AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement") is made this 23rd day of
February, 2004, by and between Senticore, Inc., a Delaware corporation; Westar
South America, S.A., a Venezuelan corporation ("Westar"); and the persons listed
on the signature page hereof, who are the owners of record of all the issued and
outstanding common stock of Westar and who execute and deliver this Agreement
(the "Westar Stockholders"), based on the following:
RECITALS
WHEREAS, Senticore wishes to acquire all the issued and outstanding stock
of Westar in an exchange for stock of Senticore in a transaction intended to
qualify as a tax-free exchange pursuant to section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended.
WHEREAS, in furtherance thereof, the respective Boards of Directors of
Senticore and Westar, as well as their shareholders, have approved the exchange,
upon the terms and subject to the conditions set forth in this Agreement,
pursuant to which each share of common stock, $1.00 par value, of Westar
("Westar Common Stock") issued and outstanding prior to the exchange, will be
exchanged for 29,000,000 shares of common stock, $.001 par value, of Senticore
("Senticore Common Stock") to be issued by Senticore to the Westar Stockholders.
WHEREAS, neither party is seeking tax counsel or legal or accounting
opinions on whether the transaction qualifies for tax free treatment.
AGREEMENT
Based on the stated premises, which are incorporated herein by reference,
and for and in consideration of the mutual covenants and agreements hereinafter
set forth, the mutual benefits to the parties to be derived herefrom, and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is hereby agreed as follows:
ARTICLE I
EXCHANGE OF STOCK
1.01 Exchange of Shares. On the terms and subject to the conditions set
------------------
forth in this Agreement, on the Closing Date (as defined in Section 1.05
hereof), the Westar Stockholders shall assign, transfer, and deliver to
Senticore, free and clear of all liens, pledges, encumbrances, charges,
restrictions, or claims of any kind, nature, or description, all issued and
outstanding shares of Westar Common Stock (the "Westar Shares") held by the
Westar Stockholders which shares shall represent all issued and outstanding
shares of Westar Common Stock, and Senticore agrees to acquire such shares on
such date by issuing and delivering in exchange therefor to the Westar
Stockholders an aggregate of 29,000,000 restricted shares of Senticore Common
Stock. All shares of Senticore Common Stock to be issued and delivered pursuant
to this Agreement shall be appropriately adjusted to take into account any stock
split, stock dividend, reverse stock split, recapitalization, or similar change
in the Senticore Common Stock which may occur between the date of the execution
of this Agreement and the Closing Date.
1.02 Delivery of Certificates by the Westar Stockholders. The transfer of
the Westar Shares by the Westar Stockholders shall be effected by the delivery
to Senticore at the Closing (as set forth in Section 1.05 hereof) of
certificates representing the transferred shares endorsed in blank or
accompanied by stock powers executed in blank, with all signatures medallion
guaranteed and with all necessary transfer taxes and other revenue stamps
affixed and acquired at the Westar Stockholders' expense.
1.03 Operation as Wholly-Owned Subsidiary. After giving effect to the
transaction contemplated hereby, Senticore will own all the issued and
outstanding shares of Westar and Westar will be a wholly-owned subsidiary of
Senticore operating under the name "Westar South America S.A." or such other
name selected by the shareholders and management of Senticore.
1.04 Further Assurances. At the Closing and from time to time thereafter,
the Westar Stockholders shall execute such additional instruments and take such
other action as Senticore may reasonably request, without undue cost to the
Westar Stockholders in order to more effectively sell, transfer, and assign
clear title and ownership in the Westar Shares to Senticore.
1.05 Closing and Parties. The Closing contemplated hereby shall be held at
a mutually agreed upon time and place on or before April 15, 2004, or on another
date to be agreed to in writing by the parties (the "Closing Date'). The
Agreement may be closed at any time following approval by a majority of the
holders of Senticore Common Stock as set forth in Section 4.01 hereof and the
Westar Stockholders as set forth in Section 5.02. The Closing may be
accomplished by wire, express mail, overnight courier, conference telephone call
or as otherwise agreed to by the respective parties or their duly authorized
representatives.
1.06 Closing Events.
(a) Senticore Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article IV, Senticore shall deliver to Westar
at Closing all the following:
(i) A certificate of good standing from the Department of the
Secretary of the State of Delaware, issued as of a date within
ten days prior to the Closing Date, certifying that Senticore is
in good standing as a corporation in the State of Delaware; (ii)
a certificate of merger from the Secretary of State of Delaware
certifying that Senticore has merged with Westar and is the
parent corporation of Westar; (iii) incumbency and specimen
signature certificates dated the Closing Date with respect to the
officers of Senticore executing this Agreement and any other
document delivered pursuant hereto on behalf of Senticore; (iv)
copies of the resolutions/consents of Senticore's board of
directors and shareholder minutes or consents authorizing the
execution and performance of this Agreement and the contemplated
transactions, certified by the secretary or an assistant
secretary of Senticore as of the Closing Date; (v) the
certificate contemplated by Section 4.03, duly executed by the
chief executive officer of Senticore; (vi) the certificate
contemplated by Section 4.04, dated the Closing Date, signed by
the chief executive officer of Senticore; (vii) certificates for
29,000,000 shares of Senticore Common Stock in the name of the
Westar Stockholders; and in addition to the above deliveries,
Senticore shall take all steps and actions as Senticore and the
Westar Stockholders may reasonably request or as may otherwise be
reasonably necessary to consummate the transactions contemplated
hereby.
