AGREEMENT AND PLAN OF MERGER AND REORGANIZATION BY AND AMONG TELIPHONE INC. AND OSK II ACQUISITION CORP. AND OSK CAPITAL II CORP.
BY
AND AMONG
TELIPHONE
INC.
AND
OSK
II ACQUISITION CORP.
AND
OSK
CAPITAL II CORP.
This
AGREEMENT AND PLAN OF MERGER AND
REORGANIZATION
(the
"Agreement") is made and entered into as of APRIL 28, 2005, by and among OSK
CAPITAL II, a Nevada corporation ("OSK"), OSK II ACQUISITION CORP., a Florida
corporation ("Merger Sub") and wholly owned subsidiary of OSK, and TELIPHONE,
a
Canadian corporation ("Company").
RECITALS
|
A.
|
The
Boards of Directors of Company, OSK and Merger Sub believe it is
in the
best interests of their respective companies and the stockholders
of their
respective companies that Company and Merger Sub combine into a single
company through the statutory merger of Merger Sub with and into
Company
(the "Merger") and, in furtherance thereof, have approved the Merger.
|
|
B.
|
Pursuant
to the Merger, among other things, the outstanding shares of Company
Common Stock ("Company Common Stock"), shall be converted into the
right
to receive shares of OSK Common Stock ("OSK Common Stock"), at the
rate
set forth herein.
|
|
C.
|
Company,
OSK and Merger Sub desire to make certain representations and warranties
and other agreements in connection with the Merger.
|
|
D.
|
The
parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal
Revenue
Code of 1986, as amended (the "Code"), and to cause the Merger to
qualify
as a reorganization under the provisions of Sections 368 of the Code,
so
that such exchange will constitute a tax-free share exchange under
the
Code.
|
NOW,
THEREFORE,
in
consideration of the mutual covenants and premises contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby conclusively acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE
1
THE
MERGER
| 1.1. |
THE
MERGER.
At the Effective Time (as defined in Section 1.2) and subject to
and upon
the terms and conditions of this Agreement including the exchange
of
shares between the Company, OSK and Merger Sub, Merger Sub shall
be merged
with and into OSK, the Company shareholders shall receive shares
of Common
Stock of OSK, the Merger Sub shall receive all the Common Stock of
the
Company, the separate corporate existence of Merger Sub shall cease,
the
Company shall survive as a wholly owned
|
2
subsidiary
of OSK and OSK shall continue as the surviving corporation.
OSK as the surviving corporation after the Merger is hereinafter sometimes
referred to as the "Surviving Corporation."
| 1.2. |
CLOSING;
EFFECTIVE TIME.
The closing of the transactions contemplated hereby (the "Closing")
shall
take place as soon as practicable after the satisfaction or waiver
of each
of the conditions set forth in Article VI hereof or at such other
time as
the parties hereto agree (the "Closing Date"). The Closing shall
be
held at the offices of Teliphone Inc. office, located at 0000,
Xxxx xx Xxxxxx Xxxx Xxxxxx 0000 Xxxxxxxx (Québec) or
at such other location as the parties hereto agree. Simultaneously
with or
as soon as practicable following the Closing, the parties hereto
shall
cause the Merger to be consummated by filing of a Certificate of
Merger
(“Certificate of Merger”) with each respective parties jurisdiction, in
accordance with the relevant provisions of each respective parties
jurisdiction (the time of such filing being the "Effective Time").
|
| 1.3. |
EFFECT
OF THE MERGER.
At the Effective Time, the effect of the Merger shall be as provided
in
this Agreement, the Certificate of Merger and the applicable provisions
of
Florida and Nevada Law. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time, all the property, rights,
privileges, powers and franchises of Company and Merger Sub shall
vest in
the Surviving Corporation, and all debts, liabilities and duties
of
Company and Merger Sub shall become the debts, liabilities and duties
of
the Surviving Corporation, with the Company shall survive as a wholly
owned subsidiary of OSK.
|
| 1.4. |
SURVIVAL
OF THE COMPANY.
At the Effective Time, the Company shall survive as a wholly owned
subsidiary of OSK and the Articles of Incorporation of Company shall
remain the Articles of Incorporation of the Company and the separate
existence of Merger Sub shall
cease.
|
| 1.5. |
DIRECTORS
AND OFFICERS.
