Attached files
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| 8-K - FORM 8-K WOLFE CREEK MINING - GREEN ENVIROTECH HOLDINGS CORP. | form8k.htm |
| EX-99.2 - EXHIBIT 99.2 - GREEN ENVIROTECH HOLDINGS CORP. | ex992.htm |
EXHIBIT
99.1
AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER is made as of the 20 day of November, 2009
AMONG:
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WOLFE CREEK MINING,
INC., a corporation formed pursuant to the laws of the State of
Delaware and having an office for business located at 15868 SW Kimball
Avenue, Lake Oswego, OR 97035
(“Wolfe
Creek”)
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AND:
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GREEN
ENVIROTECH ACQUISITION CORP. a corporation formed pursuant to the
laws of the State of Nevada and a wholly owned subsidiary of Wolfe Creek
and having an office for business located at 15868 SW Kimball Avenue, Lake
Oswego, OR 97035.
(the "Acquirer")
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AND:
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GREEN ENVIROTECH CORP.,
a corporation formed pursuant to the laws of the State of Nevada and
having an office for business located at 114 S Main Street Suite 201, Fond
Du Lac, WI 54935.
("Green
EnviroTech")
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WHEREAS:
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A. Green
EnviroTech is a Nevada corporation and is a plastics recovery, separation and
recycling company;
B. The
Green EnviroTech shareholders own an aggregate of 8,823,529 Green EnviroTech
shares of common stock (the “Green
EnviroTech Shares”) which Green EnviroTech Shares constitute 100% of the
issued and outstanding Green EnviroTech Shares;
C. Wolfe
Creek is a reporting company under the Securities Act of 1933, as
amended, whose common stock is eligible for quotation on the OTC Bulletin Board
under the symbol “WCRM.OB,” is a development stage, start-up company and
currently has no operations and is a “shell” company for purposes of the rules
and regulations of the Commission;
D. Effective
as of the Closing, Kristen Paul, the sole officer and director of Wolfe Creek
(the “Wolfe
Creek Executive”)
shall (i) resign as such and be replaced by persons designated by Green
EnviroTech.
E. The
respective Boards of Directors of Wolfe Creek, Green EnviroTech and the Acquirer
deem it advisable and in the best interests of Wolfe Creek, Green EnviroTech and
the Acquirer that the Acquirer merge with and into Green EnviroTech (the "Merger")
pursuant to this Agreement, the Certificates of Merger, and the applicable
provisions of the laws of the State of Nevada; and
F. All
capitalized terms not otherwise defined shall have the definitions set forth in
Article 1
hereof.
NOW THEREFORE, WITNESSETH THAT
in consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Definitions
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1.1
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In
this Agreement the following terms will have the following
meanings:
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(a)
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“Acquisition Shares”
means the Wolfe Creek Common Shares, which shares are to be
issued and delivered to the Green EnviroTech Shareholders at Closing
pursuant to the terms of the Merger in accordance with Schedule
1.1(a), annexed hereto;
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(b)
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“Agreement” means this
Agreement and Plan of Merger by and among Wolfe Creek, the Acquirer, and
Green EnviroTech;
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(c)
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“Closing” means the
completion, on the Closing Date, of the transactions contemplated hereby
in accordance with Article 9
hereof;
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(d)
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“Closing Date” means the
day on which all conditions precedent to the completion of the transaction
as contemplated hereby have been satisfied or
waived;
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(e)
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“Commission” means the
Securities and Exchange Commission;
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(f)
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“Effective Time” means
the earlier to occur of the date of (i) the Closing set forth in the
Certificate of Merger and (ii) the filing of the appropriate Certificates
of Merger in the form required by the State of Nevada provided that the
Merger shall become effective as provided in the
NGCL;
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(g)
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“Green EnviroTech Accounts
Receivable” means all accounts receivable and other amounts owing
to Green EnviroTech;
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(h)
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“Green EnviroTech Assets”
means all the property and assets of the Green EnviroTech Business
of every kind and description wherever situated including, without
limitation, Green EnviroTech Inventory, Green EnviroTech
Material Contracts, Green EnviroTech Accounts Receivable, Green EnviroTech
Cash, Green EnviroTech Intangible Assets and Green EnviroTech Goodwill,
and all credit cards, charge cards and banking cards issued to Green
EnviroTech;
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(i)
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“Green EnviroTech
Business” means all aspects of the business currently conducted by
Green EnviroTech and its
subsidiaries;
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(j)
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“Green EnviroTech Cash”
means all cash on hand or on deposit to the credit of Green EnviroTech on
the Closing Date;
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(k)
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“Green EnviroTech Financial
Statements” means collectively, the audited financial statements
of Green EnviroTech for the fiscal year ended December 31,
2008, and the unaudited financial statements for Green
EnviroTech for the period ended September 30, 2009, which shall be
delivered at Closing, all of which will be prepared in accordance with
United States generally accepted accounting principles and the
requirements of Regulation S-X as promulgated by the
Commission;
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(l)
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“Green EnviroTech
Goodwill” means the goodwill of the Green EnviroTech Business
together with the exclusive right of Green EnviroTech to
represent itself as carrying on the Green EnviroTech business in
succession of subject to the terms hereof, and the right to use any words
indicating that the Green EnviroTech Business is so carried on including
the right to use the name "Green EnviroTech” or any variation thereof as
part of the name of or in connection with the Green EnviroTech Business or
any part thereof carried on or to be carried on by Green EnviroTech, the
right to all corporate, operating and trade names associated with the
Green EnviroTech Business, or any variations of such names as part of or
in connection with the Green EnviroTech Business, all telephone listings
and telephone advertising contracts, all lists of customers, books and
records and other information relating to the Green EnviroTech Business,
all necessary licenses and authorizations and any other rights used in
connection with the Green EnviroTech
Business;
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(m)
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“Green EnviroTech Intangible
Assets” means all of the intangible assets of Green EnviroTech,
including, without limitation, Green EnviroTech Goodwill, all trademarks,
logos, copyrights, designs, and other intellectual and industrial property
of Green EnviroTech;
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(n)
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“Green EnviroTech
Inventory” means all inventory and supplies of the Green
EnviroTech Business as of September 30, 2009 as increased or
decreased in the ordinary course of
business;
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(o)
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“Green EnviroTech Material
Contracts” means the burden and benefit of and the right, title and
interest of Green EnviroTech in, to and under all trade and non-trade
contracts, engagements or commitments, whether written or oral, to which
Green EnviroTech is entitled in connection with the Green EnviroTech
Business under which Green EnviroTech is obligated to pay or
entitled to receive the sum of Five Thousand Dollars ($5,000) or more
annually including, without limitation, any pension plans, profit sharing
plans, bonus plans, loan agreements, security agreements, indemnities and
guarantees, any agreements with employees, lessees, licensees, managers,
accountants, suppliers, agents, distributors, officers, directors,
attorneys or others which cannot be terminated without liability on not
more than one month's notice;
and
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(p)
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“Green EnviroTech Shares”
means all of the issued and outstanding capital stock of Green
EnviroTech;
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(q)
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“Green EnviroTech
Shareholders” means all of the holders of the issued and
outstanding Green EnviroTech
Shares;
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(r)
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“Green EnviroTech Warrant
Holders” means all of the holders of issued and
outstanding Green EnviroTech
Warrants;
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(s)
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“Merger” means the
merger, at the Effective Time, of Green EnviroTech and the Acquirer
pursuant to this Agreement;
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“NGCL” means the Nevada
General Corporation Law.
