EXHIBIT 10.3
PLAN AND AGREEMENT OF REORGANIZATION
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UNDER I.R.C. SS.368(a)(1)(C)
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GLOBAL RESOURCE CORPORATION
AND
CARBON RECOVERY CORPORATION
THIS PLAN AND AGREEMENT OF REORGANIZATION, dated this 26th day of July,
2006, made by and between:
GLOBAL RESOURCE CORPORATION,, a Nevada corporation having its principal
business office located at 000 Xxxxxxx Xxxx, Xxxxxxxxx XX 00000 (hereinafter
referred to as "Buyer");
AND
CARBON RECOVERY CORPORATION (hereinafter referred to as "Seller"), a
New Jersey corporation having its principal business office located at
Bloomfield Business Park, 000 Xxxxxxxxxx Xxxxx, Xxxx 0, Xxxx Xxxxxx, Xxx Xxxxxx
00000 (hereinafter "Seller"):
WITNESSETH THAT:
WHEREAS, Seller desires to transfer to Buyer at the Closing (as
hereinafter defined), and Buyer desires to acquire from Seller at the Closing,
substantially all of Seller's assets, as more fully described herein, upon and
subject to the terms and conditions contained in this Agreement; and
WHEREAS, it is intended by the parties that the transaction qualify as
a tax-free reorganization within the meaning of Section 368(a)(1)(C) of the
Internal Revenue Code of 1986, as amended (the "Code") and that for accounting
purposes it is intended that the transaction be treated as a "purchase";
NOW, THEREFORE, intending to be legally bound, and in consideration of the
foregoing recitals and the mutual promises and covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Buyer and Seller hereby agree as follows:
ARTICLE I
DEFINITIONS
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Definitions. In addition to the terms defined elsewhere in this
Agreement, when used in this Agreement the following capitalized terms shall
have the meanings indicated:
"Act of Bankruptcy" when used in reference to any Person, shall mean
the occurrence of any of the following with respect to such Person: (a) such
Person shall have made an assignment of all or substantially all of its assets
for the benefit of his or its creditors; (b) such Person shall have filed a
voluntary petition in bankruptcy; (c) such Person shall have been adjudicated
bankrupt or insolvent; (d) such Person shall have filed any petition or answer
seeking for himself or itself any reorganization, liquidation, dissolution or
similar relief, (e) such Person shall have sought or consented to, or acquiesced
in, the appointment of any trustee, receiver, or liquidator of such Person of
all or substantially all of the properties of such Person; or (f) sixty (60)
days shall have elapsed after the commencement of an action against such Person
seeking reorganization, arrangement liquidation, dissolution or similar relief
without such action having been dismissed.
"Affiliate" when used in reference to any Person, shall mean any Person
that, directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the Person in question.
"Applicable Law(s)" shall mean any applicable federal, state, local or
foreign law, ordinance, order, regulation, rule or requirement of any
governmental or quasi-governmental agency, instrumentality, board, commission,
bureau or other authority having jurisdiction.
"Assets" shall mean (i) all right, title and interest of Seller in and
to the assets, real property, personal property, equipment, intellectual
property, software and other property of Seller set forth on Exhibit 1 attached
hereto, (ii) all transferable net operating losses, capitalized expenses and
research and development costs of Seller which may benefit the Buyer, and (iii)
cash and/or cash equivalents in an amount equal to all cash on hand/on deposit,
less only an amount not to exceed $10,000 to be used to pay liabilities unpaid
as of Closing and not being assumed by the Buyer..
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"Material Adverse Effect" shall mean any material adverse change or any
development involving a prospective material adverse change in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of a Person, taken as a whole.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, unincorporated association, trust or other
legal entity.
"Tax Returns" shall mean all federal, state, local and foreign tax
returns and reports, including by way of illustration and not of limitation,
income tax returns, payroll tax returns, unemployment tax returns, sales and use
tax returns, wage tax returns, withholding tax returns and franchise tax
returns.
