EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER ("this Agreement") made and
entered into this 25th day of January, 2000, by and between JETCO, INC., herein
sometimes referred to as "Jetco" or the "Surviving Corporation", a Delaware
corporation, and AMERISTAR CORP., herein sometimes referred to as "Amstar" or
the "Disappearing Corporation", a Nevada corporation.
WHEREAS:
A. Jetco and Amstar (together sometimes referred to as the
"Constituent Corporations"), desire to merger pursuant to the
applicable statutes of the States of Delaware and Nevada, in
accordance with the terms and conditions hereinafter set forth.
The Constituent Corporations also desire that this be a
reorganization free of tax and be governed by Section 368 (a) (1)
(A) of the Internal Revenue Code.
B. Jetco is duly organized and existing under the General
Corporation Law of the State of Delaware, having been
incorporated on April 27, 1998.
C. Amstar is duly organized and existing under the laws of the State
of Nevada, having been incorporated on October 27, 1999.
D. Jetco has an authorized capital stock consisting of 8,000,000
shares of preferred stock of the par value of $0.001 per share
(the "Jetco Preferred"), of which none of the shares have been
issued, and 100,000,000 shares of common stock of the par value
of $0.001 per share (the "Jetco Stock"), of which 1,250,000
shares are now issued and outstanding.
E. Amstar has an authorized capital stock consisting of 10,000
shares of common stock of the par value of $0.01 per share (the
"Amstar stock"), of which 9,500 are now issued and outstanding.
NOW, THEREFORE, the Constituent Corporations do hereby agree each with the other
that Amstar be merged into Jetco as the Surviving Corporation, pursuant to the
applicable states of the States of Delaware and Nevada, subject to the following
terms and conditions:
1. CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION. On the merger
date, as that term is defined in Paragraph 18 below, the Certificate of
Incorporation of Jetco, Inc., amended and restated in its entirety in the
form set forth in Exhibit "A" hereto (which restatement shall become
effective only upon consummation of the Merger) shall be the Articles of
Incorporation of the Surviving Corporation. As set forth in the Certificate
of Incorporation of the Surviving Corporation, the name of the Surviving
Corporation shall be "InTec, Inc."
2. BYLAWS OF THE SURVIVING CORPORATION: The Bylaws of Jetco in force on the
Merger Date shall be the Bylaws of the Surviving Corporation until altered,
amended or repealed.
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3. DIRECTORS OF THE SURVIVING CORPORATION: Until changed, the number of
persons who shall constitute the Board of Directors of the Surviving
Corporation shall be five. The names and address of the persons who shall
be directors of the Surviving Corporation on and after the Merger Date are:
Name Address
---
O. Xxxxxxx Xxxxxxxx, Xx. 000 Xxxxx 0000 Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxx 0000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx 00000 Xxxxxxx Xxxx., 0xx Xx.
Xxxxxxx Xxxx, XX 00000
Xxxxx X. Xxxxxxx 0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Each of the aforesaid shall hold such office until the Jetco annual meeting
of the shareholders of the Surviving Corporation and until their respective
successors shall have been duly elected and qualified.
4. OFFICERS OF THE SURVIVING CORPORATION. On the Merger Date, the following
persons shall be the officers of the Surviving Corporation , whose names and
address are set forth below:
Name Office Address
---- ------ -------
O. Xxxxxxx Xxxxxxxx, Xx. Chief Executive Officer 000 Xxxxx 0000 Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxx President 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
S. Xxxxx Xxxxx Executive Vice President 0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Xxxxx X. Xxxxxxx Senior Vice President - 00000 Xxxxxxx Xxxx.,
Finance, Treasurer 2nd Fl.
Xxxxxxx Xxxx, XX 00000
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Xxxxx X. Xxxxxxx Senior Vice President - 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx Xxxxxxx, XX 00000
Xxxx X. Xxxxxx Vice President - 0000 Xxxxx Xxxxxx
Xxxxxxxxx Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxx Vice President - Business 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxx Xxxxxxx, XX 00000
Xxxxx Xxxxx Vice President - 00 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxxxx Xxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxx Secretary 00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Each of the aforesaid shall hold the office set forth after his or her
respective name until a successor shall be elected or appointed in the manner
provided by the Surviving Corporation's Bylaws.
