SHARE EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION
SHARE EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION
THIS SHARE EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION, dated as of March 7, 2011 (the “Agreement”), between Oraco Resources, Inc., a Nevada corporation (“ORACO”), and Oraco Resources, Inc., a Canadian company (“ORI”). Together ORACO and ORI are referred to collectively as the “Parties.”
ARTICLE I
“Affiliate” means, with respect to any Person: (i) any Person directly or indirectly owning, controlling, or holding with power to vote 10% or more of the outstanding voting securities of such other Person (other than passive or institutional investors); (ii) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other Person; (iii) any Person directly or indirectly controlling, controlled by, or under common control with such other Person; and (iv) any officer, director or partner of such other Person. “Control” for the foregoing purposes shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or voting interests, by contract or otherwise.
“Business Day” means any day other than Saturday, Sunday or a day on which banking institutions in New York are required or authorized to be closed.
“Code” means the United States Internal Revenue Code of 1986, as amended.
“Commission” means the Securities and Exchange Commission.
“ORI Assets” mean all properties, assets, privileges, powers, rights, interests and claims of every type and description that are owned, leased, held, used or useful in ORI’s business and in which ORI has any right, title or interest or in which ORI acquires any right, title or interest on or before the Closing Date, wherever located, whether known or unknown, and whether or not now or on the Closing Date on the books and records of ORI, but excluding any of the foregoing, if any, transferred prior to the Closing pursuant to this Agreement or any Related Documents.
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“ORI Business” means (i) the diamond, gold, mineral and natural resource mining operating business and its related businesses.
“ORI Class A Shares” means the Class A Shares of ORI.
“ORI Stockholders” means, as of any particular date, the holders of ORI Class A Shares on that date.
“Encumbrance” means any material mortgage, pledge, lien, encumbrance, charge, security interest, security agreement, conditional sale or other title retention agreement, limitation, option, assessment, restrictive agreement, restriction, adverse interest, restriction on transfer or exception to or material defect in title or other ownership interest (including restrictive covenants, leases and licenses).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
“GAAP” means United States generally accepted accounting principles as in effect from time to time.
“ORACO Assets” mean all properties, assets, privileges, powers, rights, interests and claims of every type and description that are owned, leased, held, used or useful in the ORACO Business and in which ORACO holds title or any interest or in which ORACO acquires any right, title or interest on or before the Closing Date, wherever located, whether known or unknown, and whether or not now or on the Closing Date on the books and records of ORACO.
“ORACO Business” means the business conducted by ORACO.
“ORACO Common Stock” means the common shares of ORACO, $0.001 par value.
“Exchange Shares” means the shares of ORACO Common Stock deliverable by ORACO in exchange for Class A Shares of ORI.
“Legal Requirement” means any statute, ordinance, law, rule, regulation, code, injunction, judgment, order, decree, ruling, or other requirement enacted, adopted or applied by any Regulatory Authority, including judicial decisions applying common law or interpreting any other Legal Requirement. Without limiting the foregoing, the laws, rules and regulations of and pursuant to the Sarbanes Oxley Act of 2002 as well as the accounting requirements included in the rules and regulations of the Commission, are included with in the term Legal Requirement.
“Losses” shall mean all damages, awards, judgments, assessments, fines, sanctions, penalties, charges, costs, expenses, payments, diminutions in value and other losses, however suffered or characterized, all interest thereon, all costs and expenses of investigating any claim, lawsuit or arbitration and any appeal there from, all actual attorneys’, accountants’, investment bankers’ and expert witness’ fees incurred in connection therewith, whether or not such claim, lawsuit or arbitration is ultimately defeated and, subject to Section 9.4, all amounts paid incident to any compromise or settlement of any such claim, lawsuit or arbitration.
“Liability” means any liability or obligation (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.
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“Material Adverse Effect” means a material adverse effect on (i) the assets, Liabilities, or properties of the Parties, (ii) the validity, binding effect or enforceability of this Agreement or the Related Documents or (iii) the ability of any Party to perform its obligations under this Agreement and the Related Documents; provided, however, that none of the following shall constitute a Material Adverse Effect on ORI: (i) the filing, initiation and subsequent prosecution, by or on behalf of shareholders of any Party, of litigation that challenges or otherwise seeks damages with respect to the Exchange, this Agreement and/or transactions contemplated thereby or hereby, (ii) occurrences due to a disruption of a Party’s business as a result of the announcement of the execution of this Agreement or changes caused by the taking of action required by this Agreement, (iii) general economic conditions, or (iv) any changes generally affecting the industries in which a Party operates.