ARTICLE II
SALE AND TRANSFER OF ASSETS AND ASSUMPTION OF CERTAIN LIABILITES
2.1 Transfer of Assets. Except as otherwise herein expressly set forth,
Seller hereby agrees that at the Closing provided for in Section 4.1 hereof (the
"Closing"), Seller shall sell, assign, transfer, convey and deliver to Buyer all
of Seller's right, title and interest in and to the Assets. Seller represents
that the Assets, as set forth on Exhibit 1, are substantially all of the assets
of Seller.
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2.2 Excluded Assets. Seller and Buyer understand and agree that the
sale, assignment, transfer, conveyance and delivery specified in Section 2.1
hereof shall not include any assets, rights or property of Seller other than
those expressly included in the definition of Assets. Seller represents that any
assets not set forth on Exhibit 1 are immaterial and DI MINIMUS and that Buyer
is acquiring substantially all of the assets of Seller.
2.3 Assumed Obligations. Buyer agrees that at the Closing, Buyer shall
assume only those specific contracts, agreements, leases, covenants, obligations
and liabilities on the list attached hereto as Exhibit 2 (collectively, the
"Assumed Liabilities") which liabilities shall include the issuance of Common
Stock Purchase Warrants. As of the Closing Date, Seller, as soon as reasonably
practicable thereafter, will terminate any and all of Seller's other
(non-assumed) contracts, leases, licenses and agreements and Seller, shall
remain liable for any and all of its liabilities or encumbrances not
specifically assumed by Buyer pursuant to this Section 2.3, including but not
limited to:
(a) liens and encumbrances to which the Assets are subject, or would
have been subject to, immediately prior to Closing;
(b) any liability or obligation relating to taxes of Seller, including
any interest or penalties related thereto;
(c) any warranty or performance liability claims relating to the assets
which arose prior to the Closing; and
(d) any liability or obligation of the Seller, absolute or contingent,
known or unknown not expressly agreed to be assumed pursuant to this Agreement.
ARTICLE III
CONSIDERATION
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3.1 Assumption of Certain Liabilities, Stock Issuance and Common Stock
Purchase Warrants Issuance. In full and complete payment for the Assets, Buyer
agrees to (i) assume the Assumed Liabilities pursuant to Section 2.3 hereof,
which liabilities shall include the issuance of Common Stock Purchase Warrants,
(ii) issue to the Seller 50,000,000 post-split shares of Common Stock of the
Buyer, priced at $1.00 per post-split share, issued in the name of and paid to
Seller (the Common Stock is hereinafter referred to as the "Global Resource
Stock)", and (iii) issue to the Seller that number of Common Stock Purchase
Warrants, containing terms equivalent to those of Seller's Class "B", Class "D"
and Class "E" Common Stock Purchase Warrants, equal to the total number of
Seller's Classes "B", "D" and "E" Warrants issued and outstanding at Closing. It
is understood and agreed that to the extent that the "B", "D" and "E" warrants
are not exercised, within the provided exercise periods, by the registered
holders thereof, or their legal assignees, such warrants shall become null and
void and of no further effect.
3.2 INVESTMENT REPRESENTATIONS. Seller acknowledges, agrees and
represents that:
(a) It has been advised that none of the shares or Warrants of Buyer
being acquired hereunder have been registered under the Securities Act of 1933
(the "1933 Act").
(b) All of the securities of Buyer being acquired hereunder are being,
and will be, acquired and held for investment, not for resale or distribution to
the public and not for the purpose of effecting or causing to be effected a
public offering of such securities and, further, that none of such securities
will be sold, transferred, assigned or disposed of except to a liquidating trust
for the benefit of Seller's shareholders and Class "B", "D" and "E"
Warrantholders, in accordance with the 1933 Act and the Rules and Regulations of
the Securities and Exchange Commission promulgated thereunder.
