STOCK PURCHASE AND REORGANIZATION AGREEMENT
Exhibit
10.1
REORGANIZATION
AGREEMENT
This Stock Purchase and Reorganization
Agreement (hereinafter the "Agreement") is made and entered into as of September 25, 2009, by and among
CaseyCorp Enterprises, Inc., a Nevada corporation (hereinafter "CaseyCorp"),
XXXxxxXxxx.xxx, Inc. (“GoldCorp”) and the stockholders of GoldCorp
identified on Exhibit ‘A” hereto (collectively, the “Stockholders”). The Stockholders are all the stockholders of
GoldCorp.
AGREEMENT
In consideration of the terms hereof,
the parties hereto agree as follows:
ARTICLE I - PURCHASE AND SALE OF
STOCK
1.1 Transfer of
Stock
Subject to the terms and conditions
hereof, on the Closing Date
(as defined below), the Stockholders shall sell, convey, transfer, assign and
deliver to CaseyCorp, and CaseyCorp shall purchase from the Stockholders, all of
the issued and outstanding common shares of GoldCorp, no par value (the
“GoldCorp Stock”) in exchange for the Purchase Price set
forth in Section 1.4 below.
1.2 The
Closing
The closing of this Agreement (the
“Closing”) shall occur on September 25, 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 GoldCorp Stock:
(a) The Stockholders shall
deliver to CaseyCorp certificates representing all of the GoldCorp 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) CaseyCorp shall deliver the
consideration of the Purchase Price as set forth in Section 1.4
below.
(c) GoldCorp, the Stockholders and
CaseyCorp 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 GoldCorp Stock (the
“Purchase
Price”) shall be 5,625,000
shares of CaseyCorp common stock, $0.0001 par value (the “Consideration Shares”). The Consideration Shares will be
allocated among the Stockholders in proportion to their holdings of GoldCorp
immediately prior to the Closing.
1.5 Assistance in
Consummation of the Purchase and Sale of Stock
The Stockholders, GoldCorp and CaseyCorp shall
provide all reasonable assistance to, and shall cooperate with, each other to
bring about the consummation of the purchase and sale of the GoldCorp 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
GOLDCORP AND THE
STOCKHOLDERS
GoldCorp and the Stockholders jointly
and severally represent and warrant to CaseyCorp, as of the date of this
Agreement and as of the
Closing, all as follows in this Article II:
(a) Each of the Stockholders is the sole and
registered owner of that number of shares of the Stock set forth opposite such
Stockholder’s name on Exhibit A with good title
thereto, free and clear of
any Encumbrance.
(b) Immediately prior to
the Closing, the outstanding capitalization of GoldCorp shall consist
of 100 shares of GoldCorp Common Stock. The GoldCorp Stockholders listed on the
attached Exhibit "A" are the sole record and beneficial owners of the issued and
outstanding common stock of GoldCorp. The shares of GoldCorp Common Stock are
free from claims, liens, or other encumbrances, and at the Closing Date said
GoldCorp Stockholder will have good title and the unqualified right to transfer and dispose of such shares
GoldCorp Common Stock.
(c) GoldCorp has no outstanding or
authorized capital stock, warrants, options or convertible
securities.
(d) The GoldCorp audited financial
statements for the period from its inception through December 31, 2008 (the
“GoldCorp Audited Financial
Statements”) are true and
accurate, in accordance with the books and records of GoldCorp, and present
fairly in all material respects the financial position and results of operations
of GoldCorp 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 GoldCorp
have been made available to CaseyCorp, and such books and records completely and
fairly record in all material respects GoldCorp’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 GoldCorp Audited 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 GoldCorp as
reflected in the GoldCorp Audited Financial Statements. GoldCorp has good
title to all assets shown on the GoldCorp
Audited 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 GoldCorp Audited Financial
Statements, there have not been any material adverse changes in the financial
position of GoldCorp except changes arising in the ordinary course of business,
which changes will in no event materially and adversely affect the financial position of
GoldCorp.