At the Effective Time, the directors of the Company may be appointed
as
the directors of the Surviving Corporation, in each case until their
successors are elected or appointed and qualified or until their
earlier
resignation or removal. The officers of the Company may be appointed
as
officers of the Surviving Corporation, until their respective successors
are duly appointed and qualified or until their earlier resignation
or
removal.
|
| 1.6. |
EFFECT
ON CAPITAL STOCK.
By virtue of the Merger and without any action on the part of Merger
Sub,
Company or the holders of any of the following securities:
|
| 1.6.1.1. |
CONVERSION
OF COMPANY COMMON STOCK.
At the Effective Time, (i) all of the shares of Company Common Stock
issued and outstanding immediately prior to the Effective Time will
be
converted automatically into the right to receive an aggregate of
twenty-five million shares of OSK Common Stock (the "Exchange Ratio")
(the
“Merger Consideration”); and
|
3
(ii)
Xxxxxxx Hills Trading Corporation and or it’s
nominee will receive 2,000,000 restricted shares of OSK Common Stock. Each
certificate evidencing shares represented by the Merger Consideration issued
pursuant to this Section 1.6.1 shall bear the following legend (in addition
to
any legend required under applicable state securities laws):
"THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE CORPORATION RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO
THE
CORPORATION STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION
IS
EXEMPT FROM REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH
ACT."
| 1.6.2. |
CAPITAL
STOCK OF MERGER SUB.
At the Effective Time, each share of common stock, $.01 par value,
of
Merger Sub ("Merger Sub Common Stock") issued and outstanding immediately
prior to the Effective Time shall be converted into and exchanged
for one
validly issued, fully paid and nonassessable share of common stock
of the
Company, and the Company shall be a wholly owned subsidiary of
the
OSK.
Each stock certificate of Merger Sub evidencing ownership of any
such
shares shall continue to evidence ownership of such shares of capital
stock of the Company.
|
| 1.6.3. |
NO
FRACTIONAL SHARES.
No fractional shares of OSK Common Stock shall be issued in connection
with the Merger, and no certificates or scrip for any such fractional
shares shall be issued. Any holder of the Company Common Stock who
would
otherwise be entitled to receive a fraction of a share of OSK Common
Stock
shall, in lieu of such fraction of a share, be rounded up to the
nearest
whole number of shares of OSK Common Stock.
|
| 1.7. |
TAX
CONSEQUENCES.
It is intended by the parties hereto that the Merger shall constitute
a
reorganization within the meaning of Section 368 of the Code.
|
4
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF COMPANY
In
this
Agreement, any reference to any event, change, condition or effect being
"material" with respect to any person means any material event, change,
condition or effect related to the condition (financial or otherwise),
properties, assets (including intangible assets), liabilities, business,
operations or results of operations of such person and its subsidiaries, taken
as a whole. In this Agreement, any reference to a "Material Adverse Effect"
with
respect to any person means any event, change or effect that is materially
adverse to the condition (financial or otherwise), properties, assets,
liabilities, business, operations or results of operations of such person and
its subsidiaries, taken as a whole.
In
this
Agreement, any reference to a party's "Knowledge" means such party's actual
knowledge after reasonable inquiry of executive officers and directors (within
the meaning of Rule 405 under the Securities Act of 1933, as amended
("Securities Act")).
The
Company represents and warrants to OSK and Merger Sub as follows:
| 2.1 |
ORGANIZATION,
STANDING AND POWER.
The Company is a corporation duly organized, validly existing and
in good
standing in the province of Québec, Canada, and no certificate of
dissolution has been filed under the laws of its jurisdiction of
organization. The Company has no subsidiaries. The Company has the
power
to own its properties and to carry on its business as now being conducted
and as presently proposed to be conducted and is duly authorized
and
qualified to do business and is in good standing in each jurisdiction
in
which the failure to be so qualified and in good standing would have
a
Material Adverse Effect on Company. The Company is not in violation
of any
of the provisions of its charter or bylaws or equivalent organization
documents.
|
| 2.2 |
AUTHORITY.
Company has all requisite corporate power and authority to enter
into this
Agreement and to consummate the transactions contemplated hereby
and
thereby. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of Company,
subject only to the adoption of this Agreement by Company's stockholders
holding a majority of the outstanding shares of Company Common Stock.
This
Agreement has been duly executed and delivered by Company and constitutes
the valid and binding obligation of Company enforceable against Company
in
accordance with its terms, except as enforceability may be limited
by
bankruptcy and other laws affecting the rights and remedies of creditors
generally and general principles of equity. The execution and delivery
of
this Agreement by Company does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result
in any
violation of, or default under (with or without notice or lapse of
time,
or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit under (i) any
provision of the Company Articles of Incorporation or Bylaws of Company,
as amended, or (ii) any mortgage, indenture, lease, contract or other
agreement or instrument, permit, concession,
|
5
franchise,
license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to the Company or any of its properties or
assets.