(c) It has been advised and is aware of the fact, that by reason of the
foregoing investment representations and restrictions upon transfer: (i) the
shares of the Buyer's Common Stock and the Warrants must be held indefinitely
unless they are subsequently registered under the 1933 Act or an exemption from
such registration is available; (ii) if Rule 144 of the Rules and Regulations
promulgated by the SEC is applicable to any future routine sales of any such
securities, such sales can be made only in limited amounts in accordance with
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the terms and conditions of that Rule; (iii) in the case of securities to which
that Rule is not applicable, compliance with some applicable disclosure
exemption, if any be available, will be required; (iv) all of the certificates
for the shares of Buyer's Common Stock and the Warrant certificates will bear a
legend restricting transfer thereof; and (v) the Transfer Agent of Buyer's
Common Stock will be given "stop-transfer" instructions so as to prevent any
illegal transfer of such shares or warrants.
(d) It has relied only and exclusively upon its own investigation into
Buyer and its financial condition for purposes of deciding to enter into and
close this Agreement and to accept shares of Buyer's Common Stock and warrants
in exchange for its Assets. It has not relied upon any oral or written
representation made by Buyer or any of its officers or directors or
representatives of Buyer and that no representation, or statements shall survive
the Closing with the sole exception of the representations and warranties
contained in this Agreement.
(e) It has received the audited financial statements of the Buyer for
the periods ended March 31, 2005 and March 31, 2006, as well as the Buyer's
10-KSB for the fiscal year ended March 31, 2006 and has had full opportunity to
review and inspect all books and records of Buyer.
3.3 Liquidation of Seller; Liquidating Trust. Seller acknowledges
awareness that (i) following the transfer of the Assets it is required by the
Code to dissolve and in connection therewith to distribute the Global Resource
Stock to its shareholders, (ii) the Global Resource Stock has not been
registered with the Securities and Exchange Commission and cannot be distributed
without either an effective registration statement or an eligible exemption from
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such registration, and (iii) it must use a liquidating trust to hold the shares
of Global Resource Stock for the benefit of its shareholders, pending the
ability to make a legal distribution thereof. Seller agrees to establish such a
liquidating trust for the benefit of its shareholders and its Class "B", "D" and
"E" Warrantholders and to transfer the shares and warrants to such trust pending
compliance by Buyer with Securities and Exchange Commission requirements for
their distribution.
3.4 Piggy-back Registration Rights. If, during a period of twelve (12)
months following Closing, Buyer shall file a registration statement under the
Securities Act of 1933 with the Securities and Exchange Commission, it shall
give at least thirty (30) days prior notice of such filing to the trustees of
the liquidating trust. If the trustees so elect, and give written notice to
Buyer within five (5) business days after notice from Buyer, Buyer shall include
such shares of the Global Resource Stock (including those issuable upon the
exercise of warrants) in the registration statement as the trustees shall elect.
3.5 Demand Registration Rights. Unless the shares have been registered
pursuant to Section 3.4 during the initial twelve month period, at any time
thereafter, the trustees of the liquidating trust may serve written demand on
Buyer that the shares held by the trust and the shares issuable upon exercise of
the warrants held by the trust be registered. Buyer shall, upon receipt of such
a demand, in good faith, and with all deliberate speed, effect the filing of a
registration statement for such shares and shall prosecute such registration
statement to effectiveness.
ARTICLE IV
CLOSING AND CONDITIONS OF CLOSING
4.1 Closing. The Closing shall occur upon the later of (i) the close of
business on August 31, 2006 or (ii) as soon thereafter as practicable following
the satisfaction or waiver of all of the Conditions to Closing set forth in
Section 4.2 of this Agreement (the "Closing Date").
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4.2 Conditions to Closing. The obligations of Seller to sell the Assets
and Buyer to purchase the Assets are subject to the satisfaction of the
following conditions precedent at or prior to the Closing (unless waived in
writing by the Parties prior to Closing or by the act of Closing):
(a) Reverse Stock Split. Seller shall have effectuated a 1 for 10
reverse stock split of its Common Stock and shall have only 72,150 shares of its
Common Stock issued and outstanding at Closing, prior to the issuance of the
Global Resource Stock.