(f) GoldCorp is not a party to any material
pending litigation or, to its best knowledge, any governmental investigation or
proceeding, not reflected in the GoldCorp Financial Statements, and to its best
knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against GoldCorp.
(g) GoldCorp 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
GoldCorp.
(h) GoldCorp 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) GoldCorp has not materially breached any
material agreement to which it is a party. GoldCorp has previously
given CaseyCorp copies or access thereto of all material contracts, commitments
and/or agreements to which GoldCorp is a party including all relationships or
dealings with related parties or affiliates.
(j) GoldCorp has no
subsidiaries.
(k) GoldCorp has made all material corporate
financial records, minute books, and other corporate documents and records
available for review to present management of CaseyCorp 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
GoldCorp is a party and has been duly authorized by all appropriate and
necessary corporate action under other applicable law and GoldCorp,
to the extent required, has obtained all necessary approvals or consents
required by any agreement to which GoldCorp is a party.
(m) All disclosure information provided by
GoldCorp which is to be set forth in disclosure documents of CaseyCorp or
otherwise delivered to CaseyCorp by GoldCorp for use in connection with the
transaction described herein is true, complete and accurate in all material
respects.
ARTICLE III - REPRESENTATIONS AND
WARRANTIES
OF CASEYCORP.
Except as is otherwise described in the
applicable Schedules, CaseyCorp represents and warrants to CaseyCorp and the
Stockholders, 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 GoldCorp Stockholders hereunder will, when so issued and delivered,
constitute, duly authorized, validly and legally issued shares of
CaseyCorp common stock,
fully-paid and non-assessable.
(b) CaseyCorp 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 CaseyCorp. 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 CaseyCorp 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 CaseyCorp 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
CaseyCorp.
(c) CaseyCorp has delivered to GoldCorp a
true and complete copy of Form 10-K for the period ending December 31, 2008 and
its Form 10-Q for the periods ended March 31, 2009 and June 30,
2009 (the "CaseyCorp Financial Statements"). The CaseyCorp 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 CaseyCorp 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
CaseyCorp as of the dates thereof and the results of its operations and changes
in financial position for the periods then ended.
(d) Since December 31, 2008, there have not
been any material adverse changes in the financial condition of
CaseyCorp.
(e) CaseyCorp 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 CaseyCorp Financial Statements or otherwise
disclosed herein, and there are no lawsuits, claims, assessments,
investigations, or similar matters, against or affecting CaseyCorp, its
management or its properties. CaseyCorp has complied in all material
respects with all laws, statutes, ordinances, regulations, rules, decrees or
orders applicable to it.
(f) CaseyCorp 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) CaseyCorp 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
CaseyCorp, and has paid or made adequate provision in the CaseyCorp 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. CaseyCorp 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 CaseyCorp 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. CaseyCorp
has not received notice of any actions, suits, proceedings, investigations or
claims pending or threatened against CaseyCorp in respect of any taxes nor are
any matters relating to any taxes under discussion with any governmental
authority.
(h) Except as disclosed in
CaseyCorp’s SEC filings, 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
CaseyCorp, except as
contemplated in this Agreement and there exist no liens or other securities
interests in any assets of CaseyCorp.
(i) The corporate financial records, minute
books, and other documents and records of CaseyCorp have been made available
to GoldCorp prior to the
Closing, shall be delivered to new management of CaseyCorp 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 CaseyCorp.
(j) CaseyCorp has not breached, nor is there any
pending, or to the knowledge of management, any threatened claim that CaseyCorp
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 CaseyCorp is subject. CaseyCorp 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 CaseyCorp all relationships or dealings with related parties or
affiliates.
(k) CaseyCorp common stock is currently
approved for quotation on
the OTC Bulletin Board under the symbol "CCPR" 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 CaseyCorp
pursuant to the Securities Act of 1934, as
amended. CaseyCorp has not been informed, and has no reason to believe, that its
common stock will be delisted or suspended by FINRA. CaseyCorp 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 CaseyCorp
which has been provided to GoldCorp or otherwise disclosed in connection with
the transactions contemplated herein, is true, complete and accurate in all
material respects.