No consent, approval, order or authorization of, or registration, declaration
or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality ("Governmental Entity") is required
by
or with respect to Company in connection with the execution and delivery
of this
Agreement by Company or the consummation by Company of the transactions
contemplated hereby, except for (i) the filing of the Certificate of Merger
as
provided herein.
| 2.3 |
ABSENCE
OF CERTAIN CHANGES.
The
Company has no liabilities or obligations (whether known or unknown,
absolute, accrued, contingent or otherwise and whether due
or to become due) other than those incurred
in connection with the execution of this
Agreement.
|
| 2.4 |
COMPLIANCE
WITH LAWS.
The Company has complied with and is not in violation of, and have
not
received any notices of violation with respect to, any federal, state,
local or foreign statute, law or regulation with respect to the conduct
of
its business, or the ownership or operation of its business, except
for
such violations or failures to comply as would not be reasonably
expected
to have a Material Adverse Effect on Company.
|
| 2.5 |
BROKERS'
AND FINDERS' FEES.
The Company has not incurred, nor will it incur, directly or indirectly,
any liability for brokerage or finders' fees or agents' commissions
or
investment bankers' fees or any similar charges in connection with
this
Agreement or any transaction contemplated hereby.
‘
|
| 2.6 |
BOARD
APPROVAL.
The Board of Directors of Company has (i) approved this Agreement
and the
Merger, (ii) determined that this Agreement and the Merger are advisable
and in the best interests of the stockholders of Company and are
on terms
that are fair to such stockholders and (iii) recommended that the
stockholders of Company adopt and approve this Agreement and the
consummation of the Merger.
|
| 2.7 |
REPRESENTATIONS
COMPLETE.
None of the representations or warranties made by Company herein
or in any
Schedule hereto, including the Company Disclosure Schedule, or
certificates furnished by Company pursuant to this Agreement, when
all
such documents are read together in their entirety, contains or will
contain at the Effective Time any untrue statement of a material
fact, or
omits or will omit at the Effective Time to state any material fact
necessary in order to make the statements contained herein or therein,
in
the light of the circumstances under which made, not misleading.
All
projected, forecasted or prospective financial information provided
by
Company to OSK has been prepared in good faith on the basis of assumptions
Company believes are reasonable and supportable.
|
6
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF OSK AND MERGER SUB
OSK
and
Merger Sub represents and warrants to the Company as follows:
|
3.1
|
ORGANIZATION,
STANDING AND POWER.
OSK is a corporation duly organized in the state of Nevada and no
certificates of dissolution have been filed under the laws of its
jurisdiction of organization. OSK represents and warrants that OSK
shall
file all applicable annual reports in the State of Nevada simultaneous
with the filing of OSK’s updated reports to the Securities and Exchange
Commission. OSK has the power to own its properties and to carry
on its
business as now being conducted and as presently proposed to be conducted
and is duly authorized and qualified to do business and is in good
standing in each jurisdiction in which the failure to be so qualified
and
in good standing would have a Material Adverse Effect on OSK. OSK
and
Merger Sub are not in violation of any of the provisions of their
respective charter or bylaws or equivalent organization documents.
OSK is
the owner of all outstanding shares of capital stock of Merger Sub
and all
such shares are duly authorized, validly issued, fully paid and
nonassessable. There are no outstanding subscriptions, options, warrants,
puts, calls, rights, exchangeable or convertible securities or other
commitments or agreements of any character relating to the issued
or
unissued capital stock or other securities of any such subsidiary,
or
otherwise obligating OSK to issue, transfer, sell, purchase, redeem
or
otherwise acquire any such securities.
|
|
3.2
|
CAPITAL
STRUCTURE.
The authorized capital stock of OSK consists of 125,000,000 shares
of
common stock, $.001 par value. The shares of OSK Common Stock to
be issued
pursuant to the Merger will be duly authorized, validly issued, fully
paid, and non-assessable, free of any liens or encumbrances imposed
by OSK
or Merger Sub. There are no other outstanding shares of capital stock
or
voting securities and no outstanding commitments to issue any shares
of
capital stock or voting securities after the date hereof. All outstanding
shares of OSK Common Stock are duly authorized, validly issued, fully
paid
and non-assessable and are free of any liens or encumbrances other
than
any liens or encumbrances created by or imposed upon the holders
thereof,
and are not subject to preemptive rights or rights of first refusal
created by statute, the Articles of Incorporation or Bylaws of OSK
or any
agreement to which OSK is a party or by which it is bound. There
are no
contracts, commitments or agreements relating to voting, purchase
or sale
of OSK's capital stock (i) between or among OSK and any of its
stockholders and (ii) to the best of OSK's knowledge, between or
among any
of OSK's stockholders.
|
|
3.3
|
AUTHORITY.