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(t)
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“Place of Closing” means
the offices of Sichenzia Ross Friedman Ference LLP, or such other place as
Wolfe Creek and Green EnviroTech may mutually agree
upon;
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(u)
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“Securities Act” means
the Securities Act of 1933, as
amended;
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(v)
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“SEC Reports” means all
forms, reports and documents filed and required to be filed by Wolfe Creek
with the Commission under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) through the date
hereof;
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(w)
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“Surviving Company” means
Green EnviroTech following the
Merger;
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(x)
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“Wolfe Creek Business” means all
aspects of any business conducted by Wolfe Creek and its
subsidiaries;
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(y)
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“Wolfe Creek Common Shares” means the
shares of common stock, par value $0.001, in the capital of Wolfe
Creek;
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(z)
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“Wolfe Creek Financial
Statements” means, collectively, the audited financial statements
of Wolfe Creek for the two fiscal years ended December 31, 2008 and 2007,
and the unaudited financial statements of Wolfe Creek for the period ended
September 30, 2009;
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Any other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
Captions
and Section Numbers
1.2 The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
Section
References and Schedules
1.3 Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other subdivision
is to the particular Article, section, clause or other subdivision of this
Agreement and any reference to a “Schedule” by letter will mean
the appropriate Schedule attached to this Agreement and by such reference the
appropriate Schedule is incorporated into and made part of this
Agreement.
Severability
of Clauses
1.4 If
any part of this Agreement is declared or held to be invalid for any reason,
such invalidity will not affect the validity of the remainder which will
continue in full force and effect and be construed as if this Agreement had been
executed without the invalid portion, and it is hereby declared the intention of
the parties that this Agreement would have been executed without reference to
any portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE
2
THE
MERGER
The
Merger
2.1 At
Closing, the Acquirer shall be merged with and into Green EnviroTech pursuant to
this Agreement and the separate corporate existence of the Acquirer shall cease
and Green EnviroTech, as it exists from and after the Closing, shall be the
Surviving Company.
Effect
of the Merger
2.2 The
Merger shall have the effect provided therefore by the NGCL. Without
limiting the generality of the foregoing, and subject thereto, at Closing (i)
all the rights, privileges, immunities, powers and franchises, of a public as
well as of a private nature, and all property, real, personal and mixed, and all
debts due on whatever account, including without limitation subscriptions to
shares, and all other choices in action, and all and every other interest of or
belonging to or due to Green EnviroTech or the Acquirer, as a group, subject to
the terms hereof, shall be taken and deemed to be transferred to, and vested in,
the Surviving Company without further act or deed; and all property, rights and
privileges, immunities, powers and franchises and all and every other interest
shall be thereafter as effectually the property of the Surviving Company, as
they were of Green EnviroTech and the Acquirer, as a group, and (ii) all debts,
liabilities, duties and obligations of Green EnviroTech and the Acquirer, as a
group, subject to the terms hereof, shall become the debts, liabilities and
duties of the Surviving Company and the Surviving Company shall thenceforth be
responsible and liable for all debts, liabilities, duties and obligations of
Green EnviroTech and the Acquirer, as a group, and neither the rights of
creditors nor any liens upon the property of Green EnviroTech or the
Acquirer, as a group, shall be impaired by the Merger, and may be enforced
against the Surviving Company.
Articles
of Incorporation; Bylaws; Directors and Officers
2.3 The
Articles of Incorporation of Green EnviroTech from and after the Closing shall
be the Articles of Incorporation of the Surviving Company as in effect
immediately prior to the Closing until thereafter amended in accordance with the
provisions therein and as provided by the applicable provisions of the NGCL. The
Bylaws of Green EnviroTech from and after the Closing shall be the Bylaws of the
Surviving Company as in effect immediately prior to the Closing, continuing
until thereafter amended in accordance with their terms, the Articles of
Incorporation of the Surviving Company and as provided by the NGCL. The
directors and officers of Green EnviroTech immediately prior to the Closing
shall be the directors and officers of the Surviving Company.
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Conversion
of Securities
2.4 At
the Effective Time, by virtue of the Merger and without any action on the part
of the Acquirer or Green EnviroTech, the shares of capital stock of each of
Green EnviroTech and the Acquirer shall be converted as follows:
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(a)
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Capital Stock of the
Acquirer. Each issued and outstanding share of the Acquirer's
capital stock shall continue to be issued and outstanding and shall be
converted into one share of validly issued, fully paid, and non-assessable
common stock of the Surviving Company. Each stock certificate of the
Acquirer evidencing ownership of any such shares shall continue to
evidence ownership of such shares of capital stock of the Surviving
Company, all of which shall be owned by Wolfe
Creek.
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(b)
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Conversion of Green
EnviroTech Shares. Each Green EnviroTech Share that is issued and
outstanding at the Effective Time, shall automatically be cancelled and
extinguished and converted, without any action on the part of the holder
thereof, into the right to receive .3400005 of a share of Wolfe
Creek’s Common Stock for each Green EnviroTech Share. All such Green
EnviroTech Shares, when so converted, shall no longer be outstanding and
shall automatically be cancelled and retired and shall cease to exist, and
each holder of a certificate representing any such shares shall cease to
have any rights with respect thereto, except the right to receive the
Acquisition Shares paid in consideration therefor upon the surrender of
such certificate in accordance with this
Agreement.
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2.5
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Dissenting
Shareholders
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No Person
who has perfected a demand for appraisal rights pursuant to the NGCL (a
“Dissenting Shareholder”) shall be entitled to receive the Acquisition Shares or
other distributions pursuant to this Article II unless and until the holder
thereof shall have effectively withdrawn the demand for, or otherwise lost such
holder’s right to, appraisal under the NGCL, and any Dissenting Shareholder
shall be entitled to receive only the payment provided by the NGCL with respect
to Green EnviroTech Shares owned by such Dissenting Shareholder. For the
purposes of this Agreement, the term “Person” shall mean any individual,
corporation (including not-for-profit), general or limited partnership, limited
liability company, joint venture, estate, trust, association, organization,
governmental entity or other entity of any kind or nature. If any Dissenting
Shareholder shall have effectively withdrawn the demand for, or otherwise lost
the right to, appraisal with respect to any Green EnviroTech Shares, such
Dissenting Shareholder shall be entitled to receive only the amount to which
such shareholder would be entitled pursuant to this Article II. Green EnviroTech
shall provide such notices and take such actions as are required by law with
respect to the administration of the appraisal rights provided pursuant to the
NGCL.
5
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
WOLFE CREEK
Representations
and Warranties
3.1 Wolfe
Creek and the Acquirer jointly and severally represent and warrant in all
material respects to Green EnviroTech, with the intent that Green EnviroTech
will rely thereon in entering into this Agreement and in approving and
completing the transactions contemplated hereby, that:
Wolfe
Creek - Corporate Status and Capacity
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(a)
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Incorporation. Wolfe
Creek is a corporation duly incorporated and validly existing under the
laws of the State of Delaware, and is in good standing with the office of
the Secretary of State for the State of
Delaware.
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(b)
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Carrying on
Business. Wolfe Creek and its subsidiaries do not carry on any
material business activity in any jurisdiction. The nature of the Wolfe
Creek Business does not require Wolfe Creek and its subsidiaries to
register or otherwise be qualified to carry on business in any
jurisdiction other than the state of its organization, where
Wolfe Creek and its subsidiaries are each dully qualified and authorized
to do business;
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(c)
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Corporate
Capacity. Wolfe Creek has the corporate
power, capacity and authority to own its assets and to
enter into and complete this Agreement. None of Wolfe Creek’s subsidiaries
have any assets or liabilities.
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(d)
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Reporting Status;
Listing. Wolfe Creek is required to file current reports with the
Commission pursuant to Section 15(d) of the Exchange Act. Wolfe Creek’s
common stock is not registered under Section 12(g) of the Exchange
Act. The Wolfe Creek Common Shares are eligible for quotation
on the OTC Bulletin Board under the symbol “WCRM.OB”. None of Wolfe
Creek’s subsidiaries has common stock that is registered under
Section 12(g) of the Exchange Act and none of Wolf Creek’s subsidiaries is
required to file current reports with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act.
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(e)
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SEC Reports.