CaseyCorp has provided to GoldCorp all material information regarding
CaseyCorp.
(m) Immediately prior to
the Closing, the outstanding capitalization of CaseyCorp shall
consist of no more than 16,875,000 shares of common stock and 1,000 shares of Series A preferred
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 CaseyCorp, (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 CaseyCorp 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 CaseyCorp 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 CaseyCorp.
(o) CaseyCorp 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.
(r) All disclosure information provided by
CaseyCorp which was delivered to GoldCorp for use in connection with the
transaction described herein is true, complete and accurate in all material
respects.
(s) As of the Closing, including the
outstanding capitalization of CaseyCorp shall be as follows:
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Common
Stock
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Pre-Closing Stockholders
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16,875,000
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Former EZSell Gold, Inc.
Stockholders
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5,625,000
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Total
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22,500,000
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Series A Preferred
Stock
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Total
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1,000
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions Precedent
to the Obligations of GoldCorp and The GoldCorp
Stockholders.
All obligations of GoldCorp 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 CaseyCorp
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) CaseyCorp 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, CaseyCorp
shall have delivered to GoldCorp certified copies of resolutions of the board of
directors of CaseyCorp 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
GoldCorp's nominee to the Board of Directors of CaseyCorp and all matters
outlined herein.
(d) At the Closing, all instruments and
documents delivered to GoldCorp and GoldCorp Stockholders pursuant to the
provisions hereof shall be reasonably satisfactory to legal counsel for
GoldCorp.
4.2 Conditions Precedent
to the Obligations of CaseyCorp.
All obligations of CaseyCorp 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
GoldCorp and the GoldCorp Stockholders 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) GoldCorp 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) GoldCorp will deliver, or will cause to be
delivered, to CaseyCorp the following:
(i) a certificate executed by
the President and Secretary of GoldCorp to the effect that all representations
and warranties made by GoldCorp under this Agreement are true and correct as of the Closing, the same as
though originally given to CaseyCorp on said date;
(ii) such other instruments,
documents and certificates, if any, as are required to be delivered pursuant to
the provisions of this Agreement;
(iii) certified copies of resolutions adopted by the
directors of GoldCorp authorizing this transaction;
(iv) GoldCorp’s certified audit for the period ended
December 31, 2008; and
(v) all other items, the
delivery of which is a condition precedent to the obligations of GoldCorp as set forth
herein.
(b) CaseyCorp will deliver or cause to
be delivered to GoldCorp:
(i) stock certificates
representing the Consideration Shares to be issued as the Purchase
Price;
(ii) a certificate of the
President of CaseyCorp, to
the effect that all representations and warranties of CaseyCorp made under this
Agreement are true and correct as of the Closing, the same as though originally
given to GoldCorp on said date;
(iii) certified copies of
resolutions adopted by CaseyCorp’s board of directors authorizing the
transaction contemplated hereunder and all related matters described herein;
and
(iv) such other instruments
and documents as are required to be delivered pursuant to the provisions of this
Agreement;
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification.
For a period of one year from the
Closing, CaseyCorp agrees to indemnify and hold harmless GoldCorp and the
GoldCorp Shareholders, and GoldCorp agrees to indemnify and hold harmless
CaseyCorp, 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 ’34 Act
Compliance.
CaseyCorp shall continue to comply with
all of the provisions applicable to it of the Securities Exchange Act of 1934,
as amended.
ARTICLE VIII
MISCELLANEOUS
8.1 Miscellaneous.
(a) Public
Announcement. Until the Closing,
CaseyCorp 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 GoldCorp
except, as determined by CaseyCorp, 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 CaseyCorp:
To GoldCorp:
To the Stockholders:
(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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By: /s/ Xxxxxx
Xxxxxxxx
Title:
President
XXXxxxXxxx.xxx,
Inc.
By: /s/ Xxxxxx
Xxxxxxxx
Title:
President
The
Stockholders
By: /s/ Xxxxxx
Xxxxxxxx
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