“Person” means any natural person, corporation, partnership, trust, unincorporated organization, association, limited liability company, Regulatory Authority or other entity.
“Regulatory Authority” means: (i) the United States of America; (ii) any state, commonwealth, territory or possession of the United States of America and any political subdivision thereof (including counties, municipalities and the like); (iii) any foreign (as to the United States of America) sovereign entity and any political subdivision thereof; or (iv) any agency, authority or instrumentality of any of the foregoing, including any court, tribunal, department, bureau, commission or board.
“Representative” means any director, officer, employee, agent, consultant, advisor or other representative of a Person, including legal counsel, accountants and financial advisors.
“Related Documents” mean the Exhibits and any other documents, instruments and certificates to be executed and delivered by the Parties hereunder.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations there under.
“Subsidiary” of a specified Person means (a) any Person if securities having ordinary voting power (at the time in question and without regard to the happening of any contingency) to elect a majority of the directors, trustees, managers or other governing body of such Person are held or controlled by the specified Person or a Subsidiary of the specified Person; (b) any Person in which the specified Person and its subsidiaries collectively hold a 50% or greater equity interest; (c) any partnership or similar organization in which the specified Person or subsidiary of the specified Person is a general partner; or (d) any Person the management of which is directly or indirectly controlled by the specified Person and its Subsidiaries through the exercise of voting power, by contract or otherwise.
“Tax” means any U.S. or non U.S. federal, state, provincial, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, intangible property, recording, occupancy, sales, use, transfer, registration, value added minimum, estimated or other tax of any kind whatsoever, including any interest, additions to tax, penalties, fees, deficiencies, assessments, additions or other charges of any nature with respect thereto, whether disputed or not.
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ARTICLE II
EXCHANGE OF SHARES
2.1
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Exchange of Shares. Subject to the terms and conditions of this Agreement, on the Closing Date (as hereinafter defined), ORACO shall issue and deliver to ORI, or its designees, Fifteen Million One Thousand Five Hundred (15,001,500) shares of ORACO common stock, (“Exchange Shares”) in exchange for all of the issued and outstanding Class A Shares of ORI, together with appropriately executed transfer documents relative to the Class A Shares in favor of ORACO, which ORACO will hold and retain so that ORI is a wholly owned subsidiary of ORACO.
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2.2
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Restrictive Legend. All certificates representing the Exchange Shares shall contain the following legend in customary form restricting transfer under the 1933 Act absent registration with the Commission therefore, or available exemption, to which the Sellers hereby consent:
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THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR UNDER ANY STATE SECURITIES LAW OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE ARE SPECULATIVE SECURITIES.
2.3
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Closing. The closing of the transactions contemplated by this Agreement and the Related Documents (“Closing”) shall take place at the offices of Xxxxxxxxxx Law Group, 000 Xxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx, or at such other location as the parties may agree on or before April 8, 2011, at 10:00 a.m., Pacific Time,. The date on which the Closing actually occurs is referred to herein as the “Closing Date.” The Closing may occur by exchange of documents and instruments, without personal attendance of representatives of the parties.
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ARTICLE III
ORI (as to Sections 3.1-3.14) represents and warrants to ORACO that the statements contained in this ARTICLE III are correct and complete as of the date of this Agreement and, except as provided in Section 7.1, will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this ARTICLE III, except in the case of representations and warranties stated to be made as of the date of this Agreement or as of another date and except for changes contemplated or permitted by this Agreement).
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3.2
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(a)
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As of the Closing, the authorized, issued and outstanding Class A Shares will be listed on Exhibit 2.1(a) hereto.
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(b)
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As of the Closing, there will be no outstanding or authorized options, warrants, purchase rights, preemptive rights or other contracts or commitments that could require ORI to issue, sell, or otherwise cause to become outstanding any of its Class A shares or other ownership interests (collectively “Options”).
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(c)
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As of the Closing, all of the issued and outstanding Class A Shares of Company will be duly authorized and validly issued and outstanding, fully paid and nonassessable. As of the Closing, all the Options will have been duly authorized and validly issued and outstanding. As of the Closing, the capital stock and the Options will have been issued in compliance with applicable securities laws and other applicable Legal Requirements or transfer restrictions under applicable securities laws.