Wolfe Creek has filed all SEC Reports with the Commission under the
Exchange Act. The SEC Reports, at the time filed, complied as to form in
all material respects with the requirements of the Exchange Act. None of
the SEC Reports, including without limitation any financial statements or
schedules included therein, contains any untrue statements of a material
fact or omits to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made,
not misleading;
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Acquirer
- Corporate Status and Capacity
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(f)
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Incorporation.
The Acquirer is a corporation duly incorporated and validly existing under
the laws of the State of Nevada, and is in good standing with the office
of the Secretary of State for the State of
Nevada;
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(g)
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Carrying on
Business. Other than corporate formation and organization, the
Acquirer has not carried on business activities to
date;
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(h)
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Corporate
Capacity. The Acquirer has the corporate power, capacity and
authority to enter into and complete this
Agreement;
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Wolfe
Creek - Capitalization
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(i)
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Authorized
Capital. The authorized capital of Wolfe Creek consists of
75,000,000 shares of common stock, $0.001 par value, of which 4,000,000
Wolfe Creek Common Shares are presently issued and outstanding and
25,000,000 shares of Preferred Stock $.001 par value of which none are
outstanding. There are no preferred shares
authorized.
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(j)
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No Option, etc.
Except as provided in, contemplated by, or set forth in this Agreement or
the SEC Reports, no person, firm or corporation has any agreement, warrant
or option or any right capable of becoming an agreement, warrant or option
for the acquisition of any common or preferred shares of Wolfe Creek or
for the purchase, subscription or issuance of any of the unissued shares
in the capital of Wolfe Creek;
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Acquirer
- Capitalization
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(k)
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Authorized
Capital. The authorized capital of the Acquirer consists of 200
shares of common stock having a par value of .001 per share, of which 200
shares of common stock are presently issued and outstanding and which are
owned by Wolfe Creek;
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(l)
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No Option, etc.
Except as provided in contemplated by, or set forth in this Agreement, the
SEC Reports, no person, firm or corporation has any agreement or option or
any right capable of becoming an agreement or option for the acquisition
of any common or preferred shares in Acquirer or for the purchase,
subscription or issuance of any of the unissued shares in the capital of
Acquirer;
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Wolfe
Creek- Records and Financial
Statements
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(m)
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Charter
Documents. The charter documents of Wolfe Creek, as amended to date
and as of the Closing, and the Acquirer are as set forth as exhibits to
the officers certificate to be delivered at Closing pursuant to Section 9.3
hereof;
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(n)
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Corporate Minute
Books. Wolfe Creek and its subsidiaries are not in
violation or breach of, or in default with respect to, any term of their
respective Certificates of Incorporation (or other charter documents) or
by-laws;
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(o)
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Wolfe Creek Financial
Statements. The Wolfe Creek Financial Statements present fairly, in
all material respects, the assets and liabilities (whether accrued,
absolute, contingent or otherwise) of Wolfe Creek, including the assets
and liabilities, if any of Wolfe Creek’s subsidiaries, as of the
respective dates thereof, and the results of operations and changes in
financial position of Wolfe Creek during the period covered thereby, in
all material respects and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
indicated;
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(p)
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Wolfe Creek Accounts
Payable and Liabilities. There are no liabilities, contingent or
otherwise, of Wolfe Creek or its subsidiaries, which are not reflected in
the Wolfe Creek Financial Statements except which were incurred in the
ordinary course of business since the date of the Wolfe
Creek Financial Statements, all of which will be
satisfied prior to Closing, and neither Wolfe Creek nor its subsidiaries
have guaranteed or agreed to guarantee any debt, liability or other
obligation of any person, firm or
corporation;
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(q)
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Wolfe Creek
Receivable. There are no accounts receivable of Wolfe Creek or any
of Wolf Creek’s subsidiaries;
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(r)
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No Debt.
Neither Wolfe Creek nor its subsidiaries, are, on the date hereof and on
Closing, materially indebted to any, person or entity or other third
party, including any affiliate, director or officer of Wolfe
Creek;
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(s)
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No Related Party Debt
to Wolfe Creek. No director or officer or affiliate of Wolfe Creek
or its subsidiaries, is now indebted to or under any financial obligation
to Wolfe Creek or its subsidiaries on any account whatsoever, except for
advances on account of travel and other expenses not exceeding One
Thousand Dollars ($1,000) in total;
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(t)
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No
Dividends. No dividends or other distributions on any
shares in the capital of Wolfe Creek have been made, declared or
authorized since the date of the Wolfe Creek Financial
Statements;
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(u)
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No Payments. No
payments of any kind have been made or authorized since the date of the
Wolfe Creek Financial Statements to or on behalf of officers, directors,
shareholders or employees of Wolfe Creek or its subsidiaries or under any
management agreements with Wolfe Creek or its subsidiaries, except
payments made in the ordinary course of business and at the regular rates
of salary or other remuneration payable to
them;
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(v)
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No Pension
Plans. There are no pension, profit sharing, group insurance or
similar plans or other deferred compensation plans affecting Wolfe Creek
or its subsidiaries;
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(w)
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No Adverse
Events. Since December 31,
2008,
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(i)
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there
has not been any material adverse change in the properties, results of
operations, financial position or condition (financial or otherwise) of
Wolfe Creek, its subsidiaries, its assets or liabilities or any damage,
loss or other change in circumstances materially affecting Wolfe Creek,
the Wolfe Creek Business or Wolfe Creek’s right to carry on the Wolfe
Creek Business, other than non-material changes in the ordinary course of
business or as contemplated pursuant to this
Agreement,
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(ii)
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there
has not been any damage, destruction, loss or other event (whether or not
covered by insurance) materially and adversely affecting Wolfe Creek, its
subsidiaries, or the Wolfe Creek
Business,
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(iii)
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there
has not been any material increase in the compensation payable or to
become payable by Wolfe Creek to any of Wolfe Creek’s officers, employees
or agents or any bonus, payment or arrangement made to or with any of
them,
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(iv)
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the Wolfe
Creek Business has been and continues to be carried on in the ordinary
course,
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(v)
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Wolfe
Creek has not waived or surrendered any right of material
value,
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(vi)
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Wolfe
Creek has not discharged, satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business; and
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(vii)
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no
capital expenditures have been authorized or made by Wolfe
Creek.
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Wolfe
Creek - Income Tax Matters
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(x)
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Tax Returns. As
of the Closing Date, all tax returns of Wolfe Creek and its subsidiaries
required by law to be filed have been filed and are true, complete and
correct, and any taxes payable in accordance with any return filed by
Wolfe Creek and its subsidiaries, or in accordance with any notice of
assessment or reassessment issued by any taxing authority have been so
paid and no amounts are owed to any taxing authority as of the Closing
Date. Without limiting the generality of the foregoing, Wolfe Creek hereby
represents that no amounts are owed to any taxing authorities by Wolfe
Creek and/or its subsidiaries, for the period commencing on the formation
(incorporation) of Wolfe Creek though the Closing
Date;
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(y)
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Current Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by, or
payment of, any tax, governmental charge or deficiency by Wolfe Creek or
its subsidiaries. There are no contingent tax liabilities or
any grounds which would prompt a reassessment including aggressive
treatment of income and expenses in filing earlier tax returns for Wolfe
Creek or its subsidiaries;
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Wolfe
Creek - Applicable Laws and Legal Matters
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(z)
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Licenses. Wolfe
Creek and its subsidiaries hold all licenses and permits as may be
requisite for carrying on the Wolfe Creek Business in the manner in which
it has heretofore been carried on, which licenses and permits have been
maintained and continue to be in good standing except where the failure to
obtain or maintain such licenses or permits would not have a material
adverse effect on the Wolfe Creek
Business;
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(aa)
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Applicable
Laws. Neither Wolfe Creek nor its subsidiaries have been charged
with or received notice of breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which is subject or which apply
to it the violation of which would have a material adverse effect on the
Wolfe Creek Business, and to Wolfe Creek’s knowledge, Wolfe Creek is not
in breach of any laws, ordinances, statutes, regulations, bylaws, orders
or decrees the contravention of which would result in a material adverse
impact on the Wolfe Creek Business;
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(bb)
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Pending or Threatened
Litigation. There is no litigation or administrative or
governmental proceeding pending or threatened against or relating to Wolfe
Creek, its subsidiaries, or the Wolfe Creek Business nor does Wolfe Creek
have any knowledge of any act or omission of Wolfe Creek or its
subsidiaries that would form any material basis for any such action or
proceeding;
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(cc)
|
No Bankruptcy.