(b) Documents. Buyer shall have received each of the following items:
(i) This Agreement, duly executed by Seller;
(ii) Any amendment, consent or waiver from any Person necessary to
fully give binding effect to this Agreement, including but not limited to
consents to the assignment of contracts and leases, duly executed by Seller and
such Persons (the "Consents") (each party hereto acknowledges that this
condition is for the benefit of both Buyer and Seller;
(iii) A Xxxx of Sale duly executed by Seller;
(iv) Such certificates, documents of title and other instruments of
conveyance and transfer, if any, as shall be effective to vest in Buyer good and
marketable title in and to the Assets free and clear of all encumbrances; and
(v) An Officer's Certificate, duly executed by an officer of Seller.
(c) Documents. Seller shall have received each of the following items:
(i) This Agreement, duly executed by Buyer; (
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ii) An Assumption Agreement duly executed by Buyer;
(iii) An Officer's Certificate duly executed by an officer of Buyer;
(iv) The Global Resource Stock; and
(v) A new valuation of the license.
(d) Employees. Seller and Buyer understand and agree that Seller shall
terminate the employment of its employees, so that Buyer shall not be assuming
any liability with respect thereto. Before or promptly upon the execution of
this Agreement, Buyer may, at its option, offer employment to any of the
terminated employees and shall have sole responsibility for the negotiation of
employment agreements with such employees.
(d) Approval. Seller shall have received the approval of both its board
of directors and its shareholders authorizing the consummation of the
transactions contemplated by this Agreement.
(d) Material Adverse Effect. Prior to the Closing Date, neither party
shall have experienced a Material Adverse Effect relating to (i) the Assets or
(ii) the ability of Seller or Buyer to perform their respective obligations
under this Agreement.
(e) Litigation. On the Closing Date, there shall be no lawsuits pending
against either party hereto seeking to enjoin, prohibit, restrain or otherwise
prevent the transaction contemplated by this Agreement.
(f) Other Documents. The provision and/or execution of such other
documents relating to the transactions contemplated by this Agreement as Buyer
may reasonably request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller represents and warrants to Buyer as of the date hereof (which
representations and warranties shall survive the execution and delivery of this
Agreement and the transfer of the Assets), as set forth below:
5.1 Qualification. Seller represents that it is duly qualified to
conduct business as it is currently being conducted and is in good standing as a
foreign corporation in all jurisdictions in which the nature of its business or
location of its owned and leased property and assets requires such
qualification, except where failure to be so qualified would not have a Material
Adverse Effect.
5.2 Litigation. There are no outstanding orders, judgments, writs,
injunctions. or decrees of any court, Government Authority or arbitration or
mediation panel or tribunal against or affecting the Assets.
5.3 Non-Contravention. Seller is not in breach of, default under, or in
violation of any Applicable Law, decree or order that may cause a Material
Adverse Effect relating to the Assets and Seller is not in breach of, default
under, or in violation of any deed, lease, loan agreement, commitment, bond,
note, deed of trust, restrictive covenant, license, indenture, contract or other
agreement, instrument or obligation to which it is a party or by which it is
bound or to which any of its respective assets is subject that may cause a
Material Adverse Effect on the Assets.
5.4 Title. Seller has good, complete, indefeasible and marketable title
to, and ownership of, all of the Assets, free and clear of all liens, defects,
claims, security interests and encumbrances.
5.5 Taxes. Seller has filed all Tax Returns that are required to be
filed and has duly paid or fully reserved for all taxes or installments thereof
(including any interest or penalties) as and when due or which have or may
become due pursuant to said returns or pursuant to any assessment received by
Seller.
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5.6 Subsidiaries. Seller has no subsidiaries, affiliates, partnerships
nor any other commonly controlled or related entities.