(b) Westar Deliveries. Subject to fulfillment or waiver of the conditions
set forth in Article V, Westar and/or the Westar Stockholders shall
deliver to Senticore at Closing all the following: (i) A certificate
of good standing from the Department of Commerce of the Country of
Venezuela, issued as of a date within ten days prior to the Closing
Date certifying that Westar is in good standing as a corporation in
the Country of Venezuela; (ii) incumbency and specimen signature
certificates dated the Closing Date with respect to the officers of
Westar executing this Agreement and any other document delivered
pursuant hereto on behalf of Westar; (iii) copies of
resolutions/consents of the board of directors of Westar authorizing
the execution and performance of this Agreement and the contemplated
transactions, certified by the secretary or an assistant secretary of
Westar as of the Closing Date; (iv) the certificate contemplated by
Section 5.03, executed by the chief operating officer of Westar; and
(v) the certificate contemplated by Section 5.04, dated the Closing
Date, signed by the chief operating officer of Westar. In addition to
the above deliveries, Westar shall take all steps and actions as
Senticore may reasonably request or as may otherwise be reasonably
necessary to consummate the transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES OF SENTICORE
As an inducement to, and to obtain the reliance of Westar, Senticore represents,
promises and warrants as follows:
2.01 Organization.
Senticore is, and will be at Closing, a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and has
the corporate power and is and will be duly authorized, qualified, franchised,
and licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, and there are no
other jurisdictions in which it is not so qualified in which the character and
location of the assets owned by it or the nature of the material business
transacted by it requires qualification, except where failure to do so would not
have a material adverse effect on its business, operations, properties, assets
or condition. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of Senticore's Articles of
Incorporation or Bylaws, or other agreement to which it is a party or by which
it is bound.
2.02 Approval of Agreement.
Senticore has full power, authority, and legal right and has taken, or will
take, all action required by law, its Articles of Incorporation, Bylaws, and
otherwise to execute and deliver this Agreement and to consummate the
transactions herein contemplated. The board of directors of Senticore has
authorized and approved the execution, delivery, and performance of this
Agreement and the transactions contemplated hereby are subject to the approval
of the Senticore shareholders and compliance with state and federal law.
Senticore shareholders will not have dissenters rights with respect to any of
the transactions contemplated herein.
2.03 Capitalization.
The authorized capitalization of Senticore consists of 200,000,000 shares of
common stock, $0.001 par value, of which 42,000,000 shares are issued and
outstanding prior to issuance of shares as set forth in Article I of this
Agreement. There are 20,000,000 authorized shares of preferred stock, $.001 par
value, and no shares of preferred stock are issued and outstanding. There are,
and at the Closing, there will be no outstanding subscriptions, options,
warrants, convertible securities, calls, rights, commitments or agreements
calling for or requiring issuance or transfer, sale or other disposition of any
shares of capital stock of the Company or calling for or requiring the issuance
of any securities or rights convertible into or exchangeable (including on a
contingent basis) for shares of capital stock. All of the outstanding shares of
Senticore are duly authorized, validly issued, fully paid and non-assessable and
not issued in violation of the preemptive or other right of any person. There
are no dividends due, to be paid or in arrears with respect to any of the
capital stock of Company.
2.04 Financial Statements.
(i) Included in Schedule 2.04 are the audited balance sheet of Senticore
as of December 31, 2002, and the related statements of operations,
stockholders' equity (deficit), and cash flows for the fiscal year
ended December 31, 2002, including the notes thereto, and related
statements of operations for the quarters then ended (collectively the
"Financial Statements") and the accompanying auditor's report and
representations by the Chief Financial Officer of Senticore to the
effect that such financial statements contain all adjustments (all of
which are normal recurring adjustments) necessary to present fairly
the results of operations and financial position for the periods and
as of the dates indicated.
(ii) The financial statements of Senticore delivered pursuant to Section
2.04(i) have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved as explained in the notes to such financial statements. The
Senticore financial statements present fairly, in all material
respects, as of the closing date, the financial position of Senticore.
Senticore will not have, as of the Closing Date, any liabilities,
obligations or claims against it (absolute or contingent) in excess of
$5,000, and all assets reflected therein present fairly the assets of
Senticore in accordance with generally accepted accounting principles.
(iii)Senticore has filed or will file as the Closing Date its tax returns
required to be filed for its two most recent fiscal years and will pay
all taxes due thereon. All such returns and reports are accurate and
correct in all material respects. Senticore has no liabilities with
respect to the payment of any federal, state, county, local, or other
taxes (including any deficiencies, interest, or penalties) accrued for
or applicable to the period ended on the closing date and all such
dates and years and periods prior thereto and for which Senticore may
at said date have been liable in its own right or as transferee of the
assets of, or as successor to, any other corporation or entity, except
for taxes accrued but not yet due and payable, and to the best
knowledge of Senticore, no deficiency assessment or proposed
adjustment of any such tax return is pending, proposed or
contemplated. None of such income tax returns has been examined or is
currently being examined by the Internal Revenue Service and no
deficiency assessment or proposed adjustment of any such return is
pending, proposed or contemplated. Senticore has not made any election
pursuant to the provisions of any applicable tax laws (other than
elections that relate solely to methods of accounting, depreciation,
or amortization) that would have a material adverse affect on
Senticore, its financial condition, its business as presently
conducted or proposed to be conducted, or any of its respective
properties or material assets. There are no outstanding agreements or
waivers extending the statutory period of limitation applicable to any
tax return of Senticore.
2.05 Information.
The information concerning Senticore set forth in this Agreement is complete and
accurate in all respects and does not contain any untrue statement of a fact or
omit to state a fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. Senticore shall cause
the schedules delivered by it pursuant hereto and the instruments delivered to
Westar hereunder to be updated after the date hereof up to and including the
Closing Date.