Neither Wolfe Creek nor its subsidiaries have made any voluntary
assignment or proposal under applicable laws relating to insolvency and
bankruptcy and no bankruptcy petition has been filed or presented against
Wolfe Creek or its subsidiaries and no order has been made or a resolution
passed for the winding-up, dissolution or liquidation of Wolfe Creek or
its subsidiaries;
|
|
(dd)
|
Labor
Matters. Neither Wolfe Creek nor its subsidiaries is a
party to any collective agreement relating to the Wolfe Creek Business
with any labor union or other association of employees and no part of the
Wolfe Creek Business has been certified as a unit appropriate for
collective bargaining or, to the knowledge of Wolfe Creek, has made any
attempt in that regard;
|
|
(ee)
|
Finder's Fees.
Unless otherwise disclosed, neither Wolfe Creek nor its subsidiaries is a
party to any agreement which provides for the payment of finder's fees,
brokerage fees, commissions or other fees or amounts which are or may
become payable to any third party in connection with the execution and
delivery of this Agreement and the transactions contemplated
herein;
|
Execution
and Performance of Agreement
|
(ff)
|
Authorization and
Enforceability. The execution and delivery of this Agreement, and
the completion of the transactions contemplated hereby, have been duly and
validly authorized by all necessary corporate action on the part of Wolfe
Creek and the Acquirer;
|
|
(gg)
|
No Violation or
Breach. The execution and performance of this Agreement will
not:
|
|
(i)
|
violate
the charter documents of Wolfe Creek or the Acquirer or result in any
breach of, or default under, any loan agreement, mortgage, deed of trust,
or any other agreement to which Wolfe Creek or its subsidiaries are a
party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement or any right or
rights enjoyed by Wolfe Creek or its
subsidiaries,
|
9
|
(iii)
|
result
in any alteration of Wolfe Creek’s or its subsidiaries’ obligations under
any agreement to which Wolfe Creek or its subsidiaries are a
party,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction of
any nature whatsoever in favor of a third party upon or against the assets
of Wolfe Creek,
|
|
(v)
|
result
in the imposition of any tax liability to Wolfe Creek or its subsidiaries
relating to the assets of Wolfe Creek,
or
|
|
(vi)
|
violate
any court order or decree to which Wolfe Creek or its subsidiaries are
subject;
|
The
Wolfe Creek Business
|
(hh)
|
Maintenance of
Business. Since the date of the Wolfe Creek Financial Statements,
Wolfe Creek and its subsidiaries have not entered into any
material agreement or commitment except as set forth in this
Agreement;
|
|
(ii)
|
Subsidiaries.
Except for the Acquirer, Wolfe Creek does not own any subsidiaries and
does not otherwise own, directly or indirectly, any shares or interest in
any other corporation, partnership, joint venture or
firm. References in this Agreement to any subsidiaries of Wolfe
Creek shall include the Acquirer and any other subsidiary that Wolfe Creek
may have but has not disclosed in this
Agreement;
|
Wolfe
Creek - Acquisition Shares and Acquisition Warrants
|
(jj)
|
Acquisition Shares and
Acquisition Warrants. The Acquisition Shares when delivered to the
holders of Green EnviroTech Shares pursuant to the Merger shall be validly
issued and outstanding as fully paid and non-assessable shares
transferable upon the books of Wolfe Creek, in all cases subject to the
provisions and restrictions of all applicable securities laws;
and
|
|
(kk)
|
Securities Law
Compliance. Except as set forth in the SEC Reports,
Wolfe Creek has not issued any shares of its common stock and/or
securities convertible into or exercisable for shares of common
stock. Neither Wolfe Creek nor any person acting on its behalf
has taken or will take any action (including, without limitation, any
offering of any securities of Wolfe Creek under circumstances which would
require the integration of such offering with the offering of the
Acquisition Shares issued to the Green EnviroTech Shareholders) which
subject the issuance or sale of such shares to the Green EnviroTech
Shareholders to the registration requirements of Section 5 of the
Securities Act.
|
Non-Merger
and Survival
3.2 The
representations and warranties of Wolfe Creek and the Acquirer contained herein
are true and correct as of the date of this Agreement and will be true at and as
of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion
of the transactions contemplated hereby, the waiver of any condition contained
herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by the Wolfe Creek
Shareholders, the representations and warranties of Wolfe Creek shall survive
the Closing for a period of two (2) years.
Indemnity
3.3 Wolfe
Creek shall indemnify and save harmless Green EnviroTech and the Green
EnviroTech Shareholders from and against any and all claims, demands,
actions, suits, proceedings, assessments, judgments, damages, costs, losses and
expenses, including any payment made in good faith in settlement of any claim,
resulting from the breach by Wolfe Creek of any representation, covenant or
warranty made under this Agreement or from any misrepresentation in or omission
from any certificate or other instrument furnished or to be furnished by Wolfe
Creek and/or the Acquirer to Green EnviroTech hereunder.
10
ARTICLE
4
COVENANTS
OF WOLFE CREEK
Covenants
|
4.1
|
Wolfe Creek covenants and agrees with Green EnviroTech that Wolfe Creek will: |
|
(a)
|
Conduct of
Business. Until the Closing, conduct its business diligently and in
the ordinary course consistent with the manner in which it generally has
been operated up to the date of execution of this
Agreement;
|
|
(b)
|
Access. Until
the Closing, give the Green EnviroTech Shareholders and their
representatives full access to all of the properties, books, contracts,
commitments and records of Wolfe Creek, and furnish to the Green
EnviroTech Shareholders and their representatives all such information as
they may reasonably request;
|
|
(c)
|
Procure
Consents. Until the Closing, take all reasonable steps required to
obtain, prior to Closing, any and all third party consents required to
permit the Merger;
|
|
(d)
|
Public
Information. Make and keep public information available,
as those terms are understood and defined in Rule 144 (defined below);
and
|
|
(e)
|
SEC
Filings. File with the Commission in a timely manner,
all reports and other documents required of Wolfe Creek under either the
Securities Act or the Exchange Act.
|
|
(f)
|
Tax Returns.
Wolfe Creek shall on and after the Closing Date be responsible for any
taxes owed or penalties thereon pertaining to the failure of Wolfe Creek
and its subsidiaries to file tax returns with the appropriate
jurisdictions for any periods prior to
Closing.
|
|
(g)
|
Bulletin
Board. Until the Closing, advise Green EnviroTech of any
problems, letters and/or concerns relating to the continued eligibility of
Wolfe Creek Common Shares to be eligible for quotation on the OTC Bulletin
Board.
|
Authorization
|
4.2
|
Upon
the Closing, Wolfe Creek shall authorize and direct any and all federal,
state, municipal, foreign and international governments and regulatory
authorities having jurisdiction respecting Wolfe Creek and its
subsidiaries to release any and all information in their possession
respecting Wolfe Creek and its subsidiaries to Green
EnviroTech. Wolfe Creek shall promptly execute and deliver to
Green EnviroTech any and all consents to the release of
information and specific authorizations which Green
EnviroTech reasonably requires to gain access to any and all
such information.
|
Reports
Under the Exchange Act
|
4.3
|
With
a view to making available to the Green EnviroTech Shareholders the
benefits of Rule 144 promulgated under the Securities Act or any other
similar rule or regulation of the Commission that may at any time permit
the Green EnviroTech Shareholders to
sell securities of Wolfe Creek to the public without registration and
without imposing restrictions arising under the federal securities laws on
the purchases thereof (“Rule
144”), and provided that the applicable holding period imposed by
Rule 144 has been met, Wolfe Creek agrees to furnish to each Green
EnviroTech Shareholder, so
long as such Green EnviroTech Shareholder owns
Wolfe Creek Common Shares, promptly upon request, (i) a written statement
by Wolfe Creek that it has complied with the reporting requirements of
Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most
recent annual or quarterly report of Wolfe Creek and such other reports
and documents so filed by Wolfe Creek, and (iii) such other information as
may be reasonably requested to permit the Green EnviroTech Shareholders to
sell such securities pursuant to Rule 144 without
registration.
|
Survival
|
4.4
|
The
covenants set forth in this Article shall survive the Closing for the
benefit of the Green EnviroTech Shareholders
and shall continue to survive for a period of one (1) year from the
Closing Date.
|
11
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
GREEN
ENVIROTECH
Representations
and Warranties
5.1 Green
EnviroTech represents and warrants in all material respects to Wolfe Creek, with
the intent that it will rely thereon in entering into this Agreement and in
approving and completing the transactions contemplated hereby,
that:
Green
EnviroTech - Corporate Status and Capacity
|
(a)
|
Incorporation.
