EXHIBIT 10.2

 

ASSIGNMENT AND AGREEMENT

 

THIS ASSIGNMENT AND AGREEMENT (this "Agreement") is made as of February , 2012, by and among the parties identified on Schedule Al hereto (each a "Secured Creditor" and, collectively, "Secured Creditors"), GoGreen Power, Inc. a Delaware corporation ("GoGreen"), and, for purposes of Section 2 only, Alpha Capital Anstalt, as Collateral Agent under the Security Agreement (as such terms are defined below).

 

WHEREAS, Secured Creditors entered into that certain subscription agreements with EcoReady Corporation, a Florida corporation ("EcoReady"), pursuant to which, among other things, EcoReady issued to Secured Creditors secured convertible notes which are identified on Schedule A (the notes on Schedule are referred to as the "Secured Notes");

 

WHEREAS, in connection with the Secured Notes, Secured Creditors, certain guarantor parties and Alpha Capital Anstalt, as collateral agent (the "Collateral Agent"), entered into that certain Security Agreement dated as of December 23, 2010 (the "Security Agreement"), pursuant to which Secured Creditors obtained a validly perfected, fully enforceable security interest in the collateral referenced therein;

 

WHEREAS, EcoReady defaulted upon the Secured Notes and Secured Creditors, EcoReady, Collateral Agent and GoGreen intend to enter into an Agreement to Accept Collateral in Satisfaction of Obligations (the "Satisfaction Agreement"), pursuant to which EcoReady will transfer to GoGreen the assets identified on Schedule B (the "Collateral") in full satisfaction of EcoReady's obligations under a portion of the Secured Notes as described on Schedule A2 ("Foreclosing Secured Notes") notwithstanding that the amount of principal, interest and other amounts due under the Foreclosing Secured Notes greatly exceeds the value of the Collateral; and

 

WHEREAS, in connection with the Satisfaction Agreement, Secured Creditors wish to assign their respective interests in the Foreclosing Secured Notes, the Security Agreement as related to the Foreclosing Secured Notes and the Collateral to GOGREEN, as described herein.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:

 

1.         Assignment to GoGreen. Secured Creditors hereby contribute, convey, transfer and assign to GOGREEN, and GOGREEN hereby accepts, all of Secured Creditors' rights under the Foreclosing Secured Notes, the Security Agreement as related to the Foreclosing Secured Notes and the Collateral.

 

2.         Perfection; Collateral Agent. Secured Creditors hereby direct Collateral Agent, and Collateral Agent agrees, to make all filings and take all actions necessary or advisable to record and perfect the assignment described in Section 1 and to otherwise give effect to this Agreement. Collateral Agent (a) consents to the assignment described in Section 1 and (b) assigns to GoGreen all of the Collateral Agent's rights under the Security Agreement. Collateral Agent hereby acknowledges and agrees to the provisions of this Section 2 by signing below.

 

 

3.         Initial Equity Interests in GoGreen. In connection with the assignment described in Section 1, Secured Creditors shall be issued the following shares of GoGreen common stock:

 

Secured Creditor		Shares
Alpha Capital Anstalt		88
Chestnut Ridge Partners LP		86
Whalehaven Capital Funds, Ltd.		80
Mulkey II Limited Partnership		24
Richard G. David		12
Barbara Stone Irrevocable Trust		8
Philip W. David		8
Jayakumar & Purnima Patil		6
Austin Gleason		5
Donald Smith		5
Neurological Surgery Associates		5
Nunley Investments, LLC		5
Rising Star Investments, LLC		5
J. Truman Bidwell Jr.		4
Leonard Schiller		4
Martha Berkowicz		4
Rosamond Janis		2

  

4.         Effect of Termination of Satisfaction Agreement. If the Satisfaction Agreement is terminated pursuant to its terms, then this Agreement shall be terminated and be deemed to have no force or effect, in which case, without limiting the foregoing, (i) Secured Creditors shall retain their interests in the Foreclosing Secured Notes, the Security Agreement and the Collateral, (ii) the assignment described herein shall be deemed never to have occurred and (iii) Secured Creditors shall not be entitled to any equity interests in GoGreen as a result of the terms of this Agreement.