2.06 Absence of Certain Changes or Events.
Except as set forth in this Agreement or the schedules hereto, since the date of
the most recent Senticore balance sheet described in Section 2.04 and included
in the information referred to in Section 2.06:
(a) There has not been: (i) any adverse change in the business,
operations, properties, level of inventory, assets, or condition of
Senticore; or (ii) any damage, destruction, or loss to Senticore
(whether or not covered by insurance) adversely affecting the
business, operations, properties, assets, or conditions of Senticore;
(b) Senticore has not: (i) amended its Articles of Incorporation or
Bylaws; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are extraordinary or material
considering the business of Senticore; (iv) made any material change
in its method of management, operation, or accounting; (v) entered
into any other material transactions; (vi) made any accrual or
arrangement for or payment of bonuses or special compensation of any
kind or any severance or termination pay to any present or former
officer or employee; (vii) increased the rate of compensation payable
or to become payable by it to any of its officers or directors or any
of its employees whose monthly compensation exceeds $1,000; or (viii)
made any increase in any profit-sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors,
or employees;
(c) Senticore has not: (i) granted or agreed to grant any options,
warrants, or other rights for its stocks, bonds, or other corporate
securities calling for the issuance thereof; (ii) borrowed or agreed
to borrow any funds or incurred, or become subject to, any material
obligation or liability (absolute or contingent) except liabilities
incurred in the ordinary course of business; (iii) paid any material
obligation or liability (absolute or contingent) other than current
liabilities reflected in or shown on the most recent Senticore balance
sheet and current liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed to sell or
transfer, any of its material assets, properties, or rights (except
assets, properties, or rights not used or useful in its business
which, in the aggregate have a value of less than $5,000 or canceled,
or agreed to cancel, any debts or claims (except debts and claims
which in the aggregate are of a value of less than $5,000); (v) made
or permitted any amendment or termination of any contract, agreement,
or license to which it is a party if such amendment or termination is
material, considering the business of Senticore ; or (vi) issued,
delivered, or agreed to issue or deliver any stock, bonds, or other
corporate securities including debentures (whether authorized and
unissued or held as treasury stock); and
(d) Senticore has not become subject to any law, order, investigation,
inquiry, grievance or regulation which materially and adversely
affects, or in the future would be reasonably expected to adversely
affect, the business, operations, properties, assets, or condition of
Senticore.
2.07 Litigation and Proceedings.
There are no material actions, suits, claims, or administrative or other
proceedings pending, asserted or unasserted, threatened by or against Senticore
or adversely affecting Senticore or its properties, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign,
or before any arbitrator of any kind. Senticore is not in default of any
judgment, order, writ, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality.
2.08 Compliance With Laws.
Senticore and its officers and directors have complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, including
federal and state securities laws. Senticore and its officers, directors and
beneficial owners are not under investigation by any federal, state, county or
local authorities, including the Commission. Senticore and its officers,
directors and beneficial owners have not received notification from any federal,
state, county, or local authorities, including the Commission, that it or any of
its officers or directors will be the subject of a legal action or that the
Commission's Division of Enforcement will be recommending to the Commission that
a Federal District Court or Commission administrative action or any other action
be filed or taken against Senticore and its officers, directors and beneficial
owners.
2.09 Securities and Exchange Commission Compliance of Senticore.
Senticore has a class of securities registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended ("Exchange Act") and has complied in
all respects with Rule 14(a) and 14(c) of the Exchange Act, and with Sections 13
and 15(d) of the Exchange Act, and Senticore, its management and beneficial
owners have complied in all respects with Sections 13(d) and 16(a) of the
Exchange Act.
2.10 Material Contract Defaults.
Senticore is not in default under the terms of any outstanding contract,
agreement, lease, or other commitment, and there is no event of default or other
event which, with notice or lapse of time or both, would constitute a default in
any respect under any such contract, agreement, lease, or other commitment.
2.11 No Conflict With Other Instruments.
The execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust, or other material contract, agreement, or instrument to
which Senticore is a party or to which any of its properties or operations are
subject.
2.12 Subsidiary.
Senticore does not and has never owned, beneficially or of record, any equity
securities in any other entity. Senticore does not have a predecessor as that
term is defined under generally accepted accounting principles or Regulation S-X
promulgated by the Securities and Exchange Commission.
2.13 Senticore Schedules and Documents.
Senticore will deliver to Westar the following schedules and documents within
ten days prior to the date of closing, which are collectively referred to as the
"Senticore Schedules" and which consist of the following separate schedules
dated as of the date of execution of this Agreement, all certified by a duly
authorized officer of Senticore as complete, true, and accurate:
(a) A schedule including copies of the Articles of Incorporation and
Bylaws of Senticore in effect as of the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by the board of
directors of Senticore approving this Agreement and the transactions
herein contemplated;
(c) A schedule setting forth a description of any material adverse change
in the business, operations, property, inventory, assets, or condition
of Senticore since the most recent Senticore balance sheet, required
to be provided pursuant to Section 2.04 hereof;
(d) A schedule setting forth the financial statements required pursuant to
Section 2.04(a) hereof;
(e) A schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the
Senticore Schedules by Sections 2.01 through 2.12; and
(f) Legal opinions in a form acceptable to Westar that Senticore has
complied with applicable securities laws pertaining to this Agreement.
Senticore shall cause the Senticore Schedules and the instruments delivered to
Westar hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date. Such
updated Senticore Schedules, certified in the same manner as the original
Senticore Schedules, shall be delivered prior to and as a condition precedent to
the obligation of Westar to close.
2.14 Quotation on the OTC Bulletin Board.
Senticore's Common Stock is quoted on the OTC Bulletin Board under the symbol
"SNTR" and Senticore will retain such quotation on the OTC Bulletin Board until
the Closing of the transactions contemplated herein.
2.15 Delivery of Shareholder List.
Upon execution of this agreement, Senticore shall deliver a certified
shareholder list from its transfer agent setting forth the name of each
Senticore shareholder, the number of shares held by each, dated as of a date
within five days of closing and whether such shares held are restricted
securities. In connection therewith, Senticore represents that none of its
shareholders are nominees for any other person.
ARTICLE III
REPRESENTATIONS, COVENANTS, WARRANTIES OF WESTAR, ETC.
As an inducement to, and to obtain the reliance of Senticore, Westar and the
Westar Stockholders, jointly and severally, represent and warrant as follows:
3.01 Organization.
Westar is, and will be on the Closing Date, a corporation duly organized,
validly existing, and in good standing under the laws of Venezuela and has the
corporate power and is and will be duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, and there are no
other jurisdictions in which it is not so qualified in which the character and
location of the assets owned by it or the nature of the material business
transacted by it requires qualification, except where failure to do so would not
have a material adverse effect on its business, operations, properties, assets
or condition of Westar. The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not, violate any provision of Westar's
Articles of Incorporation or Bylaws, or other material agreement to which it is
a party or by which it is bound.