OSK and Merger Sub have all requisite corporate power and authority
to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized
by all
necessary corporate action on the part of OSK and Merger Sub. This
Agreement has been duly executed and delivered by
|
7
OSK
and Merger Sub and constitutes the valid and
binding obligations of OSK and Merger Sub enforceable against OSK and Merger
Sub
in accordance with its terms, except as enforceability may be limited by
bankruptcy and other laws affecting the rights and remedies of creditors
generally and general principles of equity. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated hereby
will not, conflict with, or result in any violation of, or default under (with
or without notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
benefit under
3.3.1
any
provision of the Articles of Incorporation or Bylaws of OSK, as amended,
or;
3.3.2
any
mortgage, indenture, lease, contract or other agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to OSK or its properties or assets.
No
consent, approval, order or authorization of, or registration, declaration
or
filing with, any Governmental Entity is required by or with respect to OSK
in
connection with the execution and delivery of this Agreement by OSK and Merger
Sub or the consummation by OSK and Merger Sub of the transactions contemplated
hereby, except for (i) the filing of the Certificate of Merger as provided
in
Section 1.2; (ii) the filing of a Form 8-K with the Securities and Exchange
Commission within 15 days after the Closing Date; (iii) any filings as may
be
required under applicable state securities laws and the securities laws of
any
foreign country; and (iv) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not have
a
Material Adverse Effect on OSK and would not prevent or materially alter or
delay any of the transactions contemplated by this Agreement.
|
3.4
|
ABSENCE
OF UNDISCLOSED LIABILITIES.
OSK has no material obligations or liabilities of any nature (matured
or
unmatured, fixed or contingent) other than those incurred in the
ordinary
course of business since the OSK Balance Sheet date and not reasonably
likely to have a Material Adverse Effect on OSK, and those incurred
in
connection with the execution of this Agreement.
|
|
3.5
|
LITIGATION.
There is no private or governmental action, suit, proceeding, claim,
arbitration, audit or investigation pending before any agency, court
or
tribunal, foreign or domestic, or, to the knowledge of OSK, threatened
against OSK or any of its respective properties or any of its respective
officers or directors (in their capacities as such) that, individually
or
in the aggregate, would reasonably be expected to have a Material
Adverse
Effect on OSK. There is no injunction, judgment, decree, order or
regulatory restriction imposed upon OSK or any of its assets or business,
or, to the knowledge of OSK, any of its directors or officers (in
their
capacities as such), that would prevent, enjoin, alter or materially
delay
any of the transactions contemplated by this Agreement, or that could
reasonably be expected to have a Material Adverse Effect on OSK.
|
|
3.6
|
RESTRICTIONS
ON BUSINESS ACTIVITIES.
There is no agreement, judgment,
|
8
injunction,
order or decree binding upon OSK which
has or reasonably could be expected to have the effect of prohibiting or
materially impairing any business practice of OSK, any acquisition of property
by OSK or the conduct of business by OSK.
|
3.7
|
CERTAIN
AGREEMENTS AFFECTED BY THE MERGER.
Neither the execution and delivery of this Agreement nor the consummation
of the transaction contemplated hereby will (i) result in any entitlement,
payment or benefit (including, without limitation, severance, unemployment
compensation, golden parachute, bonus or benefit under any OSK plan
or
policy or otherwise) becoming due to any current or former director
or
employee of OSK, (ii) increase the amount of any entitlements, payments
or
benefits otherwise payable by OSK, or (iii) result in the acceleration
of
the time of payment or vesting of any such entitlements, payments
or
benefits.
|
|
3.8
|
INTERESTED
PARTY TRANSACTIONS.
OSK is not indebted to any director or officer of OSK (except for
amounts
due as normal salaries and bonuses and in reimbursement of ordinary
expenses), and no such person is indebted to OSK, and there are no
other
transactions of the type required to be disclosed pursuant to Items
402 or
404 of Regulation S-B under the Securities Act and the Exchange Act.
|
|
3.09
|
COMPLIANCE
WITH LAWS.