Green EnviroTech is a corporation duly incorporated and validly
existing under the laws of the State of Nevada, and is in good standing
with the office of the Secretary of State for the State of
Nevada;
|
|
(b)
|
Carrying on
Business. Green EnviroTech carries on business primarily in the
State of Wisconsin and does not carry on any
material business activity in any other jurisdiction within the United
States. The nature of the Green EnviroTech Business does not require Green
EnviroTech to register or otherwise be qualified to carry on
business in any other jurisdiction;
|
|
(c)
|
Corporate
Capacity. Green EnviroTech has the corporate power, capacity and
authority to own the Green EnviroTech Assets and to carry on the Green
EnviroTech Business and Green EnviroTech has the corporate power, capacity
and authority to enter into and complete this
Agreement;
|
Green
EnviroTech - Capitalization
|
(d)
|
Authorized
Capital. The authorized capital of Green EnviroTech consists of
600,000,000 shares of common stock, $0.001 par
value;
|
|
(e)
|
Ownership of W2
Shares. The issued and outstanding share capital of Green
EnviroTech consist of 8,823,529 common shares (being the Green EnviroTech
Shares), which shares on Closing shall be validly issued and outstanding
as fully paid and non-assessable shares. The Green EnviroTech Shareholders
will be at Closing the registered and beneficial owner of the Green
EnviroTech Shares. The Green EnviroTech Shares owned by the Green
EnviroTech Shareholders will on Closing be free and clear of any and all
liens, charges, pledges, encumbrances, restrictions on transfer and
adverse claims whatsoever not created by or through Wolfe Creek
and/or the Acquirer;
|
|
|
|
(f)
|
No
Restrictions. There are no restrictions on the transfer, sale or
other disposition of Green EnviroTech Shares contained in the
charter documents of Green EnviroTech or under any
agreement;
|
12
Green
EnviroTech - Records and Financial Statements
|
(g)
|
Charter
Documents. The charter documents of Green EnviroTech have not been
altered since its incorporation date, except as filed in the record books
of Green EnviroTech, and Green EnviroTech is not in violation or breach
of, or in default with respect to, any term of its Articles of
Incorporation (or other charter documents) or
by-laws;
|
|
(h)
|
Green
EnviroTech Financial
Statements. The Green EnviroTech Financial Statements present
fairly, in all material respects, the assets and liabilities (whether
accrued, absolute, contingent or otherwise) of Green EnviroTech as of the
respective dates thereof, and the results of operations and changes in
financial position of Green EnviroTech during the periods covered thereby,
and will be prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods
indicated;
|
|
(i)
|
Green
EnviroTech Accounts Payable and
Liabilities. There are no material liabilities, contingent or
otherwise, of Green EnviroTech which are not reflected in the Green
EnviroTech Financial Statements except those incurred in the ordinary
course of business since the date of the Green
EnviroTech Financial
Statements;
|
|
(j)
|
No Dividends.
No dividends or other distributions on any shares in the capital of Green
EnviroTech have been made, declared or authorized since the date of the
Green EnviroTech Financial
Statements;
|
|
|
|
|
Green EnviroTech - Income Tax
Matters
|
(k)
|
Tax Returns.
All tax returns and reports of Green EnviroTech required by law to be
filed have been filed and to the best of Green EnviroTech’s knowledge and
belief are true, complete and correct, and any taxes payable in accordance
with any return filed by Green EnviroTech or in accordance with any notice
of assessment or reassessment issued by any taxing authority have been so
paid;
|
|
(l)
|
Current Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by, or
payment of, any tax, governmental charge or deficiency by Green
EnviroTech. Green EnviroTech is not aware of any contingent tax
liabilities or any grounds which would prompt a reassessment including
aggressive treatment of income and expenses in filing earlier tax
returns;
|
Green EnviroTech - Applicable Laws and Legal
Matters
|
(m)
|
Licenses. Green
EnviroTech holds all licenses and permits as may be requisite for carrying
on the Green EnviroTech Business in the manner in which it has heretofore
been carried on, which licenses and permits have been maintained and
continue to be in good standing except where the failure to obtain or
maintain such licenses or permits would not have a material adverse effect
on the Green EnviroTech Business;
|
|
(n)
|
Applicable
Laws. Green EnviroTech has not been charged with or
received notice of breach of any laws, ordinances, statutes, regulations,
by-laws, orders or decrees to which it is subject or which applies to it
the violation of which would have a material adverse effect on the Green
EnviroTech Business, and, to Green EnviroTech’s knowledge and belief,
Green EnviroTech is not in breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees the contravention of which would
result in a material adverse impact on the Green EnviroTech’s
Business;
|
|
(o)
|
Pending or Threatened
Litigation. There is no material litigation or administrative or
governmental proceeding pending or threatened against or relating to Green
EnviroTech, the Green EnviroTech Business, or any of the Green EnviroTech,
nor does Green EnviroTech have any knowledge of any deliberate act or
omission of Green EnviroTech that would form any material basis for any
such action or proceeding;
|
13
|
(p)
|
No Bankruptcy.
Green EnviroTech has not made any voluntary assignment or proposal under
applicable laws relating to insolvency and bankruptcy and no bankruptcy
petition has been filed or presented against Green EnviroTech and no order
has been made or a resolution passed for the winding-up, dissolution or
liquidation of Green EnviroTech;
|
|
(q)
|
Labor Matters.
Green EnviroTech is not a party to any collective agreement relating to
the Green EnviroTech Business with any labor union or other association of
employees and no part of the Green EnviroTech Business has been certified
as a unit appropriate for collective bargaining or, to the knowledge of
Green EnviroTech, has made any attempt in that regard and Green EnviroTech
has no reason to believe that any current employees will leave Green
EnviroTech’s employ as a result of this
Merger;
|
|
|
Execution
and Performance of Agreement
|
(r)
|
Authorization and
Enforceability. The execution and delivery of this Agreement, and
the completion of the transactions contemplated hereby, have been duly and
validly authorized by all necessary corporate action on the part of Green
EnviroTech and the Green
EnviroTech Shareholders;
|
|
(s)
|
No Violation or
Breach. The execution and performance of this Agreement will
not
|
|
(i)
|
violate
the charter documents of Green EnviroTech or result in any breach of, or
default under, any loan agreement, mortgage, deed of trust, or any other
agreement to which Green EnviroTech is a
party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, Green EnviroTech Material Contracts, or any right or
rights enjoyed by Green EnviroTech
,
|
|
(iii)
|
result
in any material alteration of Green EnviroTech’s obligations under any
agreement to which Green EnviroTech is a party including, without
limitation, the Green EnviroTech Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction of
any nature whatsoever in favor of a third party upon or against Green
EnviroTech,
|
|
(v)
|
result
in the imposition of any tax liability to Green EnviroTech relating to
Green EnviroTech Assets or the Green EnviroTech Shares,
or
|
|
(vi)
|
violate
any court order or decree to which Green EnviroTech is
subject;
|
Green EnviroTech Assets - Ownership and
Condition
|
|
|
|
|
(t)
|
No
Option. No person, firm or corporation has any agreement
or option or a right capable of becoming an agreement for the purchase of
any of the Green EnviroTech Assets;
|
|
|
|
(u)
|
Green EnviroTech
Material Contracts. The Green EnviroTech Material Contracts
constitute all of the material contracts of Green
EnviroTech;
|
|
(v)
|
No Default.