3.02 Approval of Agreement.
Westar has full power, authority, and legal right and has taken, or will take,
all action required by law, its Articles of Incorporation, Bylaws, or otherwise
to execute and deliver this Agreement and to consummate the transactions herein
contemplated. The board of directors of Westar has authorized and approved the
execution, delivery, and performance of this Agreement and the transactions
contemplated hereby, subject to the approval of the Westar Stockholders and
compliance with state and federal corporate and securities laws.
3.03 Capitalization.
The issued and outstanding shares of common stock of Westar consist of 43,640
held in equal proportions by the two Westar Stockholders set forth on the
signature page hereof. All issued and outstanding shares of Westar are validly
issued, fully paid, and nonassessable and not issued in violation of the
preemptive or other right of any person. There are no dividends or other amounts
due or payable with respect to any of the shares of capital stock of Westar.
3.04 Financial Statements.
(a) Included in Schedule 3.04 are the audited balance sheets of Westar as
of December 31, 2002 and the related statements of operations, cash
flows, and stockholders' equity for the period from inception to
December 31, 2002 including the notes thereto and representations by
the Chief Operating Officer of Westar to the effect that such
financial statements contain all adjustments (all of which are normal
recurring adjustments) necessary to present fairly the results of
operations and financial position for the periods and as of the dates
indicated.
(b) The audited financial statements delivered pursuant to Section 3.04(a)
have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. The
financial statements of Westar present fairly, as of their respective
dates, the financial position of Westar. Westar did not have, as of
the date of any such balance sheets, except as and to the extent
reflected or reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected in any financial
statements or the notes thereto prepared in accordance with generally
accepted accounting principles, and all assets reflected therein
present fairly the assets of Westar, in accordance with generally
accepted accounting principles. The statements of revenue and expenses
and cash flows present fairly the financial position and result of
operations of Westar as of their respective dates and for the
respective periods covered thereby.
3.05 Outstanding Warrants and Options.
Westar has no issued warrants or options, calls, or commitments of any nature
relating to the authorized and unissued Westar common stock.
3.06 Information.
The information concerning Westar set forth in this Agreement and in the
schedules delivered by Westar pursuant hereto is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. Westar shall
cause the schedules delivered by Westar pursuant to this Agreement to Senticore
to be updated after the date hereof up to and including the Closing Date.
3.07 Absence of Certain Changes or Events.
Except as set forth in this Agreement, since the date of the most recent Westar
balance sheet described in Section 3.04 and included in the information referred
to in Section 3.06:
(a) There has not been: (i) any material adverse change in the business,
operations, properties, level of inventory, assets, or condition of
Westar; or (ii) any damage, destruction, or loss to Westar materially
and adversely affecting the business, operations, properties, assets,
or conditions of Westar;
(b) Westar has not: (i) amended its Articles of Incorporation or Bylaws;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or
redeem, any of its capital stock; (iii) waived any rights of value
which in the aggregate are extraordinary and material considering the
business of Westar; (iv) made any material change in its method of
accounting; (v) entered into any other material transactions other
than those contemplated by this Agreement; (vi) made any material
accrual or material arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any
present or former officer or employee; or (vii) made any material
increase in any profit-sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with their officers,
directors, or employees;
(c) Westar has not (i) granted or agreed to grant any options, warrants,
or other rights for its stocks, bonds, or other corporate securities
calling for the issuance thereof, (ii) borrowed or agreed to borrow
any funds or incurred, or become subject to, any material obligation
or liability (absolute or contingent) except liabilities incurred in
the ordinary course of business; (iii) paid any material obligation or
liability (absolute or contingent) other than current liabilities
reflected in or shown on the most recent Westar balance sheet and
current liabilities incurred since that date in the ordinary course of
business; (iv) sold or transferred, or agreed to sell or transfer, any
of its material assets, properties, or rights, or agreed to cancel any
material debts or claims; (v) made or permitted any amendment or
termination of any contract, agreement, or license to which it is a
party if such amendment or termination is material, considering the
business of Westar; or (vi) issued, delivered, or agreed to issue or
deliver any stock, bonds, or other corporate securities including
debentures (whether authorized and unissued or held as treasury
stock); and
(d) To the best knowledge of Westar, it has not become subject to any law
or regulation which materially and adversely affects, or in the future
would be reasonably expected to adversely affect, the business,
operations, properties, assets, or condition of Westar.
3.08 Title and Related Matters.
Except as provided herein or disclosed in the most recent Westar balance sheet
and the notes thereto, Westar has good and marketable title to all of its
properties, inventory, interests in properties, technology, whether patented or
unpatented, including, but not limited to, direct ownership of 45.2% of a
Venezuelan company that owns good and marketable title to 60,000 acres of a
hardwood lumber plantation located in Venezuela, and assets, all of which are
described in Schedule 3.08 and are reflected in the most recent Westar balance
sheet or acquired after that date (except properties, interests in properties,
and assets sold or otherwise disposed of since such date in the ordinary course
of business), free and clear of all mortgages, liens, pledges, charges, or
encumbrances, except (i) statutory liens, mortgages, loans or claims not yet
delinquent; and (ii) such imperfections of title and easements as do not, and
will not, materially detract from, or interfere with, the present or proposed
use of the properties subject thereto or affected thereby or otherwise
materially impair present business operations on such properties. To the best
knowledge of Westar, its technology does not infringe on the copyright, patent,
trade secret, know-how, or other proprietary right of any other person or entity
and comprises all such rights necessary to permit the operation of the business
of Westar as now being conducted or as contemplated.
