STOCK PURCHASE AND REORGANIZATION AGREEMENT
Exhibit
10.1
STOCK PURCHASE AND
REORGANIZATION
AGREEMENT
This Stock Purchase and Reorganization
Agreement (hereinafter the
"Agreement") is made and entered into as of April 30, 2009, by and among
Xxxx-Xxxxxxx Holdings, Inc., a Nevada corporation ("FSH"), Eagle Environmental
Technology, Inc. (“Seller”) and Eagle Oil Holding Company, a
Nevada corporation (“Eagle Oil”).
AGREEMENT
In consideration of the terms hereof,
the parties hereto agree as follows:
ARTICLE I - PURCHASE AND SALE OF
STOCK
1.1 Purchase and Sale of
Stock
Subject to the terms and conditions
hereof, on the Closing Date (as defined below), Seller shall sell, convey,
transfer, assign and deliver to FSH, and FSH shall purchase from the Seller, all
of the issued and outstanding common shares of Eagle Oil, par value $0.001 (the
“Eagle Oil
Stock”).
1.2 The
Closing
The closing of this Agreement (the “Closing”) shall occur on April 30, 2009 (the
“Closing Date”) at such time and location as the
parties hereto shall agree.
1.3 Deliveries at the
Closing
On the Closing Date in order to
effectuate the transfer of the Eagle Oil Stock:
(a) The Seller shall deliver to
FSH certificates representing all of the Eagle Oil Stock, free and clear of any
claim, lien, pledge, option, charge, easement, security interest, right-of-way,
encumbrance, restriction on sale or transfer, preemptive right or option or any other right of any third
party of any nature whatsoever (“Encumbrance”), duly endorsed in blank for transfer
or accompanied by stock powers duly executed in blank.
(b) FSH shall deliver the consideration
of the Purchase Price as set forth in Section 1.4
below.
(c) FSH, the Seller and Eagle Oil shall
each deliver all documents, certificates, agreements and instruments required to
be delivered pursuant to Articles IV and V; and
(d) All instruments and
documents executed and delivered to any party pursuant hereto shall be in a
form and substance, and shall be executed in a manner, reasonably satisfactory
to the receiving party.
1.4 Purchase
Price
Subject to the terms and conditions of
this Agreement, the total purchase price for the Eagle Oil Stock (the “Purchase Price”) shall be 28,650,000 shares of FSH
common stock, $0.001 par value (the “Consideration Shares”), provided that, in the event that the
number of shares of FSH common stock outstanding immediately before the Closing
shall exceed such number set forth in Section
III(m) below by more than five percent (5%) (the “Outstanding Share Threshold”), the number of Consideration Shares
shall be increased by nine (9) shares for each one (1) share that the actual
number of shares of FSH common stock exceeds the Outstanding
Share Threshold.
1.5 Assistance in
Consummation of the Purchase and Sale of Stock
FSH, the Seller and Eagle Oil shall
provide all reasonable assistance to, and shall cooperate with, each other to
bring about the consummation of the purchase and sale of
the Eagle Oil Stock and the other transactions contemplated herein as soon as
possible in accordance with the terms and conditions of this
Agreement.
ARTICLE II - REPRESENTATIONS AND
WARRANTIES
OF SELLER AND EAGLE
OIL
Seller and Eagle Oil jointly and
severally represent and warrant to FSH, as of the date of this Agreement and as
of the Closing, all as follows in this Article II:
(a) Seller is the sole and registered owner
of all of the issued and outstanding shares of Eagle Oil. Seller has
good title thereto, free and clear of any Encumbrance.
(b) Immediately prior to
the Closing, the outstanding capitalization of Eagle Oil shall
consist of 1,000 shares of Eagle Oil Common Stock. The shares of Eagle Oil
Common Stock are free from
claims, liens, or other encumbrances, and at the Closing Date Seller will have
good title and the unqualified right to transfer and dispose of such shares
Eagle Oil Common Stock.
(c) Eagle Oil has no outstanding or
authorized capital stock,
warrants, options or convertible securities.