5.7 Intellectual Property. Seller owns, or possesses adequate rights to
use, all intellectual property (including but not limited to any patents,
trademarks, and copyrights) necessary for the conduct of its business and
neither Seller nor any of its officers have received any notice of conflict
with, or infringement of, the asserted rights of others with respect to any such
intellectual property, and neither Seller nor any of its officers knows of any
reasonable basis therefor.
5.8 Legal Compliance. To its knowledge, Seller: (i) is not in violation
of any Applicable Law that would apply to it or to its business, the violation
of which would cause a Material Adverse Effect on the Assets; (ii) is not in
violation of any applicable environmental, securities or employee benefits law,
which violation would cause a Material Adverse Effect on the Assets; and (iii)
neither Seller nor, to the knowledge of Seller, any of Seller's agents,
contractors or employees has been notified of any action, suit, proceeding or
investigation which calls into question compliance by Seller.
5.9 Licenses. Simultaneously with the Closing, Seller shall have
acquired good title or all necessary rights to all of the licenses, permits,
approval and authorizations needed to transfer the Assets to Seller in
compliance with all Applicable Laws.
5.10 Undisclosed Liabilities. The Seller does not have any liabilities
(whether known or unknown, whether absolute or contingent whether liquidated or
unliquidated and whether due or to become due), except for (a) liabilities that
will be accrued for or reserved against in the March 31, 2006 balance sheet, and
(b) contractual or statutory liabilities incurred in the ordinary course of
business which are not required to be reflected on a balance sheet. There are no
outstanding loans due or deferred compensation from Seller to any employee of
Seller.
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5.11 Assets. The Assets are in good operating condition (subject to
normal wear and tear) and are suitable for the purposes for which they are used
in Seller's business.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and .warrants to Seller as of the date hereof (which
representations and warranties shall survive the execution and delivery of this
Agreement and the transfer of the Assets) as set forth below:
6.1 Qualification. Buyer represents that it is duly qualified to
conduct business as it is currently being conducted and is in good standing as a
foreign corporation in all jurisdictions in which the nature of its business or
location of its owned and leased property and assets requires such qualification
except where failure to be so qualified would not have a Material Adverse
Effect.
6.2 Litigation. There are no outstanding orders, judgments, writs,
injunctions or decrees of any court, Government Authority or arbitration or
mediation panel or tribunal against or involving Buyer likely to have a Material
Adverse Effect.
6.3 Non-Contravention. Buyer is not in breach of, default under, or in
violation of any Applicable Law, decree or order that may cause a Material
Adverse Effect, and Buyer is not in breach of, default under, or in violation of
any deed, lease, loan agreement, commitment, bond, note, deed of trust,
restrictive covenant, license, indenture, contract or other agreement,
instrument or obligation to which it is a party or by which it is bound or to
which any of its respective assets is subject that may cause a Material Adverse
Effect.
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6.4 Taxes. Buyer has filed all Tax Returns that are required to be
filed and has duly paid or fully reserved for all taxes or installments thereof
(including any interest or penalties) as and when due or which have or may
become due pursuant to said returns or pursuant to any assessment received by
Buyer.
6.5 Legal Compliance. To its knowledge, (i) Buyer is not in violation
of any Applicable Law that would apply to it or to its business, the violation
of which would cause a Material Adverse Effect, (ii) Buyer is not in violation
of any applicable environmental, securities or employee benefits law, which
violation would cause a Material Adverse Effect, and (iii) neither Buyer nor, to
the knowledge of Buyer, any of Buyer's agents, contractors or employees has been
notified of any action, suit, proceeding or investigation which calls into
question compliance by Buyer.
6.6 Shares and Corporate Documents. All of the Global Resource Stock to
be issued hereunder have been duly authorized and when issued will be valid and
legally issued shares of the Common Stock, fully paid and nonassessable, free
and clear of all liens or encumbrances, and not in violation of any preemptive
or similar rights or any securities laws. Prior to the Effective Date, Buyer has
delivered to Seller a true, correct, and complete copy of the current
certificate of incorporation and bylaws of Buyer.