OSK has complied with, are is in violation of, and has not received
any
notices of violation with respect to, any federal, state, local or
foreign
statute, law or regulation with respect to the conduct of its business,
or
the ownership or operation of its business, except for such violations
or
failures to comply as would not be reasonably expected to have a
Material
Adverse Effect on OSK.
|
|
3.10
|
COMPLETE
COPIES OF MATERIALS.
OSK has delivered or made available true and complete copies of each
document that has been requested by Company or its counsel in connection
with their legal and accounting review of OSK.
|
|
3.11
|
GOVERNMENTAL
AUTHORIZATION.
The OSK has obtained each federal, state, county, local or foreign
governmental consent, license, permit, grant, or other authorization
of a
Governmental Entity (i) pursuant to which OSK currently operates
or holds
any interest in any of its properties or (ii) that is required for
the
operation of OSK's business or the holding of any such interest ((i)
and
(ii) herein collectively called "OSK Authorizations"), and all of
such OSK
Authorizations are in full force and effect, except where the failure
to
obtain or have any of such OSK Authorizations or where the failure
of such
OSK Authorizations to be in full force and effect would not reasonably
be
expected to have a
|
|
3.12
|
BROKERS'
AND FINDERS' FEES.
OSK has not incurred, nor will it incur, directly or indirectly,
any
liability for brokerage or finders' fees or agents' commissions or
investment bankers' fees or any similar charges in connection with
this
Agreement or any transaction contemplated hereby.
|
9
|
3.13
|
BOARD
APPROVAL.
The Board of Directors of OSK has (i) approved this Agreement and
the
Merger, and (ii) approved the issuance of the shares of OSK Common
Stock
pursuant to this Agreement. The Board of Directors of Merger Sub
has
approved this Agreement and the Merger, and recommended that the
sole
stockholder of Merger Sub approve this Agreement and the Merger.
The
affirmative vote of the OSK's stockholders is not required to approve
the
Merger and the affirmative vote of OSK as sole stockholder of Merger
Sub
is the only vote of the holders of any of OSK's or Merger Sub's capital
stock necessary to approve this Agreement and the transactions
contemplated hereby.
|
|
3.15
|
REPRESENTATIONS
COMPLETE.
None of the representations or warranties made by OSK or Merger Sub
herein, when all such documents are read together in their entirety,
contains or will contain at the Effective Time any untrue statement
of a
material fact, or omits or will omit at the Effective Time to state
any
material fact necessary in order to make the statements contained
herein
or therein, in the light of the circumstances under which made, not
misleading. All projected, forecasted or prospective financial information
provided by OSK to the Company has been prepared in good faith on
the
basis of assumptions OSK believes are reasonable and supportable.
|
ARTICLE
IV
CONDUCT
PRIOR TO THE EFFECTIVE TIME
|
4.1
|
CONDUCT
OF BUSINESS.
During the period from the date of this Agreement and continuing
until the
earlier of the termination of this Agreement or the Effective Time,
each
of OSK and Company agrees (except to the extent expressly contemplated
by
this Agreement or as consented to in writing by the other party),
to carry
on its business in the ordinary course in substantially the same
manner as
heretofore conducted, to pay and to cause its subsidiaries to pay
debts
and Taxes when due subject to good faith disputes over such debts
or
taxes, to pay or perform other obligations when due, and to use all
reasonable efforts consistent with past practice and policies to
preserve
intact its and its subsidiaries' present business organizations,
use its
reasonable best efforts consistent with past practice to keep available
the services of its present officers and key employees and use its
reasonable best efforts consistent with past practice to preserve
its
relationships with customers, suppliers, distributors, licensors,
licensees, and others having business dealings with it or its
subsidiaries, to the end that its and its subsidiaries' goodwill
and
ongoing businesses shall be unimpaired at the Effective Time. The
OSK and
Company agree to promptly notify the other of any material event
or
occurrence not in the ordinary course of its or its subsidiaries'
business, and of any event that would have a Material Adverse Effect
on
OSK or Company.
|
ARTICLE
V
10
CONDITIONS
PRECEDENT TO OBLIGATIONS OF THE COMPANY
The
Company’s obligation to enter into and complete the Closing is conditioned upon
the satisfaction or waiver in writing by the Company, on or before the Closing
Date, of all of the following conditions:
|
6.1
|
REPRESENTATIONS
AND WARRANTIES.