(d) The Eagle Oil financial statements for
the period from its inception through April 15, 2009 (the “Eagle Oil Financial
Statements”) are true and
accurate, in accordance with the books and records of Eagle Oil, and present fairly in
all material respects the financial position and results of operations of Eagle
Oil as of the times and for the periods referred to therein, in each case in
accordance with generally accepted accounting principles under current United States accounting
rules and regulations, consistently applied (“GAAP”). All of the financial books
and records of Eagle Oil have been made available to FSH, and such books and
records completely and fairly record in all material respects FSH’s financial affairs, which would
normally be recorded in financial books and records. There are no material
liabilities or obligations, either fixed or contingent, not disclosed in the
Eagle Oil Financial Statements or in any exhibit thereto or notes thereto other than liabilities,
contracts or obligations incurred in the ordinary course of business; and no
such liabilities, contracts or obligations in the ordinary course of business
constitute liens or other liabilities which materially alter the financial condition of Eagle Oil as
reflected in the Eagle Oil Financial Statements. Eagle Oil has good title to all
assets shown on the Eagle Oil Financial Statements subject only to dispositions
and other transactions in the ordinary course of business, the disclosures set forth therein and liens
and encumbrances of record.
(e) Since the date of the Eagle Oil
Financial Statements, there have not been any material adverse changes in the
financial position of Eagle Oil except changes arising in the ordinary course of business, which changes
will in no event materially and adversely affect the financial position of Eagle
Oil.
(f) Eagle Oil is not a party to any material
pending litigation or, to its best knowledge, any governmental investigation or
proceeding, not reflected
in the Eagle Oil Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against Eagle Oil.
(g) Eagle Oil is in good standing in its
jurisdiction of
incorporation, and is in good standing and duly qualified to do business in each
jurisdiction where required to be so qualified except where the failure to so
qualify would have no material negative impact on Eagle Oil.
(h) Eagle Oil has (or, by the Closing Date, will have) filed all
material tax, governmental and/or related forms and reports (or extensions
thereof) due or required to be filed and has (or will have) paid or made
adequate provisions for all taxes or assessments which have become due
as of the Closing Date.
(i) Eagle Oil has not materially breached
any material agreement to which it is a party. Eagle Oil has previously given
FSH copies or access thereto of all material contracts, commitments and/or
agreements to which Eagle Oil is a party including all relationships or
dealings with related parties or affiliates.
(j) Eagle Oil has no
subsidiaries.
(k) Eagle Oil has made all material
corporate financial records, minute books, and other corporate documents and
records available for
review to present management of FSH prior to the Closing Date, during reasonable
business hours and on reasonable notice.
(l) The execution of this Agreement does not
materially violate or breach any material agreement or contract to which Eagle
Oil is a party and has been
duly authorized by all appropriate and necessary corporate action under other
applicable law and Eagle Oil, to the extent required, has obtained all necessary
approvals or consents required by any agreement to which Eagle Oil is
a party.
(m) All disclosure information provided by
Eagle Oil which is to be set forth in disclosure documents of FSH or otherwise
delivered to FSH by Eagle Oil for use in connection with the transaction
described herein is true, complete and accurate in all material
respects.
ARTICLE III - REPRESENTATIONS AND
WARRANTIES
OF FSH.
Except as is otherwise described in the
applicable Schedules, FSH represents and warrants to the Seller, as of the date
of this Agreement and as of the Closing, all as follows in this Article III:
(a) As of the Closing Date,
the Consideration Stock, to
be issued and delivered to the seller hereunder will, when so issued and
delivered, constitute, duly authorized, validly and legally issued shares of
FSH common stock,
fully-paid and
non-assessable.
(b) FSH
has the corporate power and
authority to enter into this Agreement and to perform its respective obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized by all
necessary corporate action, including the board of directors of FSH. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which FSH
is a party or by which its assets
and properties are bound, and will not violate any judgment, decree, order,
writ, rule, statute, or regulation applicable to FSH or its properties. The
execution and performance of this Agreement will not violate or conflict with
any provision of the Certificate of Incorporation or by-laws of FSH.
(c) FSH has delivered to Seller a true and
complete copy of FSH’s Form 10 and Form 10/A for the periods
ending April 30, 2007 and April 30, 2008, respectively and Form 10-Q
for the three months ended January 31, 2009 (the "FSH Financial
Statements"). The FSH Financial Statements are complete, accurate and
fairly present the financial condition of CaseyCorp as of the dates thereof and
the results of its operations for the periods then
ended. There are no liabilities or obligations either fixed or
contingent not reflected therein. The FSH Financial Statements have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as may be
indicated therein or in the notes thereto) and fairly present the financial
position of FSH as of the dates thereof and the results of its operations and
changes in financial position for the periods then
ended.
(d) Since January 31, 2009, there have not
been any material adverse changes in the financial condition of
CaseyCorp.