 

5.        Representations and Warranties of Secured Creditors. Each Secured Creditor hereby represents and warrants to each of the other Secured Creditors and to GoGreen as follows:

 

            5.1         Private Placement.

 

                          (a) Secured Creditor understands that the issuance of equity interests of GoGreen (the "Equity") is intended to be exempt from registration under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the "1933 Act") and (ii) there is no existing public or other market for the Equity and there can be no assurance that Secured Creditor will ever be able to sell or dispose of such Equity.

 

  

                          (b) The Equity to be acquired by Secured Creditor pursuant to this Agreement is being acquired for Secured Creditor's own account and without a view to the distribution of such Equity. Secured Creditor is an "accredited investor," as such term is defined in Regulation D under the 1933 Act. Secured Creditor is not a broker-dealer subject to Regulation T of the Federal Reserve Board.

 

                          (c) Secured Creditor has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Equity and is capable of bearing the economic risks of such investment, including a complete loss of its investment in the Equity.

 

                          (d) Secured Creditor has been given the opportunity to ask questions of, and receive answers from, the other Secured Creditors and GoGreen concerning the terms and conditions of the Equity and other related matters. Secured Creditor further represents and warrants to GoGreen that GoGreen has made available to Secured Creditor or its agents all documents and information relating to the Equity. In evaluating its investment in the Equity, Secured Creditor has not relied upon any representations or other information (whether oral or written) made by or on behalf of GoGreen.

 

            5.2         Authority., No Other Action. The execution, delivery and performance of this Agreement are within the powers of Secured Creditor (corporate or otherwise) and have been duly authorized on its part by all requisite action (corporate or otherwise). No action by or in respect of, or filing with, any governmental authority is required for the execution, delivery and performance of this Agreement by Secured Creditor. This Agreement has been duly executed and delivered by Secured Creditor and constitutes a legal, valid and binding agreement of Secured Creditor, enforceable against Secured Creditor in accordance with its terms.

 

6.        Indemnification. Each Secured Creditor shall indemnify and hold harmless each of the other Secured Creditors and GoGreen, and each of their respective affiliates, in respect of any and all debts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, diminutions in value of assets, losses and expenses (including amounts paid in settlement, court costs, costs of investigators, reasonable fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) incurred or suffered by each of the other Secured Creditors, GOGREEN or any of their respective affiliates resulting from, relating to, constituting or arising out of a breach of the representations and warranties made by such Secured Creditor in this Agreement.

 

7.        Miscellaneous.

 

           7.1         Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any party without the prior written consent of the other parties. A change in control of a party or a transfer of all or substantially all a party's assets shall constitute an assignment for such purposes. Without limiting the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

 

 

           7.2         This Agreement is governed by and is to be construed and enforced as though made and to be fully performed in the State of New York, without regard to conflicts of law rules. Any and all disputes are to be resolved in the courts of the state of New York located in New York County.

 

           7.3         This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed on behalf of each party and otherwise as expressly set forth herein.

 

           7.4         No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof Any agreement on the part of any party to any waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party.

 

           7.5         This Agreement shall not be construed so as to confer any right or benefit upon any person or entity other than the parties to this Agreement and their respective permitted successors and assigns.

 

           7.6         In case one or more of the provisions contained in this Agreement are for any reason held to be invalid, illegal or unenforceable in any respect under any law in any jurisdiction, the invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, which will be construed as if contained in this Agreement, and each illegal, invalid or unenforceable provision will be construed as broadly as may be possible so that the original intent of the parties is given effect to the greatest extent possible.

 

           7.7         This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

[Signature Page Follows.]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their respective names and by their duly authorized officers, as of the date first written above.

 

