Date of Report (Date of earliest event reported)
June 17, 2013
|
PACIFIC GREEN TECHNOLOGIES INC.
|
(Exact name of registrant as specified in its charter)
|
Delaware
|
000-54756
|
n/a
|
||
(State or other jurisdiction of incorporation)
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
5205 Prospect Road, Suite 135-226, San Jose, CA
|
95129
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Registrant’s telephone number, including area code
(408) 538-3373
|
N/A
|
(Former name or former address, if changed since last report.)
|
Item 1.01
|
Entry into a Material Definitive Agreement
|
Item 2.01
|
Completion of Acquisition or Disposition of Assets
|
Item 3.02
|
Unregistered Sales of Equity Securities
|
1.
|
the representations and warranties of the Shareholders and our company set forth in the Agreement remain true, correct and complete in all respects as at the closing;
|
2.
|
all of the covenants and obligations that the respective parties are required to perform or to comply with pursuant to the Agreement at or prior to the closing must have been performed and complied with in all material respects;
|
3.
|
the Shareholders and our company having received duly executed copies of all third party consents and approvals contemplated by the Agreement, if any; and
|
4.
|
the Shareholders and our company having each been reasonably satisfied with their respective due diligence investigations of the other party that is reasonable and customary in transactions of this kind.
|
Item 9.01
|
Financial Statements and Exhibits.
|
10.1
|
Form of Share Exchange Agreement between Pacific Green Technologies Inc. and certain shareholders of EnviroTechnologies, Inc.
|
PACIFIC GREEN TECHNOLOGIES INC.
|
||
/s/ Jordan Starkman
|
||
Jordan Starkman
|
||
President, Treasurer, Secretary and
Director
|
||
Date:
|
June 17, 2013
|
A.
|
The Selling Shareholders are the registered and beneficial owners of certain issued and outstanding shares in the capital of EnviroTechnologies, Inc. (“Enviro”);
|
B.
|
PGT has agreed to issue common shares in the capital of PGT as of the Closing Date, as defined herein, to the Selling Shareholders as consideration for the purchase by PGT of the issued and outstanding common shares of Enviro held by the Selling Shareholders; and
|
C.
|
Upon the terms and subject to the conditions set forth in this Agreement, the Selling Shareholders have agreed to sell all of the issued and outstanding common shares of Enviro held by the Selling Shareholders to PGT in exchange for common shares of PGT.
|
1.
|
DEFINITIONS
|
1.1
|
Definitions
|
|
(a)
|
“
Agreement
” shall mean this Agreement, and all the exhibits, schedules and other documents attached to or referred to in this Agreement, and all amendments and supplements, if any, to this Agreement;
|
|
(b)
|
“
Closing
” shall mean the completion of the Transaction, in accordance with Section 6 hereof, at which the Closing Documents shall be exchanged by the parties, except for those documents or other items specifically required to be exchanged at a later time;
|
|
(c)
|
“
Closing Date
” shall mean a date mutually agreed upon by the parties hereto in writing and in accordance with Section 9.6 following the satisfaction or waiver by PGT and Enviro of the conditions precedent set out in Sections 5.1 and 5.2 respectively;
|
|
(d)
|
“
Closing Documents
” shall mean the papers, instruments and documents required to be executed and delivered at the Closing pursuant to this Agreement;
|
|
(e)
|
“
Exchange Act
” shall mean the United States Securities Exchange Act of 1934, as amended;
|
|
(f)
|
“
GAAP
” shall mean United States generally accepted accounting principles applied in a manner consistent with prior periods;
|
|
(g)
|
“
Liabilities
” shall include any direct or indirect indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation or responsibility, fixed or unfixed, known or unknown, asserted choate or inchoate, liquidated or unliquidated, secured or unsecured;
|
|
(h)
|
“
Enviro Shares
” shall mean the certain common shares of Enviro held by the Selling Shareholders, consisting of the issued and outstanding common shares of Enviro beneficially held, either directly or indirectly, by the Selling Shareholders;
|
|
(i)
|
“
PGT Shares
” shall mean the fully paid and non-assessable common shares of PGT, to be issued to the Selling Shareholders by PGT on the Closing Date;
|
|
(j)
|
“
SEC
” shall mean the Securities and Exchange Commission;
|
|
(k)
|
“
Securities Act
” shall mean the United States Securities Act of 1933, as amended;
|
|
(l)
|
“
Taxes
” shall include international, federal, state, provincial and local income taxes, capital gains tax, value-added taxes, franchise, personal property and real property taxes, levies, assessments, tariffs, duties (including any customs duty), business license or other fees, sales, use and any other taxes relating to the assets of the designated party or the business of the designated party for all periods up to and including the Closing Date, together with any related charge or amount, including interest, fines, penalties and additions to tax, if any, arising out of tax assessments; and
|
|
(m)
|
“
Transaction
” shall mean the purchase of the Enviro Shares by PGT from the Selling Shareholders in consideration for the issuance of the PGT Shares.