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(d)
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All of the Class A Shares of ORI to be issued between the date of this Agreement and the Closing will be duly authorized and will be validly issued and outstanding as of the Closing, fully paid and nonassessable, and will be issued in compliance with applicable securities laws and other applicable Legal Requirements or transfer restrictions under applicable securities laws.
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3.3
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Authority and Validity. ORI has all requisite power to execute and deliver, to perform such Party’s obligations under, and to consummate the transactions contemplated by, this Agreement (subject to receipt of any consents, approvals, authorizations or other matters). The execution and delivery by ORI of, the performance by ORI of such Party’s obligations under, and the consummation by ORI of the transactions contemplated by, this Agreement have been duly authorized by all requisite action of ORI. This Agreement has been duly executed and delivered by ORI and, as of the Closing, assuming due execution and delivery by ORACO, is the legal, valid, and binding obligation of ORI, enforceable against such Party in accordance with its terms. Upon the execution and delivery of the Related Documents by each Person (other than ORACO) that is required by this Agreement to execute, or that does execute, this Agreement or any of the Related Documents, and assuming due execution and delivery thereof by ORACO, the Related Documents will be the legal, valid and binding obligations of ORI, enforceable against such Party in accordance with their respective terms.
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3.5
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Consents and Approvals. No consent, approval, authorization or order of, registration or filing with, or notice to, any Regulatory Authority or any other Person is necessary to be obtained, made or given by ORI in connection with the execution, delivery and performance by ORI of this Agreement or any Related Document or for the consummation by ORI of the transactions contemplated hereby or thereby, except to the extent the failure to obtain any such consent, approval, authorization or order or to make any such registration or filing would not have a Material Adverse Effect on ORI or a material adverse effect on the validity, binding effect or enforceability of this Agreement or the Related Documents or the ability of ORI to perform its obligations under this Agreement or any of the Related Documents.
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(a)
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ORI’s Stockholders are acquiring the Exchange Shares for investment, for their own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and the Stockholders have no present intention of selling, granting any participation in, or otherwise distributing the same. ORI further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of ORI Shares, except to the Stockholders of ORI.
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(b)
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ORI understands that the Exchange Shares are not registered under the Securities Act, that ORACO’s sale and the issuance of its securities hereunder is exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and that ORACO’s reliance on such exemption is predicated on ORI’s representations set forth herein. ORI, and its Stockholders are an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Act, as such definition is amended by the Xxxx-Xxxxx Act.
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3.16
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Restricted Securities. ORI understands that the Exchange Shares may not be sold, transferred, or otherwise disposed of without registration under the Act or an exemption there from, and that in the absence of an effective registration statement covering the Exchange Shares or any available exemption from registration under the Act, the Exchange Shares must be held indefinitely. ORI is aware that the Exchange Shares may not be sold pursuant to Rule 144 promulgated under the Act unless all of the conditions of that Rule are met. Among the conditions for use of Rule 144 is the availability of current information to the public about ORI.
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ARTICLE IV
ORACO, represents and warrants to ORI that the statements contained in this ARTICLE IV are correct and complete as of the date of this Agreement and, except as provided in Section 8.1, will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this ARTICLE IV, except in the case of representations and warranties stated to be made as of the date of this Agreement or as of another date and except for changes contemplated or permitted by the Agreement).
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4.1
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Organization and Qualification. ORACO is a corporation duly organized, validly existing and in good standing under the laws of Nevada. ORACO has all requisite power and authority to own, lease and use its assets as they are currently owned, leased and used and to conduct its business as it is currently conducted. ORACO is duly qualified or licensed to do business in and is in good standing in each jurisdiction in which the character of the properties owned, leased or used by it or the nature of the activities conducted by it makes such qualification necessary, except any such jurisdiction where the failure to be so qualified or licensed and in good standing would not have a Material Adverse Effect on ORACO or a Material Adverse Effect on the validity, binding effect or enforceability of this Agreement or the Related Documents or the ability of ORI or any of ORACO to perform their obligations under this Agreement or any of the Related Documents.
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4.2
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(a)
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As of the date hereof, ORACO’s authorized capital stock of 100,000,000 shares of common stock, $0.001 par value, and 10,000,000 shares of preferred stock, $0.001 of which there are 15,344,000 shares of common stock outstanding and no shares of preferred stock outstanding.