(e) FSH is not a party to or the subject of
any pending litigation, claims, decrees, orders, stipulations or governmental
investigation or proceeding
not reflected in the FSH Financial Statements or otherwise disclosed herein, and
there are no lawsuits, claims, assessments, investigations, or similar matters,
against or affecting FSH, its management or its properties. FSH has complied in
all material respects with all laws,
statutes, ordinances, regulations, rules, decrees or orders applicable to
it.
(f)
FSH is duly organized, validly
existing and in good standing under the laws of the State of Nevada; has the
corporate power to own its property and to carry on its business as
now being conducted and is duly qualified to do business in any jurisdiction
where so required except where the failure to so qualify would have no material
negative impact on it.
(g) FSH has filed all federal,
state, county and local
income, excise, property and other tax, governmental and/or related returns,
forms, or reports, which are due or required to be filed by it prior to the date
hereof, except where the failure to do so would have no material adverse
impact on FSH, and has paid or made adequate
provision in the FSH Financial Statements for the payment of all taxes, fees, or
assessments which have or may become due pursuant to such returns or pursuant to
any assessments received. FSH is not delinquent or obligated for any tax, penalty, interest,
delinquency or charge.
Each such tax return or report is
correct and complete in all material respects and fully discloses and does not
understate the income, taxes, expenses, deductions and credits for the period
to which it
relates. Up to and including the Closing Date, no claim has been made
against FSH by any authority in a jurisdiction in which it does not file a
return that it is or may be subject to any taxes in that jurisdiction. FSH has
not received notice of any actions, suits, proceedings,
investigations or claims pending or threatened against FSH in respect of any
taxes nor are any matters relating to any taxes under discussion with any
governmental authority.
(h) There are no existing options,
calls, warrants, preemptive
rights or commitments of any character relating to the issued or unissued
capital stock or other securities of FSH, except as contemplated in this
Agreement and there exist no liens or other securities interests in any assets
of FSH.
(i)
The corporate
financial records, minute books, and other documents and records of FSH have
been made available to FSH prior to the Closing, shall be delivered to new
management of FSH at Closing and are correct and accurate in all material
respects and reflect all
decisions made by the Board of Directors and the shareholders of
FSH.
(j)
FSH has not breached, nor is
there any pending, or to the knowledge of management, any threatened claim that
FSH has breached, any of the terms or conditions of any agreements, contracts or commitments
to which it is a party or by which it or its assets are is bound. The
execution and performance hereof will not violate any provisions of applicable
law or any agreement to which FSH is subject. FSH hereby represents that it has no business operations or
material assets and it is not a party to any material contract or commitment
other than appointment documents with its transfer agent, and that it has
disclosed to FSH all relationships or dealings with related parties or affiliates.
(k)
FSH common stock is
currently approved for quotation on the OTC Bulletin Board under the symbol
"FSPL" and there are no stop orders in effect or contemplated with respect
thereto and no facts exist which may give rise there. CaseyCorp has filed all reports required to
be filed by FSH pursuant to the Securities Act of 1934, as amended. FSH has not
been informed, and has no reason to believe, that its common stock will be
delisted or suspended by FINRA. FSH has fully complied will all applicable securities laws and
regulations and is not in default of any of its obligations
thereunder.
(l)
All information regarding
FSH which has been provided to Seller or otherwise disclosed in connection with
the transactions contemplated herein, is true, complete and accurate in all
material respects. FSH has provided to Seller all material information regarding
FSH.
(m) Immediately prior to
the Closing, the outstanding capitalization of FSH shall consist of
no more than 3,350,000 shares of common stock.
(n) The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
will not (a) constitute a violation (with or without the giving of notice or
lapse of time, or both) of any provision of law or any judgment, decree,
order, regulation or rule of any court or other governmental authority
applicable to FSH, (b) require any consent, approval or authorization of, or
declaration, filing or registration with, any person, except for
compliance with applicable securities laws and
the filing of all documents necessary to consummate the transaction with any
governmental entity, (c) result in a default (with or without the giving of
notice or lapse of time, or both) under, acceleration or termination of, or the creation in any party of
the right to accelerate, terminate, modify or cancel, any agreement, lease, note
or other restriction, encumbrance, obligation or liability to which FSH is a
party or by which either is bound or to which any of their assets are subject, (d) result in the
creation of any material lien or encumbrance upon the assets of FSH or the funds
being delivered in connection herewith, or (e) conflict with or result in a
breach of or constitute a default under any provision of the charter documents of
FSH.