3.09 Litigation and Proceedings.
There are no material actions, suits, or proceedings pending or, to the
knowledge of Westar, threatened by or against Westar or adversely affecting
Westar, at law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind.
Westar does not have any knowledge of any default on its part with respect to
any judgment, order, writ, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality.
3.10 Material Contract Defaults.
Westar is not in default in any material respect under the terms of any
outstanding contract, agreement, lease, or other commitment which is material to
the business, operations, properties, assets, or condition of Westar, and there
is no event of default or other event which, with notice or lapse of time or
both, would constitute a default in any material respect under any such
contract, agreement, lease, or other commitment in respect of which Westar has
not taken adequate steps to prevent such a default from occurring.
3.11 No Conflict With Other Instruments.
The execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust or other material contract, agreement, or instrument to
which Westar is a party or to which any of its properties or operations are
subject.
3.12 Governmental Authorizations.
Westar has all licenses, franchises, permits, and other governmental
authorizations that are legally required to enable it to conduct its business in
all material respects as conducted on the date of this Agreement. Except for
compliance with federal and state law, as hereinafter provided, no
authorization, approval, consent, or order of, or registration, declaration, or
filing with, any court or other governmental body is required in connection with
the execution and delivery by Westar of this Agreement and the consummation by
Westar of the transactions contemplated hereby.
3.13 Compliance With Laws and Regulations.
Westar has complied with all applicable statutes and regulations of any federal,
state, or other governmental entity or agency thereof having jurisdiction over
Westar, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or condition of
Westar or except to the extent that noncompliance would not result in the
occurrence of any material liability for Westar. To the best knowledge of
Westar, the consummation of this transaction will comply with all applicable
statutes and regulations, subject to the preparation and filing of any forms
required by state and federal security laws.
3.14 Subsidiaries.
Westar does not own beneficially or of record equity securities in any
subsidiary.
3.15 Westar Schedules.
Westar has delivered to Senticore the following schedules, which are
collectively referred to as the "Westar Schedules" and which consist of the
following separate schedules dated as of the date of execution of this
Agreement, all certified by the Chief Executive Officer of Westar as complete,
true, and accurate:
(a) A schedule including copies of the Articles of Incorporation and
Bylaws of Westar and all amendments thereto in effect as of the date
of this Agreement;
(b) A schedule containing copies of resolutions adopted by the board of
directors of Westar approving this Agreement and the transactions
herein contemplated as referred to in Section 3.02;
(c) A schedule setting forth a description of any material adverse change
in the business, operations, property, inventory, assets, or condition
of Westar since the most recent Westar balance sheet, required to be
provided pursuant to Section 3.04 hereof;
(d) A schedule setting forth the financial statements required pursuant to
Section 3.04 (a) hereof; and
(e) A schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Westar
Schedules by Sections 3.01 through 3.14.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF WESTAR
The obligations of Westar under this Agreement are subject to the satisfaction
or waiver, at or before the Closing Date, of the following conditions:
4.01 Shareholder Approval.
Senticore shall obtain the written consent of a majority of its common
shareholders to approve the transactions contemplated by this Agreement
including the merger with Westar and the exchange of Senticore's common shares
for all of the issued and outstanding Westar common shares.
4.02 Accuracy of Representations.
The representations and warranties made by Senticore in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date, and Senticore shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by
Senticore prior to or at the Closing. Westar shall be furnished with
certificates, signed by duly authorized officers of Senticore and dated the
Closing Date, to the foregoing effect.
4.03 Officer's Certificates.
Westar shall have been furnished with certificates dated the Closing Date and
signed by the duly authorized Chief Executive Officer of Senticore to the effect
that to such officer's best knowledge no litigation, proceeding, investigation,
or inquiry is pending or, to the best knowledge of Senticore threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement. Furthermore, based on certificates
of good standing, representations of government agencies, and Senticore's own
documents and information, the certificate shall represent, to the best
knowledge of the officer, that:
(a) This Agreement has been duly approved by Senticore's board of
directors and has been duly executed and delivered in the name and on
behalf of Senticore by its duly authorized officers pursuant to, and
in compliance with, authority granted by the board of directors of
Senticore pursuant to a majority consent;
(b) There have been no adverse changes in Senticore up to and including
the date of the certificate;
(c) All conditions required by this Agreement have been met, satisfied, or
performed by Senticore;
(d) All authorizations, consents, approvals, registrations, reports,
schedules and/or filings with any governmental body including the
Securities and Exchange Commission, agency, or court have been
obtained or will be obtained by Senticore and all of the documents
obtained by Senticore are in full force and effect or, if not required
to have been obtained, will be in full force and effect by such time
as may be required; and
(e) There is no claim action, suit, proceeding, inquiry, or investigation
at law or in equity by any public board or body pending or threatened
against Senticore, wherein an unfavorable decision, ruling, or finding
could have an adverse effect on the financial condition of Senticore,
the operation of Senticore, or the merger contemplated herein, or any
agreement or instrument by which Senticore is bound or in any way
contests the existence of Senticore.
4.04 No Material Adverse Change.
Prior to the Closing Date, there shall not have occurred any adverse change in
the financial condition, business, or operations of Senticore, nor shall any
event have occurred which, with the lapse of time or the giving of notice, may
cause or create any adverse change in the financial condition, business, or
operations of Senticore.
4.05 Good Standing.
Westar shall have received a certificate of good standing from the appropriate
authority, dated as of the date within five days prior to the Closing Date,
certifying that Senticore is in good standing as a corporation in the State of
Delaware.
4.06 Other Items.
Westar shall have received from Senticore such other documents, legal opinions,
certificates, or instruments relating to the transactions contemplated hereby as
Westar may request.
4.07 Completion of Due Diligence Investigation.
Westar shall have completed its due diligence investigation of Senticore and its
subsidiaries, and such investigation shall be satisfactory to Westar in all
respects.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF SENTICORE
The obligations of Senticore under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
5.01 Shareholder Approval.
Senticore shall obtain, through a majority written consent of its common
shareholders action whereby the shareholders of Senticore authorize and approve
this Agreement and the transactions contemplated hereby. If Senticore is unable
to obtain shareholder approval, Senticore is under no further obligation to
proceed with the transactions contemplated under this Agreement.