6.7 Undisclosed Liabilities. The Buyer does not have any liabilities
(whether known or unknown, whether absolute or contingent whether liquidated or
unliquidated and whether due or to become due), except for (a) liabilities that
will be accrued for or reserved against in the March 31, 2006 balance sheet, and
(b) contractual or statutory liabilities incurred in the ordinary course of
business which are not required to be reflected on a balance sheet. Buyer's
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balance sheet and the related income statement were prepared in accordance with
generally accepted accounting principals and fairly present the assets,
liabilities, financial condition and results of operations of Buyer as of the
date indicated and for the period referred to therein. Except as disclosed in
writing to Buyer, there have been no events, changes or effects with respect to
Buyer or its subsidiaries that, individually or in the aggregate, have had or
reasonably would be expected to have had a Material Adverse Effect.
ARTICLE VIII
MUTUAL REPRESENTATIONS AND WARRANTIES
Each party hereto represents and warrants to the other party as of the
date hereof (which representations and warranties shall survive the execution
and delivery of this Agreement and the transfer of the Assets) as set forth
below:
7.1 Organization; Good-Standing.
(a) Seller is a corporation duly formed, validly organized and in good
standing in the State of New Jersey.
(b) Buyer is a corporation duly formed, validly organized and in good
standing, in the State of Nevada.
7.2 No Untrue Statements or Material Omissions. Each party hereto
represents to the. other party hereto, on its own respective behalf, that no
statement in writing furnished by such party to the other party in connection
with the transactions contemplated herein contains any untrue statement of
material fact or omits to state a material fact necessary to make the statement
not misleading in any material respects.
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7.3 No Default. Each party hereto represents to the other party, on its
own respective behalf, that neither the execution and delivery of this Agreement
nor the performance by such party of its respective obligations hereunder will
cause any such breach, default or violation or will require the consent or
approval of any court or governmental authority, except as expressly
contemplated by the terms of this Agreement.
7.4 Power and Authority. Each party hereto represents to the other
party, on its own respective behalf, that (i) it has full power and authority to
enter into this Agreement any other related documents, to incur the obligations
as contemplated hereby, and to carry out the provisions of this Agreement; and
(ii) it has taken all action necessary for the execution and delivery of this
Agreement and each of the other related documents and for the performance of
each of its obligations hereunder, and thereunder, as evidenced by corporate
resolution(s) or other authorization.
7.5 Enforceability. Upon execution and delivery by each of the parties
hereto, this Agreement and any other related document shall be the legal, valid
and binding obligations of each party and shall be enforceable against each
party in accordance with their respective terms.
ARTICLE VIII
TERMINATION OF AGREEMENT
This Agreement may be terminated at any time prior to the Closing:
(a) By written agreement of Buyer and Seller.
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(b) By Buyer, upon ten (10) days' prior written notice to Seller if (i)
there has been a material violation or breach by Seller of any of the
agreements, representations or warranties contained in this Agreement, or (ii)
if any of the conditions set forth in Section 4.2 have not been materially
satisfied by the Closing, and either (i) or (ii) have not been waived in writing
by Buyer or cured within such ten-day period; or (iii) if, in the opinion of the
Buyer, information obtained by it during due diligence on Seller subsequent to
this Agreement discloses any matter which Buyer believes warrants termination.
(c) By Seller, upon ten (10) days' prior written notice to Buyer if (i)
there has been a material violation or breach by Buyer of any of the agreements,
representations or warranties contained in this Agreement, or (ii) if any of the
conditions set forth in Section 4.2 have not been materially satisfied by the
Closing, and either (i) or (ii) have not been waived in writing by Seller or
cured within such ten-day period, or (iii) if, in the opinion of the Seller,
information obtained by it during due diligence on Buyer subsequent to this
Agreement discloses any matter which Seller believes warrants termination.