(o) FSH does not have any agreements of any
nature to acquire, directly or indirectly, any shares of capital stock, or other
equity or ownership interest in, any person, firm or corporation, or its
assets.
(p) There is no requirement to make any filing, give
any notice to or obtain any license, permit, certificate, regulation,
authorization, consent or approval of, any governmental or regulatory
authorities as a condition to the lawful consummation of the transactions
contemplated by this Agreement except for
the filings, notifications, consents and approvals described in this
Agreement.
(q) As of the Closing, FSH’s liabilities will not exceed $1,000;
and
(r)
All
disclosure information provided by FSH which was delivered to Eagle Oil for use in connection
with the transaction described herein is true, complete and accurate in all
material respects.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions Precedent
to the Obligations of Eagle Oil.
All obligations of Eagle Oil under this Agreement are subject to
the fulfillment, prior to or as of the Closing and/or the Closing Date, as
indicated below, of each of the following conditions:
(a)
The representations and
warranties by or on behalf of FSH contained in this Agreement or in any certificate or
document delivered pursuant to the provisions hereof shall be true in all
material respects at and as of the Closing Date as though such representations
and warranties were made at and as of such time.
(b) FSH shall have performed and complied with all
covenants, agreements, and conditions set forth in, and shall have executed and
delivered all documents required by this Agreement to be performed or complied
with or executed and delivered by it prior to or at the Closing.
(c)
On or before the Closing
Date, FSH shall have delivered to Eagle Oil certified copies of resolutions of
the board of directors of FSH approving and authorizing the execution, delivery
and performance of this Agreement and authorizing all of the necessary and proper action to enable
CaseyCorp to comply with the terms of this Agreement including the election of
Eagle Oil s nominee to the Board of Directors of FSH and all matters outlined
herein.
(d) As of the Closing, Xxx Xxxx Xxxxxxx
shall have resigned in
writing from all positions as directors and officers of FSH upon the election
and appointment of the Eagle Oil’s nominees.
(e) At the Closing, all instruments and
documents delivered to Seller and pursuant to the provisions hereof shall be
reasonably satisfactory to
legal counsel for Seller.
(f)
The shares of restricted
Consideration Stock to be issued to the Seller will be duly authorized, validly
issued, nonassessable and fully-paid under Nevada corporation law and will be
issued in compliance with
all federal, state and applicable corporation and securities
laws.
(g) FSH shall have no more than $450,000 in
debt, which debt shall be assignable.
4.2 Conditions Precedent
to the Obligations of FSH.
All obligations of FSH under
this Agreement are subject
to the fulfillment, prior to or at the Closing, of each of the following
conditions:
(a) The representations and warranties by
Eagle Oil and the Seller contained in this Agreement or in any certificate or
document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) Seller shall have performed and complied
with, in all material respects, all covenants, agreements, and conditions
required by this Agreement to be performed or complied with prior to or at the
Closing.
4.3 Nature and Survival
of Representations.
All representations, warranties and
covenants made by any party in this Agreement shall survive the Closing and the
consummation of the transactions contemplated hereby for one year from the
Closing. All of the parties hereto are executing and carrying out the
provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements
contained in this Agreement and not upon any investigation upon which it might
have made or any representation, warranty, agreement, promise or information,
written or oral, made by the other party or any other person other than as specifically set forth
herein.
ARTICLE V
DOCUMENTS DELIVERED AT
CLOSING
5.1 Documents at
Closing.
At the Closing, the following documents
shall be delivered:
(a) Eagle Oil will deliver, or will
cause to be delivered, to FSH the following:
(i) a certificate executed by
the President and Secretary of Eagle Oil to the effect that all representations
and warranties made by Eagle Oil under this Agreement are true and correct as of
the Closing, the same as though originally given to FSH on said date;
(ii) a certificate from the
jurisdiction of incorporation of Eagle Oil dated at or about the Closing to the
effect that Eagle Oil is in good standing under the laws of said
jurisdiction;
(iii) such other instruments,
documents and certificates,
if any, as are required to be delivered pursuant to the provisions of this
Agreement;
(iv) certified copies of
resolutions adopted by the directors of Eagle Oil authorizing this transaction;
and
(v) all other items, the
delivery of which is a
condition precedent to the obligations of Eagle Oil as set forth
herein.