5.02 Westar Stockholders.
The Westar Stockholders shall approve this Agreement and the merger with
Senticore contemplated by this Agreement.
5.03 Accuracy of Representations.
The representations and warranties made by Westar and the Westar Stockholders in
this Agreement were true when made and shall be true at the Closing Date with
the same force and affect as if such representations and warranties were made at
and as of the Closing Date (except for changes therein permitted by this
Agreement), and Westar shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by Westar
prior to or at the Closing. Senticore shall be furnished with a certificate,
signed by a duly authorized officer of Westar and dated the Closing Date, to the
foregoing effect.
5.04 Officer's Certificates.
Senticore shall have been furnished with certificates dated the Closing Date and
signed by the duly authorized Chief Operating Officer of Westar to the effect
that no litigation, proceeding, investigation, or inquiry is pending or, to the
best knowledge of Westar, threatened, which might result in an action to enjoin
or prevent the consummation of the transactions contemplated by this Agreement.
Furthermore, based on certificates of good standing, representations of
government agencies and Westar's own documents, the certificate shall represent,
to the best knowledge of the officer, that:
(a) This agreement has been duly approved by Westar's board of directors
and stockholders and has been duly executed and delivered in the name
and on behalf of Westar by its duly authorized officers pursuant to,
and in compliance with, authority granted by the board of directors of
Westar pursuant to a unanimous consent of its board of directors and a
majority vote of its stockholders;
(b) Except as provided or permitted herein, there have been no material
adverse changes in Westar up to and including the date of the
certificate;
(c) All material conditions required by this Agreement have been met,
satisfied, or performed by Westar;
(d) All authorizations, consents, approvals, registrations, and/or filings
with any governmental body, agency, or court required in connection
with the execution and delivery of the documents by Westar have been
obtained and are in full force and effect or, if not required to have
been obtained will be in full force and effect by such time as may be
required; and
(e) There is no material action, suit, proceeding, inquiry, or
investigation at law or in equity by any public board or body pending
or threatened against Westar, wherein an unfavorable decision, ruling,
or finding would have a material adverse affect on the financial
condition of Westar, the operation of Westar, or the merger
contemplated herein, or any material agreement or instrument by which
Westar is bound or would in any way contest the existence of Westar.
5.05 No Material Adverse Change.
Prior to the Closing Date, there shall not have occurred any material adverse
change in the financial condition, business or operations of Westar, nor shall
any event have occurred which, with the lapse of time or the giving of notice,
may cause or create any material adverse change in the financial condition,
business, or operations of Westar.
5.06 Completion of Due Diligence Investigation.
Senticore shall have completed its due diligence investigation of Westar and its
subsidiaries, and such investigation shall be satisfactory to Senticore in all
material respects.
5.07 Delivery of the Senticore Shares
There shall have been delivered to Xxxxx Xxxxx 14,500,000 shares of common stock
of Senticore and there shall have been delivered to Xxxxx Xxxxx 14,500,000
shares of common stock of Senticore in each case as compensation for the
services which they rendered in connection with negotiating and structuring this
merger transaction and as compensation in the nature of a finder's fee for their
role in identifying and working with Westar in order to bring this merger
transaction to fruition.
5.08 Good Standing.
Senticore shall have received a certificate of good standing (or its local
equivalent) from the appropriate authority, dated as of a date within five days
prior to the Closing Date, certifying that Westar is in good standing as a
corporation in the country of Venezuela.
5.09 Ownership Documentation.
Senticore shall have received documentation verifying that all right, title and
interest vests in Westar in and to the trade names, technology, software,
intellectual property, manufacturing equipment, inventory and assets of Westar.
5.10 Other Items.
Senticore shall have received such further documents, certificates, or
instruments relating to the transactions contemplated hereby as Senticore may
reasonably request.
ARTICLE VI
SPECIAL COVENANTS
6.01 Activities of Senticore and Westar
(a) From and after the date of this Agreement until the Closing Date and
except as set forth in the respective schedules to be delivered by
Senticore and Westar pursuant hereto or as permitted or contemplated
by this Agreement, Senticore and Westar will each:
(i) Carry on its business in substantially the same manner as it has
heretofore;
(ii) Maintain in full force and effect insurance comparable in amount
and in scope of coverage to that now maintained by it;
(iii)Perform in all material respects all of its obligations under
material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(iv) Use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain
its relationships with its material suppliers and customers;
(v) Duly and timely file for all taxable periods ending on or prior
to the Closing Date all tax returns required to be filed by or on
behalf of such entity or for which such entity may be held
responsible and shall pay, or cause to pay, all taxes required to
be shown as due and payable on such returns, as well as all
installments of tax due and payable during the period commencing
on the date of this Agreement and ending on the Closing Date; and
(vi) Fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state
laws and all rules, regulations, and orders imposed by federal or
state governmental authorities.
(b) From and after the date of this Agreement and except as provided
herein until the Closing Date, Senticore and Westar will each not:
(i) Make any change in its Articles of Incorporation or Bylaws;
(ii) Enter into or amend any material contract, agreement, or other
instrument of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary course
of business; and
(iii)Enter into any agreement for the sale of Westar or Senticore
securities without the prior written approval of the other party.
6.02 Access to Properties and Records.
Until the Closing Date, Westar and Senticore will afford to the other party's
officers and authorized representatives and attorneys full access to the
properties, books, and records of the other party in order that each party may
have full opportunity to make such reasonable investigation as it shall desire
to make of the affairs of Westar or Senticore and will furnish the other party
with such additional financial and other information as to the business and
properties of Westar or Senticore as each party shall from time to time
reasonably request.