|
1.2
|
Schedules
|
Schedule 1
|
–
|
Selling Shareholders
|
Schedule 1A
|
–
|
Execution Page of Selling Shareholders
|
Schedule 2A
|
–
|
Certificate of Non-U.S. Shareholder
|
Schedule 2B
|
–
|
Certificate of U.S Shareholder
|
1.3
|
Currency
|
2.
|
THE OFFER, PURCHASE AND SALE OF SHARES
|
2.1
|
Offer, Purchase and Sale of Shares
|
2.2
|
Consideration
|
2.3
|
Share Exchange Procedure
|
|
(a)
|
if the Selling Shareholder is not resident in the United States, a Certificate of Non-U.S. Shareholder (the “
Regulation S Certificate
”), a copy of which is set out in Schedule 2A; and
|
|
(b)
|
if the Selling Shareholder is resident in the United States, a Certificate of U.S. Shareholder (the “
Rule 506 Certificate
”), a copy of which is set out in Schedule 2B.
|
2.4
|
Fractional Shares
|
2.5
|
Closing Date
|
2.6
|
Restricted Shares
|
2.7
|
Exemptions
|
3.
|
REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS
|
3.1
|
Title and Authority of Selling Shareholders.
|
4.
|
REPRESENTATIONS AND WARRANTIES OF PGT
|
4.1
|
Organization and Good Standing
|
4.2
|
Authority
|
|
(a)
|
as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally;
|
|
(b)
|
as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies; and
|
|
(c)
|
as limited by public policy.
|
4.3
|
Capitalization of PGT
|
4.4
|
Non-Contravention
|
|
(a)
|
conflict with, result in a violation of, cause a default under (with or without notice, lapse of time or both) or give rise to a right of termination, amendment, cancellation or acceleration of any obligation contained in or the loss of any material benefit under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the material properties or assets of PGT under any term, condition or provision of any loan or credit agreement, note, debenture, bond, mortgage, indenture, lease or other agreement, instrument, permit, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to PGT or any of its material property or assets;
|
|
(b)
|
violate any provision of the applicable incorporation or charter documents of PGT; or
|
|
(c)
|
violate any order, writ, injunction, decree, statute, rule, or regulation of any court or governmental or regulatory authority applicable to PGT or any of its material property or assets.
|
4.5
|
Validity of PGT Common Stock Issuable upon the Transaction
|
4.6
|
Compliance
|
|
(a)
|
To the best knowledge of PGT, PGT is in compliance with, is not in default or violation in any material respect under, and has not been charged with or received any notice at any time of any material violation of any statute, law, ordinance, regulation, rule, decree or other applicable regulation to the business or operations of PGT;
|
|
(b)
|
To the best knowledge of PGT, PGT is not subject to any judgment, order or decree entered in any lawsuit or proceeding applicable to its business and operations that would constitute a PGT Material Adverse Effect;
|
|
(c)
|
PGT has duly filed all reports and returns required to be filed by it with governmental authorities and has obtained all governmental permits and other governmental consents, except as may be required after the execution of this Agreement. All of such permits and consents are in full force and effect, and no proceedings for the suspension or cancellation of any of them, and no investigation relating to any of them, is pending or to the best knowledge of PGT, threatened, and none of them will be affected in a material adverse manner by the consummation of the Transaction; and
|
|
(d)
|
PGT has operated in material compliance with all laws, rules, statutes, ordinances, orders and regulations applicable to its business. PGT has not received any notice of any violation thereof, nor is PGT aware of any valid basis therefore.