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(b)
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Except for the Common Stock, there are no outstanding or authorized options, warrants, purchase rights, preemptive rights or other contracts or commitments that could require ORACO to issue, sell, or otherwise cause to become outstanding any of its capital stock or other ownership interests.
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(c)
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All of the issued and outstanding shares of ORACO Common Stock have been, and all prior issuances of ORACO Common Stock were, issued in compliance with applicable securities laws and all other applicable Legal Requirements.
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(d)
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The Exchange Shares, when issued in accordance with this Agreement, will have been duly authorized, validly issued and outstanding and will be fully paid and nonassessable.
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(e)
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As of the Closing, and upon the issuance of 3,000,000 shares of common stock to Jyork Industries Inc. Ltd., a Sierra Leone company, and upon cancellation of 10,000,000 shares of restricted common stock and after the issuance of 15,001,500 Exchange Shares, it is anticipated that there will be 23,345,500 shares of common stock outstanding and no shares of preferred stock outstanding.
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ARTICLE V
COVENANTS OF ORI
Between the date of this Agreement and the Closing Date:
5.1
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Additional Information. ORI shall provide to ORACO and its Representatives such financial, operating and other documents, data and information relating to ORI, ORI Business and ORI Assets and Liabilities of ORI, as ORACO or its Representatives may reasonably request. Such additional information to include, but not be limited to, audited financial statements for the year ending December 31, 2010, all prepared in conformity with US GAAP.
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5.2
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Continuity and Maintenance of Operations. ORI shall, and shall cause each of its Subsidiaries to use its commercially reasonable efforts to promote the financial success of ORI Business and promptly notify ORACO of any material adverse change in the condition (financial or otherwise) of ORI Business and use its commercially reasonable efforts to promote, develop and preserve its relationships with its present employees as well as the goodwill of its customers and promptly notify ORACO of any material adverse change in such relationships.
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5.3
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Consents and Approvals. As soon as practicable after execution of this Agreement, ORI shall use commercially reasonable efforts to obtain any necessary consent, approval, authorization or order of, make any registration or filing with or give any notice to, any Regulatory Authority or Person as is required to be obtained, made or given by ORI to consummate the transactions contemplated by this Agreement and the Related Documents.
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5.4
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Notification of Certain Matters. ORI shall promptly notify ORACO of any fact, event, circumstance or action known to it that is reasonably likely to cause ORI to be unable to perform any of its covenants contained herein or any condition precedent in ARTICLE VII not to be satisfied, or that, if known on the date of this Agreement, would have been required to be disclosed to ORACO pursuant to this Agreement or the existence or occurrence of which would cause any of ORI’s representations or warranties under this Agreement not to be correct and/or complete. ORI shall give prompt written notice to ORACO of any adverse development causing a breach of any of the representations and warranties in ARTICLE III as of the date made.
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5.5
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Company Schedules and Signature Pages. ORI shall, from time to time prior to Closing, supplement its Schedules with additional information that, if existing or known to it on the date of delivery to ORACO, would have been required to be included therein. In particular, prior to the closing, ORI will complete and update Schedules 2.1(a) and 3.2(b) to list all of ORI Stockholders as of the Closing Date and all holders of Options as of the Closing Date. ORI will deliver to ORACO a joinder to this Agreement from all Company Stockholders as of the Closing Date other than the Founders that initially signed this Agreement. Such signatures may be by power of attorney.
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5.6
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Payment of Costs of Transaction. If the transaction is consummated, ORACO will be responsible for all the costs of the transaction contemplated by this Agreement.
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5.7
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Issuance of Additional Shares. Until the restrictions described in Section 3.15 of this Agreement have lapsed, no shares of the common or preferred stock of ORACO shall be issued, with the exception of the shares disclosed pursuant to Section 4.2(e) of this Agreement, and the following additional shares:
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ARTICLE VI
COVENANTS OF ORACO
Between the date of this Agreement and the Closing Date:
6.1
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Additional Information. ORACO shall provide to ORI and its Representatives such financial, operating and other documents, data and information relating to ORACO, the ORACO Business and the ORACO Assets and the Liabilities of ORACO, as ORI or its Representatives may reasonably request.
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6.2
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No Solicitations. From and after the date of this Agreement until the Closing or termination of this Agreement pursuant to ARTICLE X, ORACO will not nor will it authorize or permit any of its officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by it, directly or indirectly, (i) solicit or initiate the making, submission or announcement of any other acquisition proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to any other acquisition proposal, (iii) engage in discussions with any Person with respect to any other acquisition proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any other acquisition proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any other acquisition proposal, and other than as required to comply with their fiduciary duties.