(d) By either party hereto if the transactions contemplated by this
Agreement shall not have been consummated on or before 12:00 p.m September 30,
2006.
(e) By either party hereto if the other makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or seeks or
consents to any reorganization or similar relief under any present or future
bankruptcy act or similar law, or is adjudicated a bankrupt or insolvent, or if
a third party commences any bankruptcy, insolvency, reorganization or similar
proceeding involving, the other.
ARTICLE IX
MISCELLANEOUS
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9.1 Non-Waiver. No course of dealing between the parties or any failure
or delay on the part of either party in exercising any rights or remedies
hereunder shall operate as a waiver of any rights or remedies of either party
under this or any other applicable instrument. No single or partial exercise of
any rights or remedies hereunder shall operate as a waiver or preclude the
exercise of any other rights or remedies hereunder.
9.2 Indemnification.
(a) Seller. Seller hereby agrees to defend, indemnify and hold harmless
Buyer against any and all actions, suits, proceedings, claims, demands,
judgments, costs and expenses directly related to or arising from (i) the breach
of a representation or warranty by Seller herein or the documents delivered at
Closing or (ii) any liabilities of Seller not assumed by Buyer at Closing.
(b) Buyer. Buyer hereby agrees to defend, indemnify and hold harmless
Seller against any and all actions, suits, proceedings, claims, demands,
judgments, costs and expenses directly related to or arising from (i) the breach
of a representation or warranty by Seller herein or the documents delivered at
Closing or (ii) any of the Assumed Liabilities.
(c) Procedure. The indemnified party shall promptly notify the
indemnifying, party in writing of any claim, demand, action or proceeding for
which indemnification will be sought under Sections 9.2(a) or 9.2(b), and, if
such claim, demand, action or proceeding is a third party claim, demand, action
or proceeding, the indemnifying party will have the right at its expense to
assume the defense thereof using counsel reasonably acceptable to the
indemnified party. The indemnified party shall have the right to participate, at
its own expense, with respect to any such third party claim, demand, action or
proceeding. In connection with any such third party claim, demand, action or
proceeding, Buyer and Seller shall cooperate with each other and provide each
other with access to relevant books and records in their possession related to
such claim. No such third party claim, demand, action or proceeding shall be
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settled without the prior written consent of the indemnified party, which
consent shall not be unreasonably withheld. If a firm written offer is made to
settle any such third party claim, demand, action or proceeding, which offer
does not involve any injunctive or non-monetary relief against the indemnified
party, and the indemnifying party proposes to accept such settlement and the
indemnified party refuses to consent to such settlement, then: (i) the
indemnifying party shall be excused from, and the indemnified party shall be
solely responsible for, all further defense of such third party claim, demand,
action or proceeding and (ii) the maximum liability of the indemnifying party
relating to such third party claim, demand, action or proceeding shall be the
amount of the proposed settlement if the amount thereafter recovered from the
indemnified party on such third party claim, demand, action or proceeding is
greater than the amount of the proposed settlement. In the event that Buyer or
Seller shall fail to make such commercially reasonable efforts to mitigate or
resolve any claim or liability, then notwithstanding, anything else to the
contrary herein, the other party shall not be required to indemnify any person
for any Losses that could reasonably be expected to have been avoided if Buyer
or Seller, as the case may be, had made such efforts.
9.3 Notices. All notices or communications under this Agreement shall
be to the following addresses (or to such other address as shall at any time be
designated by any party in writing to the other parties):
To Buyer: Global Resource Corporation
000 Xxxxxxx Xxxx
Xxxxxxxxx XX 00000
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To Seller: Carbon Recovery Corporation
Bloomfield Business Park
000 Xxxxxxxxxx Xxxxx, Xxxx 0
Xxxx Xxxxxx, Xxx Xxxxxx 00000
With a copy to: Xxxxxxx X. Xxx, Esq.