(b) FSH will deliver or cause to be
delivered to Seller:
(i) stock certificates
representing the Consideration Shares to be issued as the Purchase
Price;
(ii) a certificate of the President of FSH, to the
effect that all representations and warranties of FSH made under this Agreement
are true and correct as of the Closing, the same as though originally given to
Seller on said date;
(iii) certified copies of
resolutions adopted by
FSH’s board of directors authorizing the
transaction contemplated hereunder and all related matters described
herein;
(iv) certificate from the
jurisdiction of incorporation of FSH dated at or about the Closing Date that FSH
is in good standing under
the laws of said state;
(v) such other instruments
and documents as are required to be delivered pursuant to the provisions of this
Agreement;
(vi) resignation of Xxx Xxxx
Spoleti as officer and director of FSH and appointment of new officers and directors as directed by
Seller; and
(vii) all corporate and
financial records of FSH shall be delivered to Seller.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification.
For a period of one year from the
Closing, FSH agrees to indemnify and hold harmless Eagle Oil and the
Seller, and Eagle Oil and Seller agree to indemnify and hold harmless FSH and
FHS’s pre-Closing stockholders, at all times
after the date of this Agreement against and in respect of any liability, damage
or deficiency, all actions, suits, proceedings,
demands, assessments, judgments, costs and expenses including attorney's fees
incident to any of the foregoing, resulting from any material misrepresentations
made by an indemnifying party to an indemnified party, an indemnifying party's breach of covenant or
warranty or an indemnifying party's nonfulfillment of any agreement hereunder,
or from any material misrepresentation in or omission from any certificate
furnished or to be furnished hereunder.
ARTICLE VII
COVENANTS
7.1 Tax Free
Reorganization.
It is intended by the parties that the
Reorganization will constitute a reorganization within the meaning of Section
368 of the Internal Revenue Code of 1986, as amended, and the parties agree that
if modification of the terms of this Agreement in a non-material
manner to attain such qualification is necessary, they will negotiate in good
faith to make such required modifications.
7.2 Finders
Fee.
In the event that any broker or finder
is entitled to be paid a fee in connection with the transactions
contemplated by this Agreement, any such fee shall be paid after the Closing and
shall not be deemed to be a liability of the FSH prior to the
Closing
ARTICLE VIII
MISCELLANEOUS
8.1 Specific
Performance.
Each of the parties hereto acknowledges and agrees
that the other parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties agrees that the other parties
shall be entitled, without the necessity of pleading or proving irreparable harm
or lack of an adequate remedy at law, to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof. Any such claim for specific performance or other
equitable relief shall be brought and determined in the appropriate federal or
state court in the State of New York located in New York City and in no other forum. The Parties
hereby irrevocably submit to the jurisdiction of any such New York state court
or federal court in connection with such claim for a specific performance or
other equitable relief.
8.2 Miscellaneous.
(a) Public
Announcement. Until the Closing, FSH shall
not make or issue, or cause to be made or issued, any announcement or written
statement concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public without the prior consent of Eagle Oil except, as determined
by FSH, to be required by law.
(b) Further
Assurances. At
any time, and from time to time, after the Closing Date, each party will execute
such additional instruments and take such action as may be reasonably
requested by the other
party to confirm or perfect title to any property transferred hereunder or
otherwise to carry out the intent and purposes of this
Agreement.
(c) Waiver. Any failure on the part of
any party hereto to comply with any of its obligations, agreements or conditions hereunder
may be waived in writing by the party to whom such compliance is
owed.
(d) Amendment. This Agreement may be
amended only in writing as agreed to by all parties hereto.
(e) Notices. All notices and other
communications hereunder
shall be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first class registered or certified mail, return
receipt requested to the following addresses:
To FSH:
To Eagle Oil:
To Seller:
(f) Headings. The section and subsection
headings in this Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(g) Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
(h) Governing
Law. This
Agreement shall be construed and enforced in accordance with the laws of the
State of New York.
(i) Binding
Effect. This
Agreement shall be binding upon the parties hereto and inure to the benefit of
the parties, their respective heirs, administrators, executors, successors and
assigns.
(j) Entire
Agreement. This
Agreement and the attached Exhibits constitute the entire agreement of
the parties covering everything agreed upon or understood in the
transaction. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution
hereof.
(k) Severability. If any part of this
Agreement is deemed to be unenforceable the balance of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have
executed this Agreement the day and year first above
written.
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Xxxx-Xxxxxxx Holdings,
Inc.
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By: /s/ Xxx Xxxx
Spoleti
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Title:
President
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Eagle Oil Holding
Company
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By: /s/ Xxxxx
Xxxxxx
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Title:
President
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Eagle Environmental Technology,
Inc
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By: /s/ Xxxxx Xxxxxx
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Title:
President
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