|
4.7
|
Filings, Consents and Approvals
|
4.8
|
SEC Filings
|
4.9
|
Listing and Maintenance Requirements
|
5.
|
CLOSING CONDITIONS
|
5.1
|
Conditions Precedent to Closing by PGT
|
|
(a)
|
Representations and Warranties
|
|
(b)
|
Performance
|
|
(c)
|
No Action
|
|
(i)
|
prevent the consummation of any of the transactions contemplated by this Agreement; or
|
|
(ii)
|
cause the Transaction to be rescinded following consummation.
|
|
(d)
|
Outstanding Shares
|
|
(e)
|
Due Diligence Generally
|
|
(i)
|
materials, documents and information in the possession and control of Enviro and the Selling Shareholders which are reasonably germane to the Transaction;
|
|
(ii)
|
a physical inspection of the assets of Enviro by PGT or its representatives; and
|
|
(iii)
|
title to the material assets of Enviro.
|
|
(f)
|
Compliance with Securities Laws
|
5.2
|
Conditions Precedent to Closing by the Selling Shareholders
|
|
(a)
|
Representations and Warranties
|
|
(b)
|
Performance
|
|
(c)
|
Transaction Documents
|
|
(d)
|
No Action
|
|
(i)
|
prevent the consummation of any of the transactions contemplated by this Agreement; or
|
|
(ii)
|
cause the Transaction to be rescinded following consummation.
|
|
(e)
|
Outstanding Shares
|
|
(f)
|
Public Market
|
|
(g)
|
Due Diligence Generally
|
6.
|
CLOSING
|
6.1
|
Closing
|
6.2
|
Closing Deliveries of Enviro and the Selling Shareholders
|
|
(a)
|
if any of the Selling Shareholders appoint any person, by power of attorney or equivalent, to execute this Agreement or any other agreement, document, instrument or certificate contemplated by this agreement, on behalf of the Selling Shareholder, a valid and binding power of attorney or equivalent from such Selling Shareholder;
|
|
(b)
|
share certificates representing the Enviro Shares as required by Section 2.3 of this Agreement;
|
|
(c)
|
certificates and other documents required by Sections 2.3 and 5.1 of this Agreement;
|
|
(d)
|
any other necessary documents, each duly executed by Enviro, as required to give effect to the Transaction;
|
6.3
|
Closing Deliveries of PGT
|
|
(a)
|
copies of all resolutions and/or consent actions adopted by or on behalf of the board of directors of PGT evidencing approval of this Agreement and the Transaction;
|
|
(b)
|
all confirmations and other documents required by Section 5.2 of this Agreement;
|
6.4
|
Additional Post Closing Delivery of PGT
|
7.
|
TERMINATION
|
7.1
|
Termination
|
|
(a)
|
mutual agreement of PGT and a Selling Shareholder;
|
|
(b)
|
PGT, if there has been a material breach by a Selling Shareholder or any of the Selling Shareholders of any material representation, warranty, covenant or agreement set forth in this Agreement on the part of a Selling Shareholder or the Selling Shareholders that is not cured, to the reasonable satisfaction of PGT, within ten business days after notice of such breach is given by PGT (except that no cure period will be provided for a breach by a Selling Shareholder or the Selling Shareholders that by its nature cannot be cured);
|
|
(c)
|
A Selling Shareholder, if there has been a material breach by PGT of any material representation, warranty, covenant or agreement set forth in this Agreement on the part of PGT that is not cured by the breaching party, to the reasonable satisfaction of a Selling Shareholder, within ten business days after notice of such breach is given by a Selling Shareholder (except that no cure period will be provided for a breach by PGT that by its nature cannot be cured);
|
|
(d)
|
PGT or a Selling Shareholder if any permanent injunction or other order of a governmental entity of competent authority preventing the consummation of the Transaction contemplated by this Agreement has become final and non-appealable.