5. Conversion of shares of the Constituent Corporations. The manner of
converting shares of the Constituent Corporations into shares of the Surviving
Corporation shall be as follows:
(A) Each share of the Jetco Stock issued and outstanding on the
Merger Date shall continue to be one share of Jetco Stock.
(B) Each share of the Amstar Stock issued and outstanding on the
Merger Date shall, without any action by the holders there, be changed
and converted into 2,500 Jetco Shares; provided, however, that no
fractional shares of the Surviving Corporation shall be issued. In
lieu thereof, the Surviving Corporation shall round-up fractional
shares to the next highest number.
(C) All outstanding warrants, option and all other outstanding
rights to purchase shares of Amstar Stock shall be adjusted, pursuant
to the terms contained in such option, warrant or other rights
documents, for conversion to warrants, options or rights to purchase
stock of the Surviving Corporation on the same ratio as provided
herein for holders of the Amstar Stock.
(D) The number of Jetco Shares to be issued in exchange for
shares of the Amstar Stock hereunder shall be proportionately reduced
by any shares owned by Amstar shareholders who shall have timely
objected to the merger (the "Dissenting Shares") in accordance with
the provisions of the laws of Nevada, which objections will be dealt
with as provided in those sections.
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(E) On the Merger Date, the capital of the Surviving Corporation
shall be an amount equal to the aggregate par value of all of the
issued shares of capital stock of the Surviving Corporation, after
giving effect to the terms and provisions of this Agreement. Each
certificate evidencing ownership of shares of Jetco Stock issued and
outstanding on the Merger Date, or held by the Surviving Corporation
in its treasury shall continue to evidence ownership of the same
number of shares of Jetco Stock.
6. EXCHANGE OF CERTIFICATES. As promptly as practicable after the Merger Date,
each holder of an outstanding certificate or certificates theretofore
representing Amstar Stock (other than certificates representing Dissenting
Shares) shall surrender such certificate(s) for cancellation to the party
designated by the Surviving Corporation to handle such exchange (the
"Exchange Agent"), and shall receive in exchange a certificate or
certificates representing the number of full shares of the Jetco Stock into
which the shares of the Amstar Stock represented by the certificate or
certificates so surrendered shall have been converted.
7. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding certificate
that prior to the Merger Date represented the Amstar Stock (other than
certificates representing Dissenting Shares) shall be deemed for all
purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of Amstar Stock into which it
was converted. No dividend or other distribution payable to holders of the
Surviving Corporation common stock as of any date subsequent to the Merger
Date shall be paid to the holders of outstanding certificates of the Amstar
Stock; provided, however, that upon surrender and exchange of such
outstanding certificates (other than certificates representing Dissenting
Shares), there shall be paid to the record holders of the certificates
issued in exchange therefor the amount, without interest thereon, of
dividends and other distributions that would have been payable subsequent
to the Merger Date with respect to the shares of Jetco Stock represented
thereby.
8. EFFECT OF THE MERGER. On the Merger Date, the separate existence of the
Disappearing Corporation shall cease (except insofar as continued by
statute), and it shall be merged with and into the Surviving Corporation.
All the property, real, personal, and mixed, of each of the Constituent
Corporations, and all debts due to either of them, shall be transferred to
and vested in the Surviving Corporation, without further act or deed. The
Surviving Corporation shall thenceforth be responsible and liable for all
the liabilities and obligations, including liabilities to holders of
Dissenting Shares, of each of the Constituent Corporations, and any claim
or judgment against either of the Constituent Corporations may be enforced
against the Surviving Corporation.
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9. APPROVAL OF SHAREHOLDERS. This Agreement shall be adopted by the
shareholders of the Constituent Corporations at meetings of such
shareholders called for that purpose or by written consent pursuant to the
laws applicable thereto. There shall be required for the adoption of this
Agreement the affirmative vote of the holders of at least a majority of the
holders of all the shares of the common stock issued and outstanding and
entitled to vote for each of the Constituent Corporations.