ALPHA CAPITAL ANSTALT		WHALEHAVEN CAPITAL FUND LTD
/s/ Konrad Ackermann		/s/ Vadim Mats
Name: Konrad Ackermann		Name: Vadim Mats
Title: Director		Title: CFO
CHESTNUT RIDGE PARTNERS LP		MULKEY II LIMITED PARTNERSHIP
/s/ Kenneth Holz		/s/ David A Mulkey
Name: Kenneth Holz		Name:  David A Mulkey
Title: CFO		Title General Partner
RICHARD G. DAVID		BARBARA STONE (Irrevocable Trust)
/s/ RICHARD G. DAVID		/s/ Joel Stone
PHILIP W. DAVID		JAYAKUMAR & PURNIMA PATIL
/s/ PHILIP W. DAVID		/s/ Jayakumar & Purnima Patil
AUSTIN GLEASON		DONALD SMITH
/s/ AUSTIN GLEASON		/s/ DONALD SMITH
NEUROLOGICAL SURGERY ASSOCIATES		NUNLEY INVESTMENTS, LLC
/s/ James Adametz		/s/ Pierce D Nunley
Name: James Adametz		Name: Pierce D Nunley
Title:		Title  Manager
J. TRUMAN BIDWELL, JR.		LEONARD SCHILLER
/s/ J. Truman Bidwell Jr.		/s/ Leonard Schiller
MARTA BERKOWICZ		ROSAMOND JANIS
/s/ Marta Berkowicz		/s/ Rosamond Janis
RISING STAR INVESTMENTS, LLC
/s/ Eubulus J. Kerr
Name: Eubulus J. Kerr
Title: Member

 

GOGREEN

  

GoGreen Power, Inc.
/s/ Mark Shefts
Name: Mark Shefts
Title: CEO
		/s/ Konrad Ackermann
		ALPHA CAPITAL ANSTALT

  

Agreed and Acknowledged

 

EcoReady Corporation
/s/ B. Rubizhevsky
By: Boris Rubizhevsky
Its: CEO

  

 

SCHEDULE Al

 

SECURED CREDITOR		NOTE PRINCIPAL				ISSUE DATE
Alpha Capital Anstalt ("Alpha")		$	219,600.00
Whalehaven Capital Fund, Ltd. ("Whalehaven")		$	215,600.00
Chestnut Ridge Partners LP ("Chestnut")		$	199,600.00
Mulkey II Limited Partnership		$	150,000.00
Richard G. David		$	75,000.00
J. Truman Bidwell Jr.		$	25,000.00
Leonard Schiller		$	25,000.00
Martha Berkowicz		$	25,000.00
Neurological Surgery Associates		$	30,000.00
Nunley Investments, LLC		$	30,000.00
Philip W. David		$	50,000.00
Rising Star Investments, LLC		$	30,000.00
Austin Gleason		$	30,000.00
Barbara Stone (Irrevocable Trust)		$	50,000.00
Donald Smith		$	30,000.00
Jayakumar & Purnima Patil		$	35,000.00
Rosamond Janis		$	15,000.00
Alpha		$	219,600.00
Chestnut		$	215,600.00
Whalehaven		$	199,600.00
Alpha		$	20,000.00
Whalehaven		$	20,000.00
Alpha		$	14,000.00
Chestnut		$	12,000.00
Whalehaven		$	12,000.00
TOTAL		$	1,947,600.00

 

 

SCHEDULE A2

 

SECURED CREDITOR		NOTE PRINCIPAL				ISSUE DATE
Alpha Capital Anstalt ("Alpha")		$	87,840.00
Whalehaven Capital Fund, Ltd. ("Whalehaven")		$	86,240.00
Chestnut Ridge Partners LP ("Chestnut")		$	79,840.00
Mulkey II Limited Partnership		$	60,000.00
Richard G. David		$	30,000.00
J. Truman Bidwell		$	10,000.00
Leonard Schiller		$	10,000.00
Martha Berkowicz		$	10,000.00
Neurological Surgery Associates		$	12,000.00
Nunley Investments		$	12,000.00
Philip W. David		$	20,000.00
Rising Star		$	12,000.00
Austine Gleason		$	12,000.00
Barbara Stone		$	20,000.00
Donald Smith		$	12,000.00
Jayakumar & Purnima Patil		$	14,000.00
Michel & Rosamond Janis		$	6,000.00
Alpha		$	87,840.00
Chestnut		$	86,240.00
Whalehaven		$	79,840.00
Alpha		$	8,000.00
Whalehaven		$	8,000.00
Alpha		$	5,600.00
Chestnut		$	4,800.00
Whalehaven		$	4,800.00
TOTAL		$	779,040.00

  

SCHEDULE B

 

I. The business related to the sale of GoGreenPowered batteries

 

2. Wordmark "GoGreenPower" Serial number 3710192

 

3. Customer List attached hereto as exhibit B

 

4. The inventory listed on exhibit C