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EXHIBIT 10.11
PLAN AND AGREEMENT OF REORGANIZATION
UNDER I.R.C. SS.368(a)(1)(D)
GLOBAL RESOURCE CORPORATION
AND
MOBILESTREAM OIL CORPORATION
THIS PLAN AND AGREEMENT OF REORGANIZATION, dated this 28th day
of
November, 2006, made by and between:
GLOBAL RESOURCE CORPORATION,, a Nevada corporation having its
principal
business office located at Bloomfield Business Park, 408 Bloomfield
Drive, Unit
3, West Berlin, New Jersey 08091 (hereinafter referred to as
"Buyer");
AND
MOBILESTREAM OIL CORPORATION (hereinafter referred to as "Seller"),
a
Delaware corporation having its principal business office located
at Bloomfield
Business Park, 408 Bloomfield Drive, Units 1 & 2, West Berlin,
New Jersey 08091
(hereinafter "Seller"): WITNESSETH THAT:
WHEREAS, Seller desires to transfer to Buyer at the Closing (as
hereinafter defined), and Buyer desires to acquire from Seller at
the Closing,
substantially all of Seller's assets, as more fully described
herein, upon and
subject to the terms and conditions contained in this Agreement;
and
WHEREAS, it is intended by the parties that the transaction qualify
as
a tax-free reorganization within the meaning of Section
368(a)(1)(D) of the
Internal Revenue Code of 1986, as amended (the "Code") and that for
accounting
purposes it is intended that the transaction be treated as a
"purchase";
NOW, THEREFORE, intending to be legally bound, and in consideration
of the
foregoing recitals and the mutual promises and covenants contained
herein, and
other good and valuable consideration, the receipt and sufficiency
of which are
hereby acknowledged, Buyer and Seller hereby agree as follows:
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ARTICLE I
DEFINITIONS
Definitions. In addition to the terms defined elsewhere in this
Agreement, when used in this Agreement the following capitalized
terms shall
have the meanings indicated:
"Act of Bankruptcy" when used in reference to any Person, shall
mean
the occurrence of any of the following with respect to such Person:
(a) such
Person shall have made an assignment of all or substantially all of
its assets
for the benefit of his or its creditors; (b) such Person shall have
filed a
voluntary petition in bankruptcy; (c) such Person shall have been
adjudicated
bankrupt or insolvent; (d) such Person shall have filed any
petition or answer
seeking for himself or itself any reorganization, liquidation,
dissolution or
similar relief, (e) such Person shall have sought or consented to,
or acquiesced
in, the appointment of any trustee, receiver, or liquidator of such
Person of
all or substantially all of the properties of such Person; or (f)
sixty (60)
days shall have elapsed after the commencement of an action against
such Person
seeking reorganization, arrangement liquidation, dissolution or
similar relief
without such action having been dismissed.
"Affiliate" when used in reference to any Person, shall mean any
Person
that, directly or indirectly through one or more intermediaries,
controls, is
controlled by or is under common control with the Person in
question.
"Applicable Law(s)" shall mean any applicable federal, state, local
or
foreign law, ordinance, order, regulation, rule or requirement of
any
governmental or quasi-governmental agency, instrumentality, board,
commission,
bureau or other authority having jurisdiction.
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"Assets" shall mean (i) all right, title and interest of Seller in
and
to the assets, real property, personal property,
equipment, intellectual property, software and other property of
Seller set
forth on Exhibit 1 attached hereto, (ii) all transferable net
operating losses,
capitalized expenses and research and development costs of Seller
which may
benefit the Buyer, and (iii) cash and/or cash equivalents in an
amount equal to
all cash on hand/on deposit, less only an amount not to exceed
$10,000 to be
used to pay liabilities unpaid as of Closing and not being assumed
by the Buyer.
"Material Adverse Effect" shall mean any material adverse change or
any
development involving a prospective material adverse change in or
affecting the
general affairs, business, prospects, management, financial
position,
stockholders' equity or results of operations of a Person, taken as
a whole.
"Person" shall mean any individual, corporation, partnership,
joint
venture, limited liability company, unincorporated association,
trust or other
legal entity.
"Tax Returns" shall mean all federal, state, local and foreign
tax
returns and reports, including by way of illustration and not of
limitation,
income tax returns, payroll tax returns, unemployment tax returns,
sales and use
tax returns, wage tax returns, withholding tax returns and
franchise tax
returns.
ARTICLE II
SALE AND TRANSFER OF ASSETS AND ASSUMPTION OF CERTAIN
LIABILITES
2.1 Transfer of Assets. Except as otherwise herein expressly set
forth,
Seller hereby agrees that at the Closing provided for in Section
4.1 hereof (the
"Closing"), Seller shall sell, assign, transfer, convey and deliver
to Buyer all
of Seller's right, title and interest in and to the Assets. Seller
represents
that the Assets, as set forth on Exhibit 1, are substantially all
of the assets
of Seller.