There has not been any default in any material obligation of Green
EnviroTech or any other party to be performed under any of the Green
EnviroTech Material Contracts, each of which is in good standing and in
full force and effect and unamended, and Green EnviroTech is not aware of
any default in the obligations of any other party to any of the Green
EnviroTech Material
Contracts;
|
|
|
14
Green EnviroTech Assets – Green
EnviroTech Goodwill and
Other Assets
|
(w)
|
Green
EnviroTech does not have any knowledge of any infringement by Green
EnviroTech of any patent, trademark, copyright or trade
secret;
|
|
|
The Business of Green
EnviroTech
|
|
(x)
|
Maintenance of
Business. Since the date of the Green EnviroTech Financial
Statements, the Green EnviroTech Business has been carried on in the
ordinary course, and Green EnviroTech has not entered into any
material agreement or commitment except in the ordinary course;
and
|
|
(y)
|
Subsidiaries.
Other than as provided on Schedule 5.1(y)
annexed hereto, does not have any subsidiaries and does not otherwise own,
directly or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm.
|
Non-Merger
and Survival
5.2 The
representations and warranties of Green EnviroTech contained herein will be true
at and as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion
of the transactions contemplated hereby, the waiver of any condition contained
herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by Wolfe Creek the
representations and warranties of Green EnviroTech shall survive the Closing for
a period of two (2) years.
Indemnity
5.3 Green
EnviroTech agrees to indemnify and save harmless Wolfe Creek from and against
any and all claims, demands, actions, suits, proceedings, assessments,
judgments, damages, costs, losses and expenses, including any payment made in
good faith in settlement of any claim (subject to the right of Green EnviroTech
to defend any such claim), resulting from the breach by Green EnviroTech of any
representation or warranty of Green EnviroTech made under this
Agreement or from any misrepresentation in or omission from any certificate or
other instrument furnished or to be furnished by Green EnviroTech to Wolf Creek
hereunder. Legal fees and other costs of defending and prosecuting
this action shall be borne by Green EnviroTech.
ARTICLE
6
COVENANTS
OF GREEN ENVIROTECH
Covenants
6.1 Green
EnviroTech covenants and agrees with Wolfe Creek that it will:
|
(a)
|
Conduct of
Business. Until the Closing, conduct the Green EnviroTech Business
diligently and in the ordinary course consistent with the manner in which
the Green EnviroTech Business generally has been operated up to the date
of execution of this Agreement;
|
|
(b)
|
Preservation of
Business. Until the Closing, use its best efforts to
preserve the Green EnviroTech Business and the Green EnviroTech
Assets;
|
|
|
15
|
(c)
|
Procure
Consents. Until the Closing, take all reasonable steps required to
obtain, prior to Closing, any and all third party consents required to
permit the Merger and to preserve and maintain the Green EnviroTech
Assets, including the Green EnviroTech Material Contracts;
and
|
|
(d)
|
Reporting and Internal
Controls. From and after the Effective Time, forthwith take all
required actions to implement internal controls on the business of the
Surviving Company to ensure that the Surviving Company complies with
Section 13(b)(2) of the Exchange
Act.
|
Authorization
6.2 Green
EnviroTech hereby agrees to authorize and direct any and all federal, state,
municipal, foreign and international governments and regulatory authorities
having jurisdiction respecting Green EnviroTech to release any and all
information in their possession respecting Green EnviroTech to Wolfe Creek.
Green EnviroTech shall promptly execute and deliver to Wolfe Creek any and all
consents to the release of information and specific authorizations which Wolfe
Creek requires to gain access to any and all such information.
Survival
6.3 The
covenants set forth in this Article shall survive the Closing for the benefit of
Wolfe Creek.
ARTICLE
7
CONDITIONS
PRECEDENT
Conditions
Precedent in favor of Wolfe Creek
7.1 Wolfe
Creek obligations to carry out the transactions contemplated hereby are subject
to the fulfillment (or waiver by Wolfe Creek) of each of the following
conditions precedent on or before the Closing:
|
(a)
|
all
documents or copies of documents and securities issuances and wire
transfers required to be executed and delivered to Wolfe Creek as set
forth in Article
9 hereof will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Green EnviroTech at or prior to the Closing will have
been complied with or performed;
|
|
|
|
(c)
|
title
to the Green EnviroTech Shares held by the Green EnviroTech Shareholders
will be free and clear of all mortgages, liens, charges, pledges, security
interests, encumbrances or other claims whatsoever not created by or
through Wolfe Creek and/or the
Acquirer;
|
|
(d)
|
the
Certificates of Merger shall be executed by Green EnviroTech in form
acceptable for filing with Secretary of State of
Nevada;
|
|
(e)
|
subject
to Article
8 hereof, there will not have
occurred:
|
|
|
|
(i)
|
any
material adverse change in the financial position or condition of Green
EnviroTech, its liabilities or the Green EnviroTech Assets or any damage,
loss or other change in circumstances materially and adversely affecting
the Green EnviroTech Business or the Green EnviroTech Assets or
Green EnviroTech’s right to carry on the Green EnviroTech Business, other
than changes in the ordinary course of business, none of which has been
materially adverse, or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any laws or
statutes applicable to Green EnviroTech or the Green EnviroTech Business
(whether or not covered by insurance) materially and adversely affecting
Green EnviroTech, the Green EnviroTech Business or the Green EnviroTech
Assets;
|
16
|
|
|
(f)
|
the
transactions contemplated hereby shall have been approved by all other
regulatory authorities having jurisdiction over the subject matter hereof,
if any; and
|
|
(g)
|
all
representations and warranties of Green EnviroTech contained herein shall
be true and correct as of the Closing
Date.
|
Waiver
by Wolfe Creek
7.2 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Wolfe Creek and any such condition may be waived in whole
or in part by Wolfe Creek at or prior to Closing by delivering to Green
EnviroTech a written waiver to that effect signed by Wolfe Creek. In the event
that the conditions precedent set out in the preceding section are not satisfied
on or before the Closing, Wolfe Creek shall be released from all obligations
under this Agreement.