10. Representations and Warranties of Jetco. Jetco represents and warrants to
Amstar that:
(A) Corporate Organization and Good Standing. Jetco is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware and is qualified to do
business as a foreign corporation in each jurisdiction, if any, in
which its property or business requires such qualification. Jetco does
not have any subsidiaries nor any direct or indirect interest in any
corporation, firm or unincorporated association. (
B) Capitalization. Jetco's authorized capital stock consists of
8,000,000 shares of preferred stock, $0.001 par value, of which none
of the shares have been issued, and 100,000,000 shares of common
stock, $.001 par value, of which 1,250,000 shares are issued and
outstanding.
(C) Issued Stock. All the outstanding shares of the Jetco Stock
are duly authorized and validly issued, fully paid and nonassessable.
(D) Corporate Authority. Jetco has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this Agreement and all other
agreements and instruments related to this Agreement.
(E) Authorization. Execution of this Agreement has been duly
authorized and approved by Jetco's board of directors.
(F) Financial Statements. Jetco's balance sheet and the related
statements of income and retained earnings for and as at the periods
ended August 31, 1999, and December 31, 1999 (the "Jetco Financial
Statements"), audited by Xxxxxxxx & Co., PA (Jetco's accountant),
annexed hereto as Exhibit B fairly present the financial condition of
Jetco as of the dates thereof and the results of operations for the
periods then ended all conformity with generally accepted accounting
principles consistently applied.
(G) Title. Jetco has good and marketable title to all the real
property and good and valid title to all other property included in
the Jetco Financial Statements. Except as set out in the balance
sheets thereof, the properties of Jetco are not subject to any
mortgage, encumbrance, or lien of any kind except minor encumbrances
that do not materially interfere with the use of the property in the
conduct of the business of Jetco
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(H) Absence of Undisclosed Liabilities. Except to the extent
reflected or reserved in the Jetco Financial Statements, Jetco did not
have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) or any liability or obligation for taxes,
federal, state or foreign.
(I) No Material Changes. There has been no material adverse
change in the business, properties, or condition, financial or
otherwise, of Jetco since the date of the Jetco Financial Statements.
(J) Litigation. There is not, to the knowledge of Jetco, any
pending, threatened, or existing litigation, bankruptcy, criminal,
civil, or regulatory proceeding or investigation, threatened or
contemplated against Jetco or against any of its officers.
(K) Contracts. Except for a one-year employment agreement between
Jetco and Xxxxx X. Xxxxxxx (the "Xxxxxxx Agreement") for his services
as the chief financial officer of the surviving corporation, Jetco is
not a party to any contract that is to be performed in whole or in
part at or after the date of this Agreement.
(L) Tax Returns. All federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all
interest, penalties and additions imposed with respect to such
amounts, have been properly prepared and filed by Jetco for all years
to and including the taxable year ending December 31, 1998. The
provisions for federal and state taxes reflected in the Jetco
Financial Statements are adequate to cover any such taxes that may be
assessed against Jetco in respect of its business and its operations
during the periods covered by the Jetco Financial Statements and all
prior periods.
(M) No Violation. Consummation of the merger will not constitute
or result in a breach or default under any provision of any charter,
bylaw, indenture, mortgage, lease, or agreement, or any order,
judgment, decree, law, or regulation to which any property of Jetco is
subject or by which Jetco is bound.
(N) Reporting Company. Jetco has filed with the Securities and
Exchange Commission ("SEC") a registration statement on Form 10 which
was became effective pursuant to the Securities Exchange Act of 1934
and is a reporting company pursuant to ss.12 thereunder.
(O) Reporting Company Status. Jetco has timely filed and is
current on all reports required to be filed by it pursuant to ss.12(g)
of the Securities Exchange Act of 1934, and until the Merger Date,
shall continue to file all such reports when each shall become due.