|
7.2
|
Effect of Termination
|
8.
|
INDEMNIFICATION, REMEDIES, SURVIVAL
|
8.1
|
Certain Definitions
|
8.2
|
Agreement of the Selling Shareholders to Indemnify
|
|
(a)
|
any breach by the Selling Shareholders of
Section 2.2 of this Agreement; or
|
|
(b)
|
any misstatement, misrepresentation or breach of the representations and warranties made by the Selling Shareholders contained in or made pursuant to the Regulation S Certificate, Rule 506 Certificate or the Questionnaire executed by each Selling Shareholder as part of the share exchange procedure detailed in Section 2.3 of this Agreement.
|
8.3
|
Agreement of PGT to Indemnify
|
|
(a)
|
the breach by PGT of any representation or warranty of PGT contained in or made pursuant to this Agreement, any PGT Document or any certificate or other instrument delivered pursuant to this Agreement; or
|
|
(b)
|
the breach or partial breach by PGT of any covenant or agreement of PGT made in or pursuant to this Agreement, any PGT Document or any certificate or other instrument delivered pursuant to this Agreement.
|
9.
|
MISCELLANEOUS PROVISIONS
|
9.1
|
Effectiveness of Representations; Survival
|
9.2
|
Further Assurances
|
9.3
|
Amendment
|
9.4
|
Expenses
|
9.5
|
Entire Agreement
|
9.6
|
Notices
|
|
(a)
|
in the case of personal delivery, on the date of such delivery;
|
|
(b)
|
in the case of a fax, when the party sending such fax has received electronic confirmation of its delivery;
|
|
(c)
|
in the case of delivery by internationally-recognized express courier, on the business day following dispatch; and
|
|
(d)
|
in the case of mailing, on the fifth business day following mailing.
|
9.7
|
Independent Legal Advice.
|
|
(a)
|
this Agreement was prepared by counsel for PGT;
|
|
(b)
|
counsel received instructions from PGT and does not represent the Selling Shareholder;
|
|
(c)
|
the Selling Shareholder has been requested to obtain his own independent legal advice on this Agreement prior to signing this Agreement;
|
|
(d)
|
the Selling Shareholder has been given adequate time to obtain independent legal advice;
|
|
(e)
|
by signing this Agreement, the Selling Shareholder confirms that he fully understands this Agreement; and
|
|
(f)
|
by signing this Agreement without first obtaining independent legal advice, the Selling Shareholder waives his right to obtain independent legal advice.
|
9.8
|
Headings
|
9.9
|
Benefits
|
9.10
|
Assignment
|
9.11
|
Governing Law
|
9.12
|
Construction
|
9.13
|
Gender
|
9.14
|
Business Days
|
9.15
|
Counterparts
|
9.16
|
Fax Execution
|
9.17
|
Schedules and Exhibits
|
Per:
|
||
Authorized Signatory |
Name:
|
|||
Title: |
Ref
No.