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6.3
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Continuity and Maintenance of Operations. ORACO promptly will notify ORI of any material adverse change in the condition or prospects (financial or otherwise) of the ORACO or the ORACO Business.
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6.4
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Consents and Approvals. As soon as practicable after execution of this Agreement, ORACO shall use its commercially reasonable efforts to obtain any necessary consent, approval, authorization or order of, make any registration or filing with or give notice to, any Regulatory Authority or Person as is required to be obtained, made or given by ORACO to consummate the transactions contemplated by this Agreement and the Related Documents.
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6.5
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Notification of Certain Matters. ORACO shall promptly notify ORI of any fact, event, circumstance or action known to it that is reasonably likely to cause ORACO to be unable to perform any of its covenants contained herein or any condition precedent in ARTICLE VIII not to be satisfied, or that, if known on the date of this Agreement, would have been required to be disclosed to ORI pursuant to this Agreement or the existence or occurrence of which would cause any of the ORACO representations or warranties under this Agreement not to be correct and/or complete. ORACO shall give prompt written notice to ORI of any adverse development causing a breach of any of the representations and warranties in ARTICLE IV.
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6.6
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ORACO Further Information. ORACO shall, from time to time prior to Closing, supplement the information previously supplied to ORI with additional information that, if existing or known to it on the date of this Agreement, would have been required to be included therein.
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6.7
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Change of Control. At the Closing, ORI is hereby permitted to date the resignations and letters of change of officers and use such resignations and letters as may be necessary to effect the change of control of the board of directors and the officers.
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6.8
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Elimination of Outstanding Obligations. ORACO, prior to the Closing, will take all action necessary to pay and otherwise eliminate all of its liabilities so that at the Closing, there will be no outstanding or contingent liabilities of ORACO outstanding. ORACO will also take all such action as may be required to terminate all agreements that call for contingent or future payments of money by ORACO, including under consulting and employment agreements as of the date of this Agreement. ORACO will also terminate all of its obligations to register any securities of ORACO and will terminate all outstanding capital stock award plans, including stock option plans.
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ARTICLE VII
All obligations of ORACO under this Agreement shall be subject to the fulfillment at or prior to Closing of each of the following conditions, it being understood that ORACO may, in their sole discretion, to the extent permitted by applicable Legal Requirements, waive any or all of such conditions in whole or in part.
7.3
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Consents and Approvals. All consents, approvals, permits, authorizations and orders required to be obtained by ORI from, and all registrations, filings and notices required to be made by ORI with or given to, any Regulatory Authority or Person as provided herein shall have been obtained.
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7.4
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Delivery of Documents. ORI shall have delivered, or caused to be delivered, to ORACO the following documents:
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(i) Certified copies of ORI’s articles of organization and operating agreement and certified resolutions of the board of directors or stockholders of ORI authorizing the execution of this Agreement and the Related Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby.
(ii) Such other documents and instruments as ORACO may reasonably request: (A) to evidence the accuracy of ORI’s representations and warranties under this Agreement, the Related Documents and any documents, instruments or certificates required to be delivered there under; (B) to evidence the performance by ORI of, or the compliance by ORI with, any covenant, obligation, condition and agreement to be performed or complied with by ORI under this Agreement and the Related Documents; or (C) to otherwise facilitate the consummation or performance of any of the transactions contemplated by this Agreement and the Related Documents.
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7.5
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No Material Adverse Change. Since the date hereof, there shall have been no material adverse change in ORI Assets, ORI Business or the financial condition or operations of ORI, taken as a whole.
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ARTICLE VIII
All obligations of ORI under this Agreement shall be subject to the fulfillment at or prior to Closing of the following conditions, it being understood that ORI may, in its discretion, to the extent permitted by applicable Legal Requirements, waive any or all of such conditions in whole or in part.
8.3
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Consents and Approvals. All consents; approvals, authorizations and orders required to be obtained from, and all registrations, filings and notices required to be made with or given to, any Regulatory Authority or Person as provided herein shall have been obtained.
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8.4
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Appointment of Directors and Officers. ORACO shall have taken all such action as necessary to appoint the Directors and the Officers of the post-exchange company as provided in Section 6.2 necessary to effect the change of control prior to the Closing Date.
