,
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Mr.
Yinshing ▇▇▇▇▇ To
or
to
such other persons or at such other addresses as shall be furnished by any
party
by like notice to the others, and such notice or communication shall be deemed
to have been given or made as of the date so delivered or mailed. No change
in
any of such addresses shall be effective insofar as notices under this Section
9.5 are concerned unless such changed address is located in the United States
of
America and notice of such change shall have been given to such other party
hereto as provided in this Section 9.5
Section
9.6 Entire
Agreement.
This
Agreement, together with the exhibits hereto, represents the entire agreement
and understanding of the parties with reference to the transactions set forth
herein and no representations or warranties have been made in connection with
this Agreement other than those expressly set forth herein or in the exhibits,
certificates and other documents delivered in accordance herewith. This
Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating
to
the subject matter of this Agreement and all prior drafts of this Agreement,
all
of which are merged into this Agreement. No prior drafts of this Agreement
and
no words or phrases from any such prior drafts shall be admissible into evidence
in any action or suit involving this Agreement.
Section
9.7 Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible so as to
be
valid and enforceable.
Section
9.8 Titles
and Headings.
The
Article and Section headings contained in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation
of
this Agreement or of any term or provision hereof.
19
Section
9.9 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall be considered one and the
same agreement.
Section
9.10 Convenience
of Forum; Consent to Jurisdiction.
The
parties to this Agreement, acting for themselves and for their respective
successors and assigns, without regard to domicile, citizenship or residence,
hereby expressly and irrevocably elect as the sole judicial forum for the
adjudication of any matters arising under or in connection with this Agreement,
and consent and subject themselves to the jurisdiction of, the courts of the
State of New York located in County of New York, and/or the United States
District Court for the Southern District of New York, in respect of any matter
arising under this Agreement. Service of process, notices and demands of such
courts may be made upon any party to this Agreement by personal service at
any
place where it may be found or giving notice to such party as provided in
Section 9.5.
Section
9.11 Enforcement
of the Agreement.
The
parties hereto agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches
of
this Agreement and to enforce specifically the terms and provisions hereto,
this
being in addition to any other remedy to which they are entitled at law or
in
equity.
Section
9.12 Governing
Law.
This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the State of New York without giving effect to the choice of law
provisions thereof.
Section
9.13 Amendments
and Waivers.
No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the parties hereto. No waiver by any
party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
20
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
Green
Agriculture Holding Corporation
By:
/s/
Yinshing ▇▇▇▇▇ To
Yinshing
▇▇▇▇▇ To
Title:
Director
Discovery
Technologies, Inc.
By: /s/ ▇▇▇
▇▇
▇▇▇ ▇▇
Title: Chairman,
Chief
Executive Officer
and
President
GREEN
SHAREHOLDERS:
/s/ Yinshing
▇▇▇▇▇ To
Yinshing ▇▇▇▇▇ To
/s/
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
/s/
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
21
EXHIBIT
A
|
Name
of Green Shareholders
|
Number
of Green Shares
Being
Exchanged
|
|
Number
o Discovery
Shares
to be Received
|
||||
|
Yinshing
▇▇▇▇▇ To
|
95.09
|
10,241,893
|
|||||
|
▇▇▇▇
▇▇▇▇▇▇
|
2.45
|
264,388
|
|||||
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
|
2.45
|
264,388
|
|||||
|
Total
|
100
|
10,770,668
|
|||||
22