X.X. Xxx 0000
Xxxxx, XX 00000
Notice shall be deemed given three days after deposit in the U.S. mail, postage
prepaid, or one day after deposit with a nationally recognized overnight
delivery service. Rejection or other refusal to accept, or the inability to
deliver because of a changed address of which no notice was given, shall not
affect the effectiveness or the date of delivery for any notice sent in
accordance with the foregoing provisions.
9.4 Binding Agreement; Survival. This Agreement shall inure to the
benefit of, and be binding upon, Seller and Buyer, and their respective
legatees, distributees, estates, executors, administrators, personal
representatives, successors and assigns, and other legal representatives. All
representations, warranties, covenants and agreements by the parties contained
in this Agreement shall survive the Closing for a period of one (1) year from
the Closing Date.
9.5 Entire Agreement; Integration Clause. This Agreement and the
Exhibits hereto set forth the entire agreement and understanding of the parties
hereto with respect to this transaction, and any prior agreements are hereby
merged herein and terminated.
9.6 Brokers' or Finders' Fees. No agent, broker, person, or firm acting
on behalf of either party or any of their subsidiaries or under the authority of
any of them is or will be entitled to any commission or broker's or finder's fee
or financial advisory fee in connection with any of the transactions
contemplated herein.
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9.7 No Oral Modification or Waivers. The terms herein may not be
modified or waived orally, but only by an instrument in writing signed by the
party against which enforcement of the modification or waiver (as the case may
be) is sought.
9.8 Controlling Law; Venue. This Agreement and each of the other
documents ancillary hereto shall be governed by, and interpreted and construed
in accordance with, the internal laws of the State of New Jersey (without regard
to its conflicts of law principles). Venue for the adjudication of any claim or
dispute arising out of this Agreement or any of the other ancillary documents
shall be proper only in the state or federal courts of the State of New Jersey,
and all parties to this Agreement and its ancillary documents hereby consent to
such venue.
9.9 Headings. The headings of this Agreement and each of the other
documents ancillary hereto are inserted for convenience only and shall not be
deemed to constitute a part of this Agreement or such ancillary documents.
9.10 Severabilitv. To the extent any provision herein violates any
applicable law, that provision shall be considered void and the balance of this
Agreement shall remain unchanged and in full force and effect.
9.11 Public Disclosure. Seller acknowledges that Buyer is a reporting
company under the Securities Exchange Act of 1934 and must disclose this
Agreement and the terms and conditions hereof. Accordingly, Seller authorizes
Buyer to issue such press release and file such periodic report as may be
required.
9.12 Counterparts. This Agreement may be executed in as many
counterpart copies as may be required. All counterparts shall collectively
constitute a single agreement.
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9.14 Third Party Beneficiary. This Agreement shall not confer any
rights or remedies upon any person other than the parties and their respective
successors and permitted assigns.
9.15 Expenses. Each party shall be responsible for its own costs and
expenses (including legal, financial advisory, investment banking and accounting
fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby.
9.16 Tax Treatment Buyer and Seller hereby agree and covenant that they
shall not (before or after the Closing Date and individually or collectively)
take any action and shall not (before or after the Closing) fail to take any
action which action or failure to act would prevent, or would be reasonably
likely to prevent, the transactions contemplated hereby from qualifying as a
reorganization within the meaning of Section 368(a)(l)(C) of the Code.
9.17 Dissolution. Buyer and Seller hereby agree that from and after the
Closing Date, Seller will not engage in any new business, will promptly
liquidate and dissolve as a corporation, and will distribute the Global Resource
Stock to a liquidating trust for the benefit of Sellers' shareholders, pending
compliance by Buyer with Securities and Exchange Commission rules and
regulations pertaining to a distribution of such shares.
In Witness Whereof, the undersigned have executed and delivered this
Plan and Agreement of Reorganization as of the day and year first above written.
GLOBAL RESOURCE CORPORATION
By:
CARBON RECOVERY CORPORATION
By:
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