6.03 Indemnification by Westar and the Westar Stockholders.
(a) Westar will indemnify and hold harmless Senticore and its directors
and officers, and each person, if any, who controls Senticore within
the meaning of the Securities Act from and against any and all losses,
claims, damages, expenses, liabilities, or other actions to which any
of them may become subject under applicable law (including the
Securities Act and the Securities Exchange Act) and will reimburse
them for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any claims or actions,
whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities, or actions arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a
material fact contained in any of the representations, covenants and
warranties set forth herein; or (ii) the breach of any covenant or
agreement set forth herein. The indemnity set forth herein shall
survive the consummation of the transactions herein for a period of
one year.
(b) The Westar Stockholders will indemnify and hold harmless Senticore,
Senticore's directors and officers, and each person, if any, who
controls Senticore within the meaning of the Securities Act from and
against any and all losses, claims, damages, expenses, liabilities, or
other actions to which any of them may become subject under applicable
law (including the Securities Act and the Securities Exchange Act) and
will reimburse them for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
claims or actions, whether or not resulting in liability, insofar as
such losses, claims, damages, expenses, liabilities, or actions arise
out of or are based upon: (i) any untrue statement or alleged untrue
statement of a material fact contained in any of the representations,
covenants and warranties set forth herein; or (ii) the breach of any
covenant or agreement set forth herein. The indemnity set forth herein
shall survive the consummation of the transactions herein for a period
of one year.
6.04 Indemnification by Senticore.
Senticore will indemnify and hold harmless Westar, the Westar Stockholders,
Westar's directors and officers, and each person, if any, who controls Westar
within the meaning of the Securities Act from and against any and all losses,
claims, damages, expenses, liabilities, or actions to which any of them may
become subject under applicable law (including the Securities Act and the
Securities Exchange Act) and will reimburse them for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
claims or actions, whether or not resulting in liability, insofar as such
losses, claims, damages, expenses, liabilities, or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any application or statement filed with a governmental body or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary in order to make the
statements therein not misleading, but only insofar as any such statement or
omission was made in reliance upon and in conformity with information furnished
in writing by Senticore expressly for use therein. The indemnity agreement
contained in this Section 6.04 shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of Westar and shall
survive the consummation of the transactions contemplated by this Agreement for
a period of one year.
6.05 The Merger and Issuance of Senticore Stock.
Senticore and Westar understand and agree that the consummation of this
Agreement, including the issuance of the Senticore common stock to the Westar
Stockholders as contemplated hereby, constitutes the offer and sale of
securities under the Securities Act and applicable state statutes. Senticore and
Westar agree that such transactions shall be consummated in reliance on
exemptions from the registration requirements of such statutes that depend,
among other items, on the circumstances under which such securities are
acquired.
(a) In order to provide documentation for reliance upon exemptions from
the registration requirements for such transactions, the signing of
this Agreement and the delivery of appropriate separate
representations shall constitute the Parties acceptance of, and
concurrence in, the following representations and warranties:
(i) The Westar Stockholders have received and read the Agreement and
understand the risks related to the consummation of the
transactions herein contemplated;
(ii) Westar Stockholders have such knowledge and experience in
business and financial matters that they are capable of
evaluating Senticore's business;
(iii)The Westar Stockholders have been provided with copies of all
materials and information requested by them or their
representatives, including any information requested to verify
any information furnished (to the extent such information is
available or can be obtained without unreasonable effort or
expense), and the Parties have been provided the opportunity for
direct communication regarding the transactions contemplated
hereby;
(iv) All information which the Westar Stockholders have provided to
Senticore or its representatives concerning their suitability and
intent to hold shares in Senticore following the transactions
contemplated hereby is complete, accurate, and correct;
(v) The Westar Stockholders understand that the Senticore common
stock has not been registered, but is being acquired by reason of
a specific exemption under the Securities Act as well as under
certain state statutes for transactions not involving any public
offering; and
(vi) The Westar Stockholders acknowledge that the shares of Senticore
common stock must be held and may not be sold, transferred, or
otherwise disposed of for value unless they are subsequently
registered under the Securities Act or an exemption from such
registration is available. The certificates representing the
shares shall bear the following restrictive legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING
OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED
WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
(b) In connection with the transaction contemplated by this Agreement,
Senticore shall file, with its counsel, such notices, applications,
reports, or other instruments as may be deemed necessary or
appropriate in an effort to document reliance on such exemptions, and
the appropriate regulatory authority in the states where the Senticore
shareholders reside unless an exemption requiring no filing is
available in such jurisdictions, all to the extent and in the manner
as may be deemed by such Parties to be appropriate.
(c) In order to more fully document reliance on the exemptions as provided
herein, Senticore shall execute and deliver to Westar, at or prior to
the Closing, such further letters of representation, acknowledgment,
suitability, or the like as the Westar Stockholders and their
respective counsel may request in connection with the transactions
contemplated herein, including but not limited to reliance on
exemptions from registration under applicable securities laws.
(d) (i)The Westar Stockholders acknowledge that neither the Securities and
Exchange Commission nor the securities commission of any state or
other federal agency has made any determination as to the merits of
acquiring Senticore common stock and that this transaction involves
certain risks;
(ii) The Westar Stockholders have read this Agreement and understand
the risks related to the consummation of the transactions herein
contemplated;
(iii)The Westar Stockholders and their representatives have such
knowledge and experience in business and financial matters that
they are capable of evaluating the merits of an investment in
Senticore's common stock;
(iv) The Westar Stockholders and their representatives have been
provided with copies of all materials and information requested
by them or their representatives, including any information
requested to verify any information furnished (to the extent such
information is available or can be obtained without unreasonable
effort or expense), and the Parties have been provided the
opportunity for direct communication regarding the transactions
contemplated hereby;
(v) All information which the Westar Stockholders have provided to
Senticore concerning their suitability and the transactions
contemplated hereby is complete, accurate, and correct; and
(vi) The Westar Stockholders understand and acknowledge that the
shares of Senticore to be acquired have not been registered under
the Securities Act of 1933 and are being offered and sold in
reliance upon exemptions from registration.
