EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
TELIPHONE INC.
AND
OSK II ACQUISITION CORP.
AND
OSK CAPITAL II CORP.
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
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 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 1080, Cote du Beaver Hall Bureau 1555 Montreal (Quebec) 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 (ii) Beverly 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.
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
Quebec, 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, 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.
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 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,
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.
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
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.
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 Beverly Hills Trading Corporation Inc. financed by Beverly
Hills Trading Corporation Inc. and or Joseph Emas 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
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
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 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:
OSK CAPITAL II
232, Place Cartier
Saint-Lambert,Quebec
J4R 2V8
With a copy to:
Joseph I. Emas
Attorney at Law
1224 Washington Avenue
Miami Beach, Florida 33139
Telephone: (305) 531-1174
If to the Company:
TeliPhone Inc.
1080 Beaver Hall, 15th Floor
Montreal, Quebec, Canada
Telephone: (514) 313-6010
Facsimile:( 514) 313-6001
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 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.
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]
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: By:
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Name: Robert Cajolet Name: George Metrakos
Title: Chief Executive Officer Title: Chief Executive Officer
MERGER SUB
OSK II ACQUISITION CORP.
By:
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Name:
Title: President