Conditions
Precedent in Favor of Green EnviroTech
7.3 The
obligations of Green EnviroTech to carry out the transactions contemplated
hereby are subject to the fulfillment of each of the following conditions
precedent on or before the Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered to
Green EnviroTech or the Green EnviroTech Shareholders
hereunder will have been so executed and
delivered;
|
|
(b)
|
the
Wolfe Creek Executive shall have tendered her resignation in a form
reasonably acceptable to Green EnviroTech, and the Green EnviroTech’s
Shareholders’ nominees shall have been appointed to Wolfe Creek’s board of
directors in a form reasonably acceptable to Green
EnviroTech;
|
|
(c)
|
Wolfe
Creek shall have no liabilities (or all outstanding liabilities shall be
satisfied at Closing);
|
|
(d)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Wolfe Creek or the Acquirer at or prior to the
Closing shall have been complied with or
performed;
|
|
(e)
|
Green
EnviroTech shall have completed its review and inspection of the books and
records of Wolfe Creek and its subsidiaries and shall be reasonably
satisfied with same in all material
respects;
|
|
(f)
|
Wolfe
Creek shall have delivered an irrevocable instruction letter to the
transfer agent to issue the Acquisition Shares to be issued pursuant to
the terms of the Merger to the Green EnviroTech Shareholders
and the Acquisition Shares will be registered on the books of Wolfe Creek
in the name of the Green EnviroTech Shareholders at the Effective
Time;
|
|
(g)
|
title
to the Acquisition Shares will be free and clear of all mortgages, liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
|
(h)
|
the
Certificates of Merger shall be executed by the Acquirer in form
acceptable for filing with the Secretary of State of
Nevada;
|
|
(i)
|
subject
to Article
8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of Wolfe
Creek, its subsidiaries, their assets or liabilities or any damage, loss
or other change in circumstances materially and adversely affecting Wolfe
Creek or the Wolfe Creek Business or Wolf Creek’s right to carry on the
Wolfe Creek Business, other than changes in the ordinary course of
business, none of which has been materially adverse,
or
|
17
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any laws or
statutes applicable to Wolfe Creek or the Wolfe Creek Business (whether or
not covered by insurance) materially and adversely affecting Wolfe Creek,
its subsidiaries or its assets;
|
|
(l)
|
the
transactions contemplated hereby shall have been approved by all other
regulatory authorities having jurisdiction over the subject matter hereof,
if any;
|
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(m)
|
all
representations and warranties of Wolfe Creek and the Acquirer contained
herein shall be true and correct as of the Closing Date;
and
|
|
(n)
|
Wolfe
Creek shall prepare appropriate tax returns for Wolfe Creek and any of its
subsidiaries as contemplated in Section 3.1(x)
and shall submit such return to Green EnviroTech for its review and
comment; Wolfe Creek shall incorporate any reasonable comments of Green
EnviroTech into such tax returns and after Wolfe Creek shall file such
returns with the appropriate jurisdiction. Wolfe Creek shall pay and be
responsible for all filing fees, penalties and payments related to such
tax returns.
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Waiver
by Green EnviroTech
7.4 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Green EnviroTech and any such condition may be waived in
whole or in part by Green EnviroTech at or prior to the Closing by delivering to
Wolfe Creek a written waiver to that effect signed by Green
EnviroTech. In the event that the conditions precedent set out in the
preceding section are not satisfied on or before the Closing Green EnviroTech
shall be released from all obligations under this Agreement.
Nature
of Conditions Precedent
7.5 The
conditions precedent set forth in this Article 7 are
conditions of completion of the transactions contemplated by this Agreement and
are not conditions precedent to the existence of a binding agreement. Each party
acknowledges receipt of the sum of $1.00 and other good and valuable
consideration as separate and distinct consideration for agreeing to the
conditions precedent in favor of the other party or parties set forth in this
Article
7.
Confidentiality
7.6 Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
existence and terms of this Agreement are confidential and that if this
Agreement is terminated pursuant to the preceding section the parties agree to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation and
execution of this Agreement and shall keep the terms of this Agreement and all
information and documents received from Green EnviroTech and Wolfe Creek and the
contents thereof confidential and not utilize nor reveal or release same,
provided, however, that Wolfe Creek may be required to issue news releases
regarding the execution and consummation of this Agreement and file a Current
Report on Form 8-K with the Commission respecting the proposed Merger
contemplated hereby together with such other documents as are required to
maintain the currency of Wolfe Creek’s filings with the Commission.
ARTICLE
8
RISK
Material
Change in the Business of Green EnviroTech
8.1 If
any material loss or damage to the Green EnviroTech Business occurs
prior to Closing and such loss or damage, in Wolfe Creek’s reasonable
opinion, cannot be substantially repaired or replaced within sixty (60) days,
Wolfe Creek shall, within two (2) days following any such loss or damage, by
notice in writing to Green EnviroTech, at its option, either:
18
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
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|
(b)
|
elect
to complete the Merger and the other transactions contemplated hereby, in
which case the proceeds and the rights to receive the proceeds of all
insurance covering such loss or damage will, as a condition precedent to
Wolfe Creek’s obligations to carry out the transactions contemplated
hereby, be vested in Green EnviroTech or otherwise adequately secured to
the satisfaction of Wolfe Creek on or before the Closing
Date.
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Material
Change in the Wolfe Creek Business
8.2 If
any material loss or damage to the Wolfe Creek Business occurs prior to Closing
and such loss or damage, in Green EnviroTech's reasonable opinion, cannot be
substantially repaired or replaced within sixty (60) days, Green EnviroTech
shall, within two (2) days following any such loss or damage, by notice in
writing to Wolf Creek, at its option, either:
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Merger and the other transactions contemplated hereby, in
which case the proceeds and the rights to receive the proceeds of all
insurance covering such loss or damage will, as a condition precedent to
Green EnviroTech’s obligations to carry out the transactions contemplated
hereby, be vested in Wolfe Creek or otherwise adequately secured to the
satisfaction of Green EnviroTech on or before the Closing
Date.
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ARTICLE
9
CLOSING
Closing
9.1 The
Merger and the other transactions contemplated by this Agreement will be closed
on or before November 31, 2009, in accordance with the closing procedure set out
in this Article
9.
Documents to be Delivered by Green
EnviroTech
9.2 On
or before the Closing, Green EnviroTech will deliver or cause to be delivered to
Wolfe Creek:
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|
|
(a)
|
an
executed copy of this Agreement;
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|
(b)
|
all
reasonable consents or approvals required to be obtained by Green
EnviroTech for the purposes of completing the Merger and preserving and
maintaining the interests of Green EnviroTech under any and all Green
EnviroTech Material Contracts and in relation to Green EnviroTech
Assets;
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|
(c)
|
an
officers certificate containing articles, bylaws, and certified copies of
such resolutions of the shareholders and directors of Green EnviroTech as
are required to be passed to authorize the execution, delivery and
implementation of this Agreement;
|
|
(d)
|
an
acknowledgment from Green EnviroTech of the satisfaction of the conditions
precedent set forth in Section 7.3;
and
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|
(e)
|
such
other documents as Wolfe Creek reasonably require to give effect to the
terms and intention of this
Agreement.
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|
|
19
Documents
to be Delivered by Wolfe Creek
9.3 On
or before the Closing, Wolfe Creek and the Acquirer shall deliver or cause to be
delivered to Green EnviroTech:
|
(a)
|
an
executed copy of this Agreement;
|
|
(b)
|
an
irrevocable instruction letter to the transfer agent to issue share
certificates representing the Acquisition Shares duly registered in the
names of the Green EnviroTech;
|
|
(c)
|
an
officers certificate containing articles, bylaws, and certified copies of
such resolutions of the directors of Wolfe Creek and the Acquirer as are
required to be passed to authorize the execution, delivery and
implementation of this Agreement;
|
|
(d)
|
a
certified copy of a resolution of the directors of Wolfe Creek dated as of
the Closing Date appointing the nominees of the Green EnviroTech
Shareholders to the board of directors of Wolfe
Creek;
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|
(e)
|
resignation
of the Wolfe Creek Executive in a form reasonably acceptable to Green
EnviroTech;
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|
(f)
|
an
opinion of counsel to Wolfe Creek reasonably acceptable to Green
EnviroTech;
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|
(g)
|
proof of the filing of all tax
returns referred to in Section 3.1(x)
in the appropriate jurisdictions for Wolfe Creek and any of its
subsidiaries;
|
|
(h)
|
an
acknowledgement from Wolfe Creek of the satisfaction of the conditions
precedent set forth in Section 7.1 hereof;
and
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|
(i)
|
such
other documents as Green EnviroTech may reasonably require to give effect
to the terms and intention of this Agreement.