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(i) Certified copies of the articles of incorporation and by-laws of ORACO and certified resolutions by the board of directors authorizing the execution of this Agreement and the Related Documents and the consummation of the transactions contemplated hereby.
(ii) Such other documents and instruments as ORI may reasonably request: (A) to evidence the accuracy of the representations and warranties of ORACO under this Agreement and the Related Documents and any documents, instruments or certificates required to be delivered there under; (B) to evidence the performance by ORACO of, or the compliance by ORACO with, any covenant, obligation, condition and agreement to be performed or complied with by ORACO under this Agreement and the Related Documents; or (C) to otherwise facilitate the consummation or performance of any of the transactions contemplated by this Agreement and the Related Documents.
(iii) Any additional letters of resignation from ORACO’s current officers and directors to be effective upon the Closing Date, as requested by ORI.
(iv) Copies of the board resolutions from ORACO’s current directors appointing only the Directors and the Officers, effective the Closing Date.
(v) All other corporate books and records of ORACO.
8.8
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No Material Adverse Change. There shall have been no material adverse change in the business, financial condition, operations or prospects of ORACO and the ORACO Business, other than as contemplated herein.
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ARTICLE IX
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ARTICLE X
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(a)
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by mutual written agreement of Parties; or
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(b)
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by either ORI or ORACO upon notification to the non-terminating party by the terminating party provided that:
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(i)
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the terminating party is not in material breach of its obligations under this Agreement and there has been a material breach of any representation, warranty, covenant or agreement on the part of the non-terminating party set forth in this Agreement such that the conditions in Sections 7.1, 7.2, 8.1 or 8.2 will not be satisfied; or
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(ii)
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any court of competent jurisdiction or other competent Governmental or Regulatory Authority shall have issued an order making illegal or otherwise permanently restricting, preventing or otherwise prohibiting the Exchange and such order shall have become final and non-appealable, or
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(iii)
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the transaction has not closed by April 8, 2011.
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(c)
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by ORI on or before April 8, 2011, if it discovers though its due diligence review of ORACO any breach of a representation or warranty of ORACO or a condition that is reasonably likely to prevent ORACO from being able to meet a covenant or a condition to Closing under this Agreement, provided that to terminate this Agreement under this provision, ORI must give written notice of the breach or condition to ORACO and ORACO will have five days in which to cure the breach or condition, which if not cured to the reasonable satisfaction of ORI, ORI shall then provide written notice of termination of this Agreement within two days of the end of the cure period. If ORI elects not to terminate this Agreement after serving written notice of a breach or condition, then the representation or warranty or the covenant or condition will be deemed modified to either create an exception or waiver, and ORI will not be in breach or put into breach of this Agreement for any purpose thereto related.
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ARTICLE XI
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11.2
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Publicity. The initial press release shall be a joint press release and thereafter ORI and ORACO each shall consult with each other prior to issuing any press releases or otherwise making public announcements with respect to the Exchange and the other transactions contemplated by this Agreement and prior to making any filings with any third party and/or any Regulatory Authorities (including any national securities interdealer quotation service) with respect thereto, except as may be required by law or by obligations pursuant to any listing agreement with or rules of any national securities interdealer quotation service.
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(a) If to ORACO, to:
000 Xxxx Xxxx Xxxx
Xxxxx, Xxxxxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxxxxx
Xxxxxxxxxx Law Group
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
(b) If to ORI to:
JYORK Industries Inc. Ltd.
000 Xxxxx Xxx., Xxxxx 0000
Xxx Xxxx, XX 00000
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Any Party may change the address to which notices are required to be sent by giving notice of such change in the manner provided in this Section.
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11.6
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Choice of Law. This Agreement and the rights of the Parties under it shall be governed by and construed in all respects in accordance with the laws of the State of Nevada, without giving effect to any choice of law provision or rule.
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[Signature Page to Follow.]
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Oraco Resources, Inc., a Nevada corporation
/S/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
Oraco Resources, Inc., a Canadian company
By: /S/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, President
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EXHIBIT 2.1(a)
Name
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# of Class A Stock
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Summit Capital USA Inc.
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1,500
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Xxxxxxx Xxxxxxx
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9,500,000
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Xxxxxxx Xxxxx
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2,000,000
|
Xxxxxxxxxxx X. Xxxxxxx
|
2,000,000
|
Xxxx X. Xxxxxx
|
1,500,000
|
15,001,500
|
20