The representations and warranties made by OSK and Merger Sub contained
in
this Merger Agreement, the schedules or exhibits hereto or in any
certificate
or document delivered to the Company by OSK and Merger Sub in connection
with the transactions contemplated by this Merger Agreement shall
be true
in all respects (without giving
effect to any materiality qualifications or limitations therein)
on and as
of the Closing Date with the same effect as though such representations
and warranties were made on such date except
for such failures to be true and correct which in the aggregate would
not
reasonably be expected to result in a Material Adverse Effect
on
OSK and Merger Sub.
|
|
6.2
|
PERFORMANCE
OF COVENANTS.
OSK and Merger Sub shall have performed and complied in all material
respects with all of the agreements and covenants required by this
Merger
Agreement to be performed and complied with by it prior to or on
the
Closing Date.
|
|
6.3
|
LITIGATION.
No
injunction
shall have been issued by any court or Governmental Authority which
restrains or prohibits this Merger Agreement or the consummation
of the
transactions contemplated hereby.
|
|
6.4
|
ANTITRUST
LAWS COMPLIANCE.
There is an applicable exemption to rules and regulations of the
Antitrust
Laws applicable to the transactions contemplated by this Merger
Agreement.
|
|
6.5
|
SHAREHOLDER
APPROVAL.
The Company Shareholder Approval required in connection with the
consummation of the Merger shall have been
obtained.
|
|
6.7
|
MATERIAL
CHANGES.
There shall not have been any change that has had or could reasonably
be
expected to have a Material Adverse Effect on the assets, properties,
condition (financial or otherwise), prospects or results of operations
of
the OSK from the date hereof to the Closing Date, nor shall there
exist
any condition which could reasonably be expected to result in such
a
Material Adverse Effect, and there shall have been delivered to OSK
a
certificate, dated the Closing Date, to such effect signed by an
authorized officer of the OSK.
|
11
ARTICLE
VI
CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF
OSK
AND MERGER SUB
The
obligations of OSK and Merger Sub to enter into and complete the Closing are
conditioned upon the satisfaction or waiver by OSK on behalf of itself and
Merger Sub, on or before the Closing Date, of the following
conditions:
|
6.1
|
REPRESENTATIONS
AND WARRANTIES.
The representations and warranties made by the Company contained
in this
Merger Agreement, the schedules or exhibits hereto or in any certificate
or document delivered to OSK or the Merger Sub by the Company in
connection with the transactions
contemplated by this Merger Agreement shall be true in all respects
(without giving effect to any materiality qualifications or limitations
therein) on and as of the Closing Date with the same effect as though
such
representations and warranties were made
on such date, except (i) as
otherwise contemplated by this Merger Agreement and (ii) for such
failures
to be true and correct which in the aggregate would not reasonably
be
expected to result in a Material Adverse Effect on the
Company.
|
|
6.2
|
PERFORMANCE
OF COVENANTS.
The Company shall have performed and complied in all material respects
with all of the agreements and covenants required by this Merger
Agreement
to be performed and complied with by it prior to or on the Closing
Date,
except
as otherwise
contemplated by this Merger Agreement.
The Company shall have paid a
$US 10,000 non-refundable advance legal fee to Xxxxxxx Hills Trading
Corporation Inc. financed by Xxxxxxx Hills Trading Corporation Inc.
and or
Xxxxxx Xxxx Attorney as consideration for the legal services rendered.
|
|
6.3
|
LITIGATION.
No
injunction shall have been issued by any court or Governmental Authority
which restrains or prohibits this Merger Agreement or the consummation
of
the transactions contemplated
hereby.
|
|
6.4
|
ANTITRUST
LAWS ACT COMPLIANCE.
There is an applicable exemption to rules and regulations of the
Antitrust
Laws Act applicable to the transactions contemplated by this Merger
Agreement.
|
|
6.5
|
CONSENTS
AND APPROVALS.
The consents and approvals specified herein shall have been obtained
in
form and substance satisfactory to OSK in its reasonable
discretion.
|
|
6.6
|
MATERIAL
CHANGES.
There shall not have been any change that has had or could reasonably
be
expected to have a
Material Adverse Effect on the assets, properties, condition (financial
or
otherwise), prospects or results of operations of the Company from
the
date hereof to the Closing Date, nor shall there exist any condition
which
could reasonably be expected
to result in such a Material Adverse Effect,
and there shall have
|
12
been
delivered to OSK a
certificate, dated the Closing Date, to such effect signed by an authorized
officer of the Company.
|
6.7
|
SHAREHOLDER
APPROVAL.