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|
(j)
|
ARTICLE
10
POST-CLOSING
MATTERS
General
10.1 Forthwith
after the Closing, Wolfe Creek and Green EnviroTech agree to use all their best
efforts to:
|
(a)
|
file
the Certificates of Merger with the Secretary of State of Nevada;
and
|
|
(b)
|
issue
a news release reasonably acceptable to each party reporting the Closing;
and
|
|
(c)
|
file
a Form 8-K with the Commission disclosing the terms of this Agreement
which includes audited financial statements of Green
EnviroTech as well as pro forma financial information of Green
EnviroTech and Wolfe Creek as required by Regulation S-X as promulgated by
the Commission (all at no cost to the Green EnviroTech Shareholders);
and
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|
(d)
|
take
such steps as required to change the name of Wolfe Creek to
“Green EnviroTech Holdings, Corp.” as of the earliest practical
date following the date hereof but in any event within 60 days of the
Closing;
|
20
ARTICLE
11
GENERAL
PROVISIONS
Arbitration
11.1 The
parties hereto shall attempt to resolve any dispute, controversy, difference or
claim arising out of or relating to this Agreement by negotiation in good
faith. If such good negotiation fails to resolve such dispute,
controversy, difference or claim within thirty (30) days after any party
delivers to any other party a notice of its intent to submit such matter to
arbitration, then any party to such dispute, controversy, difference or claim
may submit such matter to arbitration.
Any
action or proceeding seeking to enforce any provision of, or based upon any
right arising out of, this Agreement shall be settled by binding arbitration by
a panel of three (3) arbitrators in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and governed by the laws of the
State of Nevada (without regard to the choice-of-law rules or principles of that
jurisdiction). Judgment upon the award may be entered in any court
located in the State of New York, and all the parties hereto hereby expressly
waive any objections or defense based upon lack of personal
jurisdiction.
Each
of the plaintiff and defendant party to the arbitration shall select one (1)
arbitrator (or where multiple plaintiffs and/or defendants exist, one (1)
arbitrator shall be chosen collectively by such parties comprising the
plaintiffs and one (1) arbitrator shall be chosen collectively by those parties
comprising the defendants) and then the two (2) arbitrators shall mutually agree
upon the third arbitrator. Where no agreement can be reached on the
selection of either a third arbitrator or an arbitrator to be named by either a
group of plaintiffs or a group of defendants, any implicated party may apply to
a judge of the courts of the State of New York, to name an
arbitrator. Process in any such action or proceeding may
be served on any party anywhere in the world.
Indemnification
Provisions
11.2 Notice
to Indemnifying Party. If any party (the "Indemnitee")
receives notice of any claim or the commencement of any action or proceeding
with respect to which the other party (or parties) is obligated to provide
indemnification (the "Indemnifying
Party") pursuant to Section 3.3 or Section 5.3 hereof,
the Indemnitee shall give the Indemnifying Party written notice thereof within a
reasonable period of time following the Indemnitee’s receipt of such
notice. Such notice shall describe the claim in reasonable detail and
shall indicate the amount (estimated if necessary) of the losses that have been
or may be sustained by the Indemnitee. The Indemnifying Party may,
subject to the other provisions of this Section 11.2,
compromise or defend, at such Indemnifying Party's own expense and by such
Indemnifying Party's own counsel, any such matter involving the asserted
liability of the Indemnitee in respect of a third-party claim. If the
Indemnifying Party elects to compromise or defend such asserted liability, it
shall within thirty (30) days (or sooner, if the nature of the asserted
liability so requires) notify the Indemnitee of its intent to do so, and the
Indemnitee, shall reasonably cooperate, at the request and reasonable expense of
the Indemnifying Party, in the compromise of, or defense against, such asserted
liability. The Indemnifying Party will not be released from any
obligation to indemnify the Indemnitee hereunder with respect to a claim without
the prior written consent of the Indemnitee, unless the Indemnifying Party
delivers to the Indemnitee a duly executed agreement settling or compromising
such claim with no monetary liability to or injunctive relief against the
Indemnitee and a complete release of the Indemnitee with respect
thereto. The Indemnifying Party shall have the right to conduct and
control the defense of any third-party claim made for which it has been provided
notice hereunder. All costs and fees incurred with respect to any
such claim will be borne by the Indemnifying Party. The Indemnitee
will have the right to participate, but not control, at its own expense, the
defense or settlement of any such claim; provided, that if the Indemnitee and
the Indemnifying Party shall have conflicting claims or defenses, the
Indemnifying Party shall not have control of such conflicting claims or defenses
and the Indemnitee shall be entitled to appoint a separate counsel for such
claims and defenses at the cost and expense of the Indemnifying
Party. If the Indemnifying Party chooses to defend any claim,
the Indemnitee shall make available to the Indemnifying Party any books, records
or other documents within its control that are reasonably required for such
defense.
21
Notice
11.3 Any
notice required or permitted to be given by any party will be deemed to be given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid certified or registered mail,
or Facsimile. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by Facsimile shall be deemed to have been received on
the actual date of delivery.
Addresses
for Service
11.4 The
address for service of notice of each of the parties hereto is as
follows:
|
(a)
|
Wolfe
Creek or the Acquirer:
|
Wolf
Creek Mining, Inc.
15868 SW
Kimball Ave.
Lake
Oswego, OR97035.
Attn: Kristen
Paul, President
Phone: (503)
344-6213
Fax:
(503) 974-9692
With a
copy to:
Robert
Weaver, Esq.
721 Devon
Court
Sandiego,
CA 92109
Phone:
(858) 488-4433
|
(b)
|
Green
EnviroTech:
|
Green
EnviroTech Corp.
114 S
Main Street, Suite 201
Fond Du
Lac, WI
Phone:
(209) 881-3523
Facsimile:
(209) 881-3529
With a
copy to:
Sichenzia
Ross Friedman Ference LLP
61
Broadway
New York,
New York 10006
Attn: Andrea
Cataneo, Esq.
Phone: (212)
930-9700
Telecopier: (212)
930-9725
Change
of Address
11.5 Any
party may, by notice to the other parties change its address for notice to some
other address in North America and will so change its address for notice
whenever the existing address or notice ceases to be adequate for delivery by
hand. A post office box may not be used as an address for service.
Further
Assurances
11.6 Each
of the parties will execute and deliver such further and other documents and do
and perform such further and other acts as any other party may reasonably
require to carry out and give effect to the terms and intention of this
Agreement.
22
Time
of the Essence
11.7 Time
is expressly declared to be the essence of this Agreement.
Entire
Agreement
11.8 The
provisions contained herein constitute the entire agreement among Green
EnviroTech , the Acquirer and Wolfe Creek, respecting the subject matter hereof
and supersede all previous communications, representations and agreements,
whether verbal or written, among Green EnviroTech, the Acquirer and Wolfe Creek
with respect to the subject matter hereof.
Enurement
11.9 This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
11.10 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Expenses
11.11
Each party agrees to pay, without right of reimbursement from any other party
and regardless of whether or not the transaction is consummated, the costs
incurred by it in connection with this transaction, including legal fees and
other costs incidental to the negotiation of the terms of the transaction and
the preparation of related documentation; notwithstanding anything to the
contrary herein.
Counterparts
11.12 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies of
this Agreement by Facsimile will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable
Law
11.13
This Agreement and all issues arising out of or relating to this Agreement will
be governed by and construed solely and exclusively under the laws of
the State of New York as applied to agreements among New York residents and
entered into and to be performed entirely within New York. .
Termination
11.14 This
Agreement may only be terminated at any time prior to the Closing
Date:
(a) upon
mutual written consent authorized by the Board of Directors of Wolfe Creek and
Green EnviroTech; or
(b) by
either Wolf Creek or Green EnviroTech if the Closing shall not have been
consummated by the close of business on November 31, 2009.
[Remainder
of page intentionally left blank.]
23
IN WITNESS WHEREOF the parties
have executed this Agreement effective as of the day and year first above
written.
| WOLFE CREEK MINING, INC. | |
|
|
|
|
/s/
Kristen Paul
|
|
|
Name:
Kristen Paul
|
|
| Title: President | |
| GREEN ENVIROTECH ACQUISITON CORP. | |
|
/s/
Kristen Paul
|
|
|
Name:
Kristen Paul
|
|
| Title: President | |
| GREEN ENVIROTECH CORP. | |
|
/s/
Gary DeLaurentiis
|
|
|
Name:
Gary DeLaurentiis
|
|
| Title: President |
24