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11. REPRESENTATIONS AND WARRANTIES OF AMSTAR. Amstar represents and warrants to
Jetco that:
(A) Corporate Organization and Good Standing. Amstar is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Nevada and is qualified to do business
as a foreign corporation in each jurisdiction, if any, in which its
property or business requires such qualification. Amstar has no
subsidiaries, nor any direct or indirect interest in any other
corporation, firm or other unincorporated entity.
(B) Capitalization. Amstar's authorized capital stock consists of
10,000 shares of common stock, $0.01 par value, of which 9,500 shares
are issued and outstanding.
(C) Stock Rights. Except as set forth in Exhibit C hereto, there
are no stock grants, options, rights, warrants or other rights to
purchase or obtain shares of the Amstar Stock issued or committed to
be issued.
(D) Issued Stock. All the outstanding shares of Amstar Stock were
duly authorized and are validly issued, fully paid and non-assessable.
(E) Corporate Authority. Amstar has all requisite corporate power
and authority to own, operate and lease its properties, to carry on
its business as it is now being conducted and to execute, deliver,
perform and conclude the transactions contemplated by this Agreement
and all other agreements and instruments related to this Agreement.
(F) Authorization. Execution of this Agreement has been duly
authorized and approved by Amstar's board of directors.
(G) Financial Statement. Amstar has not conducted any business
activities except to issue shares of the Amstar Stock and to enter
into a Loan Agreement and a Subscription Agreement with [Investor]
(the "[Investor] Agreements"), true copies of which has been delivered
to Jetco. Within thirty (30) days of the Merger Date, Amstar will have
prepared audited financial statements as at and for the period
December 31, 1999 (the "Amstar Financial Statement"). The Amstar
Financial Statement will fairly present the financial condition of
Amstar as of December 31, 1999 and the results of its operations for
the periods then ended all in conformity with generally accepted
accounting principles consistently applied.
(H) Absence of Undisclosed Liabilities. Except to the extent
reflected or reserved against in the Amstar Financial Statement,
Amstar did not have at that date any liabilities or obligations
(secured, unsecured, contingent, or otherwise) of a nature customarily
reflected in a corporate balance sheet prepared in accordance with
generally accepted accounting principles.
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(I) No Material Changes. There has been no material adverse
change in the business, properties, or financial condition of Amstar
since the date of the Amstar Financial Statement.
(J) Litigation. There is not, to the knowledge of Amstar, any
pending, threatened, or existing litigation, bankruptcy, criminal,
civil, or regulatory proceeding or investigation, threatened or
contemplated against Amstar or against any of its officers.
(K) Contracts. Except for the [Investor] Agreements, Amstar is
not a party to any material contract not in the ordinary course of
business that is to be performed in whole or in part at or after the
date of this Agreement.
(L) Title. Amstar has good and marketable title to all the real
property and good and valid title to all other property included in
the Amstar Financial Statement. Except as set out in the balance sheet
thereof, the properties of Amstar are not subject to any mortgage,
encumbrance, or lien of any kind except as disclosed in the Amstar
Financial Statement.
(M) Tax Returns. Amstar has not filed and is now not required to
file any federal, state or local tax returns. The provisions for
federal and state taxes reflected in the Amstar Financial Statement
will be adequate to cover all such taxes that may be assessed against
Amstar in respect of its business and its operations during the period
covered by the Amstar Financial Statement and all prior periods.
(N) No Violation. Consummation of the merger will not constitute
or result in a breach or default under any provision of any charter,
bylaw, indenture, mortgage, lease, or agreement, or any order,
judgment, decree, law, or regulation to which any property of Amstar
is subject or by which Amstar is bound.
12. Binding Nature of Certain Contracts. Jetco and Amstar agree that the
[Investor] Agreements and the Xxxxxxx Agreement shall survive the merger
and shall be carried out by the Surviving Corporation in accordance with
the terms and tenor of each said contract.
13. Conduct of Jetco Pending the Merger Date. Jetco covenants and agrees with
Amstar that between the date of this Agreement and the Merger Date:
(A) No change will be made in Jetco's articles of incorporation
or bylaws.
(B) Jetco will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or
issue, encumber, purchase, or otherwise acquire any of its capital
stock other than as provided herein.