The Company Shareholder Approval required in connection with the
consummation of the Merger shall have been
obtained.
|
|
6.8
|
CERTIFICATE
OF MERGER.
Prior to the Effective Time, the Certificate of Merger shall be accepted
for filing with the Secretary of State of the State of
Nevada.
|
ARTICLE
VII
TERMINATION
|
7.1
|
TERMINATION
EVENTS.
This Merger Agreement may be terminated and the Merger may be abandoned
at
any time prior to the Effective Time without prejudice to any other
rights
or remedies either party may have by
written agreement, duly authorized by the Boards of Directors of
OSK,
Merger Sub and the Company;
|
|
7.2
|
EFFECT
OF TERMINATION.
In
the event this Merger Agreement is terminated pursuant to Section
7.1, all
further obligations of the parties hereunder shall terminate.
Each party’s right of termination hereunder is in addition to any other
rights it may have hereunder or otherwise and the exercise of a right
of
termination shall not be an election of
remedies.
|
|
8.3
|
AMENDMENT.
To
the extent permitted by applicable law, this Merger Agreement may
be
amended by action taken by or on behalf of the respective Boards
of
Directors of the Company, OSK and Merger Sub at any time; provided,
however,
that, following approval by the Stockholders of the Company, no amendment
shall be made which under the Nevada Corporate Law would require
the
further approval of the Stockholders of the Company without obtaining
such
approval. This Merger Agreement may not be amended except by an instrument
in writing signed on behalf of all of the parties
hereto.
|
|
8.4
|
WAIVER.
At any time prior to the Effective Time any party hereto may, to
the
extent legally allowed, (i) extend the time for the performance of
any of
the obligations or other acts of the other parties hereto, (ii) waive
any
inaccuracies in the representations and warranties made to such party
contained herein or in any document delivered pursuant hereto and
(iii)
waive compliance with any of the agreements or conditions for the
benefit
of such party contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set
forth in
an instrument in writing signed on behalf of such
party.
|
ARTICLE
VIII
13
MISCELLANEOUS
|
8.1
|
CAPTIONS
AND HEADINGS.
The Article and paragraph headings throughout this Agreement are
for
convenience and reference only, and shall in no way be deemed to
define,
limit, or add to the meaning of any provision of this
Agreement.
|
|
8.2
|
NO
ORAL CHANGE.
This Agreement and any provision hereof, may not be waived, changed,
modified, or discharged orally, but only by an agreement in writing
signed
by the party against whom enforcement of any waiver, change, modification,
or discharge is sought.
|
|
8.3
|
GOVERNING
LAW.
This Agreement shall be governed by and construed in accordance with
the
laws of the State of Nevada, without regard to the laws that might
otherwise govern under applicable principles of conflicts of law.
Each of
the parties hereto irrevocably consents to the exclusive jurisdiction
of
any court located within the State of Nevada in connection with any
matter
based upon or arising out of this Agreement or the matters contemplated
herein, agrees that process may be served upon them in any manner
authorized by the laws of the State of Nevada for such persons and
waives
and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction and such
process.
|
|
8.4
|
PUBLIC
ANNOUNCEMENTS.
Subject to any requirement of applicable law or stock exchange listing
agreement, all public announcements or similar publicity with respect
to
this Merger Agreement or the transactions contemplated hereby shall
be
issued only with the consent
of OSK and the Company. Unless consented to by each party hereto
in
advance prior to the
Closing, all parties hereto shall keep the provisions of this Merger
Agreement strictly confidential
and make no disclosure thereof to any Person, other than such party’s
respective legal
and financial advisors, subject to the requirements of applicable
law or
securities exchange regulations.
|
|
8.5
|
SUCCESSORS.
This Merger Agreement shall be binding upon and shall inure to the
benefit
of the parties hereto and their respective successors and permitted
assigns.
|
|
8.6
|
FURTHER
ASSURANCES.
Each of the parties hereto agrees that it will, from time to time
after
the date of this Merger Agreement, execute and deliver such other
certificates, documents
and instruments and take such other action as may be reasonably requested
by the other party to carry out the actions and transactions contemplated
by this Merger Agreement.
|
|
8.7
|
CONFIDENTIALITY.
The Confidentiality Agreement between OSK and the Company is incorporated
by reference herein and shall continue in full force and effect in
accordance with the terms thereof. In the event of termination or
abandonment of the transactions contemplated by this Agreement pursuant
to
Section 8.1, the Confidentiality
|
14
Agreement
shall continue in full force and effect.