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2.2 Excluded Assets. Seller and Buyer understand and agree that
the
sale, assignment, transfer, conveyance and delivery specified in
Section 2.1
hereof shall not include any assets, rights or property of Seller
other than
those expressly included in the definition of Assets. Seller
represents that any
assets not set forth on Exhibit 1 are immaterial and DI MINIMUS and
that Buyer
is acquiring substantially all of the assets of Seller.
2.3 Assumed Obligations. Buyer agrees that at the Closing, Buyer
shall
assume only those specific contracts, agreements, leases,
covenants, obligations
and liabilities on the list attached hereto as Exhibit 2
(collectively, the
"Assumed Liabilities"). As of the Closing Date, Seller, as soon as
reasonably
practicable thereafter, will terminate any and all of Seller's
other (non-
assumed) contracts, leases, licenses and agreements and Seller,
shall remain
liable for any and all of its liabilities or encumbrances not
specifically
assumed by Buyer pursuant to this Section 2.3, including but not
limited to:
(a) liens and encumbrances to which the Assets are subject, or
would
have been subject to, immediately prior to Closing;
(b) any liability or obligation relating to taxes of Seller,
including
any interest or penalties related thereto;
(c) any warranty or performance liability claims relating to the
assets
which arose prior to the Closing; and
(d)
any liability or obligation of the Seller, absolute or
contingent,
known or unknown not expressly agreed to be assumed pursuant to
this Agreement.
ARTICLE III
CONSIDERATION
3.1 Assumption of Certain Liabilities and Issuance of Security
Units.
In full and complete payment for the Assets, Buyer agrees to (i)
assume the
Assumed Liabilities pursuant to Section 2.3 hereof, (ii) issue to
the Seller,
for ultimate distribution to the holders of the Seller's Common
Stock, Eleven
Million, One Hundred Forty-five Thousand, One Hundred Twenty-five
(11,145,225)
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shares of the Buyer's Common Stock (iii) issue to the Seller, for
ultimate
distribution to the holders of the Seller's 2006 Series of
Convertible Preferred
Stock, Seventy Million, Four Hundred Seventy-two Thousand, Three
Hundred
Seventy-six (70,472,376) and (iv) issue to the Seller approximately
Twenty-Seven
Million, Two Hundred Five Thousand, Eight Hundred Sixty-seven
Common Stock
Purchase Warrants to be distributed at the rate of one Warrant for
each three
shares of Common or Preferred Stock, to be called the Mobilestream
Warrants,
which Warrants shall have an initial exercise price, subject to
reduction by the
Buyer's Board of Directors from time to time and at any time, of
Four Dollars
and Seventy-Five Cents ($4.75), which Warrants shall not be
exercisable until
and unless there is an effective Registration Statement under the
Securities Act
of 1933 for the underlying shares of Common Stock and which
Warrants shall have
a term ending on December 31, 2007. The Buyer's Common Stock, 2006
Series of
Convertible Preferred Stock, and Common Stock Purchase Warrants
shall be issued
in the name of and paid to Seller.
3.2 INVESTMENT REPRESENTATIONS. Seller acknowledges, agrees
and represents that:
(a) It has been advised that none of the shares of Buyer's
Common
Stock, none of the shares of Buyer's 2006 Series of Convertible
Preferred Stock,
and none of the Buyer's Common Stock Purchase Warrants being
acquired by it
hereunder have been registered under the Securities Act of 1933
(the "1933
Act").
(b) All of the securities of Buyer being acquired hereunder are
being,
and will be, acquired and held for investment, not for resale or
distribution to
the public and not for the purpose of effecting or causing to be
effected a
public offering of such securities and, further, that none of such
securities
will be sold, transferred, assigned or disposed of except to a
liquidating trust
for the benefit of Seller's shareholders, in accordance with the
1933 Act and
the Rules and Regulations of the Securities and Exchange Commission
promulgated
thereunder.
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(c) It has been advised and is aware of the fact, that by reason of
the
foregoing investment representations and restrictions upon
transfer: (i) the
shares of the Buyer's Common Stock, the shares of the Buyer's 2006
Series of
Convertible Preferred Stock, and the Buyer's Common Stock Purchase
Warrants must
be held indefinitely unless they are subsequently registered under
the 1933 Act
or an exemption from such registration is available; (ii) if Rule
144 of the
Rules and Regulations promulgated by the SEC is applicable to any
future routine
sales of any such securities, such sales can be made only in
limited amounts in
accordance with the terms and conditions of that Rule; (iii) in the
case of
securities to which that Rule is not applicable, compliance with
some applicable
disclosure exemption, if any be available, will be required; (iv)
all of the
certificates for the shares of Buyer's Common Stock and its Common
Stock
Purchase Warrants will bear a legend restricting transfer thereof;
and (v) the
Transfer Agent of Buyer's Common Stock will be given
"stop-transfer"
instructions so as to prevent any illegal transfer of such shares
or warrants.