|
Shareholder’s Name
|
Address
|
Number of
Enviro Shares
Held before
Closing
|
Total Number of
PGT Shares
to be issued by
PGT on Closing
|
(Name of Subscriber – Please type or print)
|
|
Per:
|
|
(Signature of Authorized Signatory)
|
|
(Name of Authorized Signatory)
|
|
(Office of Authorized Signatory)
|
|
(Address of Subscriber)
|
|
(City, State or Province, Postal Code of Subscriber)
|
|
(Country of Subscriber)
|
|
(Telephone number of Subscriber)
|
|
|
(a)
|
is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the undersigned is resident (the “International Jurisdiction”) which would apply to the acquisition of the PGT Shares;
|
|
(b)
|
the undersigned is acquiring the PGT Shares pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the undersigned is permitted to acquire the PGT Shares under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions;
|
|
(c)
|
the applicable securities laws of the authorities in the International Jurisdiction do not require PGT to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the PGT Shares; and
|
|
(d)
|
the acquisition of the PGT Shares by the undersigned does not trigger:
|
|
(i)
|
any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
|
|
(ii)
|
any continuous disclosure reporting obligation of PGT in the International Jurisdiction; and
|
|
(a)
|
that any person will resell or repurchase any of the PGT Shares;
|
|
(b)
|
that any person will refund the purchase price of any of the PGT Shares;
|
|
(c)
|
as to the future price or value of any of the PGT Shares; or
|
|
(d)
|
that any of the PGT Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the PGT Shares on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of PGT on the OTCQB;
|
|
Date:_________________________________, 2012
|
|||
Signature
|
||||
Print Name | ||||
Title (if applicable) | ||||
Address | ||||
_________
|
Category 1
|
An organization described in Section 501(c)(3) of the United States Internal Revenue Code, a corporation, a Massachusetts or similar business trust or partnership, not formed for the specific purpose of acquiring the Shares, with total assets in excess of US $5,000,000.
|
_________
|
Category 2
|
A natural person whose individual net worth, or joint net worth with that person's spouse, on the date of purchase exceeds US $1,000,000, excluding the value of such person’s primary residence.
|
_________
|
Category 3
|
A natural person who had an individual income in excess of US $200,000 in each of the two most recent years or joint income with that person's spouse in excess of US $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year.
|
_________
|
Category 4
|
A "bank" as defined under Section (3)(a)(2) of the 1933 Act or savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act acting in its individual or fiduciary capacity; a broker dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934
(United States); an insurance company as defined in Section 2(13) of the 1933 Act; an investment company registered under the
Investment Company Act of 1940
(United States) or a business development company as defined in Section 2(a)(48) of such Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958
(United States); a plan with total assets in excess of $5,000,000 established and maintained by a state, a political subdivision thereof, or an agency or instrumentality of a state or a political subdivision thereof, for the benefit of its employees; an employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974
(United States) whose investment decisions are made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000, or, if a self-directed plan, whose investment decisions are made solely by persons that are accredited investors.
|
_________
|
Category 5
|
A private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940
(United States).
|
_________
|
Category 6
|
A director or executive officer of the Company.
|
_________
|
Category 7
|
A trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Shares, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the 1933 Act.
|
_________
|
Category 8
|
An entity in which all of the equity owners satisfy the requirements of one or more of the foregoing categories.
|
|
(a)
|
is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the undersigned is resident (the “International Jurisdiction”) which would apply to the acquisition of the PGT Shares;
|
|
(b)
|
the undersigned is acquiring the PGT Shares pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such is not applicable, the undersigned is permitted to acquire the PGT Shares under the applicable securities laws of the securities regulators in the International Jurisdiction without the need to rely on any exemptions;
|
|
(c)
|
the applicable securities laws of the authorities in the International Jurisdiction do not require PGT to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the PGT Shares; and
|
|
(d)
|
the acquisition of the PGT Shares by the undersigned does not trigger:
|
|
(i)
|
any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the International Jurisdiction; or
|
|
(ii)
|
any continuous disclosure reporting obligation of PGT in the International Jurisdiction; and
|
|
(a)
|
that any person will resell or repurchase any of the PGT Shares;
|
|
(b)
|
that any person will refund the purchase price of any of the PGT Shares;
|
|
(c)
|
as to the future price or value of any of the PGT Shares; or
|
|
(d)
|
that any of the PGT Shares will be listed and posted for trading on any stock exchange or automated dealer quotation system or that application has been made to list and post any of the PGT Shares on any stock exchange or automated dealer quotation system, except that currently certain market makers make market in the common shares of PGT on the OTCQB;
|
|
Date:_________________________________, 2012
|
|||
Signature
|
||||
Print Name | ||||
Title (if applicable) | ||||
Address | ||||
SSN/Tax ID |