6.06 Securities Filings.
Prior to the date of closing, Senticore shall be responsible for the preparation
and filing of a Schedule 14C with the Securities and Exchange Commission and
Senticore shall timely make all such filings as a result of the transactions
contemplated in this Agreement.
6.07 Sales of Securities under Rule 144, If Applicable.
(a) Senticore will use its best efforts to at all times satisfy the
current public information requirements of Rule 144 promulgated under
the Securities Act.
(b) Upon being informed in writing by any person holding restricted stock
of Senticore as of the date of this Agreement that such person intends
to sell any shares under Rule 144 promulgated under the Securities Act
(including any Rule adopted in substitution or replacement thereof),
Senticore will certify in writing to such person that it is in
compliance with the Rule 144 current public information requirement to
enable such person to sell such person's restricted stock under Rule
144, and as may be applicable under the circumstances.
(c) If any certificate representing any such restricted stock is presented
to Senticore's transfer agent for registration or transfer in
connection with any sales theretofore made under Rule 144, provided
such certificate is duly endorsed for transfer by the appropriate
person(s) or accompanied by a separate stock power duly executed by
the appropriate person(s) in each case with reasonable assurances that
such endorsements are genuine and effective, and is accompanied by an
opinion of counsel satisfactory to Senticore and its counsel that such
transfer has complied with the requirements of Rule 144, as the case
may be, Senticore will promptly instruct its transfer agent to allow
such transfer and to issue one or more new certificates representing
such shares to the transferee and, if appropriate under the provisions
of Rule 144, as the case may be, free of any stop transfer order or
restrictive legend.
(d) The shareholders of Senticore as of the date of this Agreement, as
well as those receiving Senticore common stock pursuant to this
Agreement, are intended third-party beneficiaries of this Section
6.08.
ARTICLE VII
MISCELLANEOUS
7.01 Brokers.
No broker's or finder's fee will be paid in connection with the transaction
contemplated by this Agreement.
7.02 No Representation Regarding Tax Treatment.
No representation or warranty is being made by any party to any other party
regarding the treatment of this transaction for federal or state income
taxation. Each party has relied exclusively on its own legal, accounting, and
other tax adviser regarding the treatment of this transaction for federal and
state income taxes and on no representation, warranty, or assurance from any
other party or such other party's legal, accounting, or other adviser.
7.03 Governing Law.
This Agreement shall be governed by, enforced and construed under and in
accordance with the laws of the State of Delaware without giving effect to
principles of conflicts of law thereunder. All controversies, disputes or claims
arising out of or relating to this Agreement shall be resolved by binding
arbitration. The arbitration shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. Each
arbitrator shall possess such experience in, and knowledge of, the subject area
of the controversy or claim so as to qualify as an "expert" with respect to such
subject matter. The prevailing party shall be entitled to receive its reasonable
attorney's fees and all costs relating to the arbitration. Any award rendered by
arbitration shall be final and binding on the Parties, and judgment thereon may
be entered in any court of competent jurisdiction.
7.04 Notices.
Any notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered, if sent by facsimile or telecopy
transmission or other electronic communication confirmed by registered or
certified mail, postage prepaid, or if sent by prepaid overnight courier
addressed as follows:
If to Senticore, to:
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxx
If to Westar, to:
[Address to come]
Attn: Xxxxxxx X. Xxxxx
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices, hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered or sent by facsimile or
telecopy transmission or other electronic communication, or one day after the
date so sent by overnight courier.
7.05 Attorney's Fees.
In the event that any party institutes any action or suit to enforce this
Agreement or to secure relief from any default hereunder or breach hereof, the
breaching party or parties shall reimburse the non-breaching party or parties
for all costs, including reasonable attorneys' fees, incurred in connection
therewith and in enforcing or collecting any judgment rendered therein.
7.06 Schedules; Knowledge.
Whenever, in any section of this Agreement, reference is made to information set
forth in the schedules provided by Senticore or Westar, such reference is to
information specifically set forth in such schedules and clearly marked to
identify the section of this Agreement to which the information relates.
Whenever any representation is made to the "knowledge" of any party, it shall be
deemed to be a representation that no officer or director of such party, after
reasonable investigation, has any knowledge of such matters.
7.07 Entire Agreement.
This Agreement represents the entire agreement between the Parties relating to
the subject matter hereof. All previous agreements between the Parties, whether
written or oral, have been merged into this Agreement. This Agreement alone
fully and completely expresses the agreement of the Parties relating to the
subject matter hereof. There are no other courses of dealing, understandings,
agreements, representations, or warranties, written or oral, except as set forth
herein.
7.08 Survival, Termination.
The representations, warranties, and covenants of the respective Parties shall
survive the Closing Date and the consummation of the transactions herein
contemplated for a period of one year from the Closing Date, unless otherwise
provided herein.
7.09 Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
7.10 Amendment or Waiver.
Every right and remedy provided herein shall be cumulative with every other
right and remedy, whether conferred herein, at law, or in equity, and such
remedies may be enforced concurrently, and no waiver by any party of the
performance of any obligation by the other shall be construed as a waiver of the
same or any other default then, theretofore, or thereafter occurring or
existing. At any time prior to the Closing Date, this Agreement may be amended
by a writing signed by all Parties hereto, with respect to any of the terms
contained herein, and any term or condition of this Agreement may be waived or
the time for performance thereof may be extended by a writing signed by the
party or parties for whose benefit the provision is intended.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the date first above written.
SENTICORE, INC. WESTAR SOUTH AMERICA, S.A.
By: /s/Xxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------- --------------------
Xxxx Xxxxxxx Xxxxxxx X. Xxxxx
President President
WESTAR STOCKHOLDERS:
XXXXXXX XXXXXXX XXXXX
/s/ Xxxxxxx X. Xxxxx
(In His Individual Capacity)
ROMILYS XXXXXXX XXXXX
/s/ Romilys Xxxxxxx Xxxxx
(In Her Individual Capacity)