Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - American Retail Group, Inc. | f8k102609_resourceacq.htm |
| EX-10.2 - ASSET PURCHASE AGREEMENT - American Retail Group, Inc. | f8k102609ex10ii_resourceacq.htm |
Exhibit
10.1
AGREEMENT
AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER, dated as of October 27, 2009 (the "Agreement"), between DK
Investors, Inc., a New York corporation (the "Corporation"), and Resource
Acquisition Group, Inc., a Nevada corporation (the "Subsidiary").
WITNESSETH:
WHEREAS,
the Subsidiary desires to acquire all the assets, and to assume all of the
liabilities and obligations, of the Corporation by means of a merger of the
Corporation with and into the Subsidiary, with the Subsidiary being the
surviving corporation (the "Merger");
WHEREAS,
the Subsidiary is a wholly-owned subsidiary of the Corporation;
WHEREAS,
Section 92A.200 of the Nevada Revised Statutes ("Nevada Law") and Section 907 of
the New York Business Corporation Law (the "NYBCL"), authorize the merger of a
New York corporation into a Nevada corporation;
WHEREAS,
the Subsidiary shall be the surviving entity (the "Surviving Corporation") and
continue its existence as a Nevada corporation; and
WHEREAS,
the stockholders and Board of Directors of the Corporation and the Subsidiary
have approved this Agreement and the consummation of the Merger.
NOW
THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE
MERGER
SECTION
1.01. The
Merger.
(a) At the
Effective Time (as defined below), the Corporation shall be merged, the separate
existence of the Corporation shall cease and the Surviving Corporation shall be
the surviving entity and continue its existence as a Nevada
corporation.
(b) The
Merger shall become effective on the date that a Certificate of Merger with
respect to the Merger, substantially in the form attached hereto as Exhibit A, is
accepted for filing by the Office of the Secretary of State of Nevada (the
"Effective Time") and all other filings or recordings required by the Nevada
Revised Statutes and the New York Business Corporation Law in connection with
the Merger are made.
SECTION
1.02. Merger
Consideration.At the
Effective Time, the holders of the Corporation's common stock, par value $0.0001
per share which shall be issued and outstanding immediately prior to the
Effective Time shall be converted into issued and outstanding shares of the
Surviving Corporation's common stock, par value $0.0001 per share at the
exchange ratio of one (1) share of the Surviving Corporation's common
1
stock for
every two hundred (200) shares of the Corporation's common stock, and from and
after the Effective Time, the holders of all said issued and outstanding shares
of stock of the Corporation shall automatically become holders of shares of the
Surviving Corporation, whether or not certificates representing said shares are
then issued and delivered.
ARTICLE
II THE SURVIVING
CORPORATION
SECTION
2.01. By-Laws;
Certificate of Incorporation. The
certificate of incorporation of the Subsidiary, as in effect immediately prior
to the
Effective Time, shall be the certificate of incorporation of the Surviving
Corporation unless and until thereafter amended in accordance with its terms and
applicable law. The
By-Laws of the Subsidiary as in effect immediately prior to the Effective Time
shall be the By-Laws of the Surviving Corporation unless and until thereafter
amended in accordance with applicable law.
At the
Effective Time the name of the Surviving Corporation shall be Resource
Acquisition Group, Inc.
ARTICLE
III TRANSFER AND
CONVEYANCE
OF ASSETS AND
ASSUMPTION
OF LIABILITIES
SECTION
3.01. Transfer,
Conveyance and Assumption. At the
Effective Time, the Subsidiary shall continue in existence as the Surviving
Corporation, and without further transfer, succeed to and possess all of the
rights, privileges and powers of the Corporation, and all of the assets and
property of whatever kind and character of the Corporation shall vest in the
Surviving Corporation without further act or deed; thereafter, the Surviving
Corporation, shall be liable for all of the liabilities and obligations of the
Corporation, and any claim or judgment against the Corporation may be enforced
against the Surviving Corporation in accordance with Section 92A.200 of the
Nevada Law and Section 907 of the NYBCL.
SECTION
3.02. Further
Assurances. If at any
time the Subsidiary shall consider or be advised that any further assignment,
conveyance or assurance is necessary or advisable to vest, perfect or confirm of
record in the Surviving Corporation the title to any property or right of the
Corporation, or otherwise to carry out the provisions hereof, the proper
representatives of the Corporation as of the Effective Time shall execute and
deliver any and all proper deeds, assignments, and assurances and do all things
necessary or proper to vest, perfect or convey title to such property or right
in the Surviving Corporation, and otherwise to carry out the provisions
hereof.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Authorized
Person. John C.
Leo, Director, President and Chief Executive Officer of the Corporation, shall
be authorized, at such time at his sole discretion as he deems appropriate to
execute, acknowledge, verify, deliver, file and record, for and in the name of
the Corporation any and all documents and instruments including, without
limitation, the certificate of incorporation of the Surviving Corporation and
the Certificate of Merger, and shall
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do and
perform any and all acts required by applicable law which the Surviving
Corporation deems necessary or advisable, in order to effectuate the
Merger.
SECTION
4.02. Survival of Representations
and Warranties. The
representations and warranties and agreements contained in any certificate or
other writing delivered pursuant hereto shall not survive the Effective Time or
the termination of this Agreement.
SECTION
4.03. Amendments; No
Waivers,
(a) Any
provision of this Agreement may, subject to applicable law, be amended or waived
prior to the Effective Time if, and only if, such amendment or waiver is in
writing and signed by the Corporation and the Subsidiary.
(b) No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION
4.04. Integration.
All prior
or contemporaneous agreements, contracts, promises, representations, and
statements, if any, between the Subsidiary and the Corporation, or their
representatives, are merged into this Agreement, and this Agreement shall
constitute the entire understanding between the Subsidiary and the Corporation
with respect to the subject matter hereof.
SECTION
4.05. Successors and
Assigns. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, provided that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other party
hereto.
SECTION
4.06. Governing
Law. This
Agreement shall be construed in accordance with and governed by the internal
laws of the State of Nevada, without reference to principles of conflicts of
law
SECTION
4.07. Counterparts;
Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received the counterpart hereof signed by the other party
hereto.
[Signature
Page Follows]
[SIGNATURE
PAGE TO AGREEMENT AND PLAN OF MERGER]
IN
WITNESS WHEREOF, the undersigned have executed this instrument as of the date
first written above.
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DK
INVESTORS, INC.
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A
New York Corporation
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By:
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/s/ John
C. Leo
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Name: John
C. Leo
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Title: Director,
President and CEO
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RESOURCE
ACQUISITION GROUP, INC.
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A
Nevada Corporation
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By:
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/s/ John
C. Leo
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Name: John
C. Leo
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Title: Director,
President and CEO
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EXHIBIT
A CERTIFICATE OF MERGER
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