The definition of “Confidential Information” contained in the Confidentiality
Agreement is hereby amended to include this Agreement and all information
obtained pursuant to of this Agreement.
|
8.8
|
NOTICES.
All notices requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given
on the date of service if served personally on the party to whom
notice is
to be given, or on the third day after mailing if mailed to the party
to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid, and properly addressed, and by fax, as
follows:
|
If
to
OSK or Merger Sub:
XXX
XXXXXXX XX
000,
Xxxxx Xxxxxxx
Xxxxx-Xxxxxxx,Xxxxxx
X0X
0X0
With
a
copy to:
Xxxxxx
X.
Emas
Attorney
at Law
0000
Xxxxxxxxxx Xxxxxx
Xxxxx
Xxxxx, Xxxxxxx 00000
Telephone:
(000) 000-0000
If
to
the Company:
TeliPhone
Inc.
0000
Xxxxxx Xxxx, 00xx
Xxxxx
Xxxxxxxx,
Xxxxxx, Xxxxxx
Telephone:
(000) 000-0000
Facsimile:(
000) 000-0000
With
a
copy to:
|
8.9
|
NON-WAIVER.
Except as otherwise expressly provided herein, no waiver of any covenant,
condition, or provision of this Agreement shall be deemed to have
been
made unless expressly in writing and signed by the party against
whom such
waiver is charged; and (i) the failure of any party to insist in
any one
or more cases upon the performance of any of the provisions, covenants,
or
conditions of this Agreement or to exercise any
|
15
option
herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants, or conditions,
(ii) the acceptance of performance of anything required by this Agreement to
be
performed with knowledge of the breach or failure of a covenant, condition,
or
provision hereof shall not be deemed a waiver of such breach or failure, and
(iii) no waiver by any party of one breach by another party shall be construed
as a waiver with respect to any other or subsequent breach.
|
8.10
|
TIME
OF ESSENCE. Time
is of the essence of this Agreement and of each and every provision
hereof.
|
|
8.11
|
REMEDIES
CUMULATIVE.
Except as otherwise provided herein, any and all remedies herein
expressly
conferred upon a party will be deemed cumulative with and not exclusive
of
any other remedy conferred hereby, or by law or equity upon such
party,
and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
|
|
8.12
|
SEVERABILITY.
If any provision of this Agreement, or the application thereof, becomes
or
is declared by a court of competent jurisdiction to be illegal, void
or
unenforceable, the remainder of this Agreement will continue in full
force
and effect and the application of such provision to other persons
or
circumstances will be interpreted so as reasonably to effect the
intent of
the parties hereto. The parties further agree to replace such void
or
unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable
provision.
|
|
8.13
|
ENTIRE
AGREEMENT.
This Agreement contains the entire Agreement and understanding between
the
parties hereto, and supersedes all prior agreements and
understandings.
|
|
8.14
|
RULES
OF CONSTRUCTION.
The parties hereto agree that they have been represented by counsel
during
the negotiation, preparation and execution of this Agreement and,
therefore, waive the application of any law, regulation, holding
or rule
of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement
or
document.
|
|
8.15
|
EXPENSES.
Except as expressly otherwise provided herein, each party shall bear
its
own expenses incurred in connection with the preparation, execution
and
performance of this
Merger Agreement and the transactions contemplated hereby, including
all
fees and expenses of agents, representatives, counsel and
accountants.
All such expenses incurred by the Company (“Company Transaction Expenses”)
shall be repaid in full at the
Closing.
|
16
|
8.16
|
COUNTERPARTS.
This
Agreement may be executed in one or more counterparts, all of which
shall
be considered one and the same agreement and shall become effective
when
one or more counterparts have been signed by each of the parties
and
delivered to the other parties, it being understood that all parties
need
not sign the same counterpart.
|
[SIGNATURES
ON FOLLOWING PAGE]
17
IN
WITNESS WHEREOF, the parties have executed this Merger Agreement as of the
date
first above written.
|
OSK
|
THE
COMPANY
|
|
OSK
CAPITAL II
|
TELIPHONE
INC
|
|
By:
/s/ Xxxxxx Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title: Chief Executive Officer |
By:
/s/ Xxxxxx Mretakos
Name: Xxxxxx
Xxxxxxxx
Title:
Chief Executive Officer
|
MERGER
SUB
OSK
II
ACQUISITION CORP.
By:
/s/ Xxxxxx X. Emas
Name:
Xxxxxx X. Emas
Title:
President