(d) It has relied only and exclusively upon its own investigation
into
Buyer and its financial condition for purposes of deciding to enter
into and
close this Agreement and to accept shares of Buyer's Common Stock
and 2006
Series of Convertible Preferred Stock and Common Stock Purchase
Warrants in
exchange for its Assets. It has not relied upon any oral or
written
representation made by Buyer or any of its officers or directors
or
representatives of Buyer and that no representation, or statements
shall survive
the Closing with the sole exception of the representations and
warranties
contained in this Agreement.
(e) It has received the audited financial statements of the Buyer
for
the periods ended March 31, 2005 and March 31, 2006, as well as the
Buyer's
10-KSB for the fiscal year ended March 31, 2006 and the Buyer's
10-QSB for the
fiscal quarter ended September 30, 2006, and Buyer's 8-K for
September 22, 2006,
and has had full opportunity to review and inspect all books and
records of
Buyer.
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3.3 Liquidation of Seller; Liquidating Trust. Seller
acknowledges
awareness that (i) following the transfer of the Assets it is
required by the
Code to dissolve and in connection therewith to distribute the
Buyer's
securities to its shareholders, (ii) the securities being issued
have not been
registered with the Securities and Exchange Commission and cannot
be distributed
without either an effective registration statement or an eligible
exemption from
such registration, and (iii) it must use a liquidating trust to
hold the Buyer's
securities for the benefit of its shareholders, pending the ability
to make a
legal distribution thereof. Seller agrees to establish such a
liquidating trust
for the benefit of its shareholders and to transfer the Common
Stock and Common
Stock Purchase Warrants to such trust pending compliance by Buyer
with
Securities and Exchange Commission requirements for their
distribution.
3.4 Piggy-back Registration Rights. If, during a period of twelve
(12)
months following Closing, Buyer shall file a registration statement
under the
Securities Act of 1933 with the Securities and Exchange Commission,
it shall
give at least thirty (30) days prior notice of such filing to the
trustees of
the liquidating trust. If the trustees so elect, and give written
notice to
Buyer within five (5) business days after notice from Buyer, Buyer
shall include
such shares of its C ommon Stock, its 2006 Series of Convertible
Preferred
Stock, its Common Stock Purchase Warrants, and the Common Stock
underlying the
Warrants in the registration statement as the trustees shall
elect.
3.5 Demand Registration Rights. Unless the shares have been
registered
pursuant to Section 3.4 during the initial twelve month period, at
any time
thereafter, the trustees of the liquidating trust may serve written
demand on
Buyer that the shares held by the trust and the shares issuable
upon exercise of
the warrants held by the trust be registered. Buyer shall, upon
receipt of such
a demand, in good faith, and with all deliberate speed, effect the
filing of a
registration statement for such shares and shall prosecute such
registration
statement to effectiveness.
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ARTICLE IV
CLOSING AND CONDITIONS OF CLOSING
4.1 Closing. The Closing shall occur upon the later of (i) the
close of
business on December 31, 2006 or (ii) as soon thereafter as
practicable
following the satisfaction or waiver of all of the Conditions to
Closing set
forth in Section 4.2 of this Agreement (the "Closing Date").
4.2 Conditions to Closing. The obligations of Seller to sell the
Assets
and Buyer to purchase the Assets are subject to the satisfaction of
the
following conditions precedent at or prior to the Closing (unless
waived in
writing by the Parties prior to Closing or by the act of
Closing):
(a) Documents. Buyer shall have received each of the following
items:
(i) This Agreement, duly executed by Seller;
(ii) Any amendment, consent or waiver from any Person necessary
to
fully give binding effect to this Agreement, including but not
limited to
consents to the assignment of contracts and leases, duly executed
by Seller and
such Persons (the "Consents") (each party hereto acknowledges that
this
condition is for the benefit of both Buyer and Seller;
(iii) A Bill of Sale duly executed by Seller; (iv) Such
certificates,
documents of title and other instruments of conveyance and
transfer, if any, as
shall be effective to vest in Buyer good and marketable title in
and to the
Assets free and clear of all encumbrances; and
(v) An Officer's Certificate, duly executed by an officer of
Seller.
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(b) Documents. Seller shall have received each of the following
items:
(i) This Agreement, duly executed by Buyer;
(ii) An Assumption Agreement duly executed by Buyer;
(iii) An Officer's Certificate du