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(C) Jetco will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors and
will use its best efforts to obtain the requisite shareholder
approval.
(D) Jetco will use its best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact,
and will not enter into any material commitment except in the ordinary
course of its business which commitment can be canceled without
penalty on not more than 30 days' notice.
14. Conduct of Amstar Pending the Merger Date Amstar covenants to and agrees
with Jetco that between the date of this Agreement and the Merger Date:
(A) No change will be made in Amstar's certificate of
incorporation or bylaws.
(B) Amstar will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or
issue, encumber, purchase, or otherwise acquire any of its capital
stock otherwise than as provided herein.
(C) Amstar will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors and
will use its best efforts to obtain the requisite shareholder
approval.
(D) Amstar will use its best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact,
and will not enter into any material commitment except in the ordinary
course of business.
15. CONDITIONS PRECEDENT TO OBLIGATION OF JETCO. Jetco's obligation to
consummate this merger shall be subject to fulfillment on or before the
Merger Date of each of the following conditions, unless waived in writing
by Jetco:
(A) Amstar's Representations and Warranties. The representations
and warranties of Amstar set forth herein shall be true and correct at
the Merger Date as though made at and as of that date, except as
affected by transactions contemplated hereby.
(B) Amstar's Covenants. Amstar shall have performed all covenants
required by this Agreement to be performed by it on or before the
Merger Date.
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(C) Shareholder Approval. This Agreement shall have been approved
by the required number of shareholders of Jetco.
(D) Amstar Financial Statements. Amstar shall have delivered the
Amstar Financial Statements.
(E) Supporting Documents of Amstar. Amstar shall have delivered
to Jetco supporting documents in form and substance satisfactory to
Jetco, to the effect that:
(i) Amstar is a corporation duly organized, validly
existing, and in good standing;
(ii) Amstar's authorized and issued capital stock is as set
forth herein; and
(iii) The execution and consummation of this Agreement have
been duly authorized and approved by Amstar's board of directors.
16. CONDITIONS PRECEDENT TO OBLIGATION OF AMSTAR. Amstar's obligation to
consummate this merger shall be subject to fulfillment on or before the
Merger Date of each of the following conditions, unless waived in writing
by Amstar:
(A) Jetco's Representations and Warranties. The representations
and warranties of Jetco set forth herein shall be true and correct at
the Merger Date as though made at and as of that date, except as
affected by transactions contemplated hereby and shall be applicable
to the Jetco's financial statements referred to in subparagraph (C)
hereof.
(A) Jetco's Covenants. Jetco shall have performed all covenants
and agreements required by this Agreement to be performed by it on or
before the Merger Date.
(B) Shareholder Approval. This Agreement shall have been approved
by the required number of shareholders of Amstar.
(C) Financial Statements; SEC Reports. Jetco shall have delivered
to Amstar:
(i) the financial statements of Jetco as at and for the
period ended December 31, 1999, certified by Jetco's accountants;
and
(ii) a true copy of each report filed or required to be
filed by Jetco with the SEC.
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(D) Supporting Documents of Jetco. Jetco shall have delivered to
Amstar supporting documents in form and substance satisfactory to
Amstar to the effect that:
(i) Jetco is a corporation duly organized, validly existing,
and in good standing;
(ii) Jetco's authorized and issued capital stock is as set
forth herein; and
(iii) The execution and consummation of this Agreement have
been duly authorized and approved by Jetco's board of directors.
17. ACCESS. From the date hereof to the Merger Date, Amstar and Jetco shall
provide each other with such information and permit each other's officers
and representatives such access to its properties and books and records as
the other may from time to time reasonably request. If the merger is not
consummated, all documents received in connection with this Agreement shall
be returned to the party furnishing such documents, and all information so
received shall be treated as confidential.
18. MERGER DATE. The Merger shall become effective (the "Merger Date") on
January 25, 2000.
19. TIME OF FILINGS. The Certificate of Merger shall be filed with the
Secretary of State of Delaware upon the approval of this Agreement by the
shareholders of the Constituent Corporations and the fulfillment or waiver
of the terms and conditions herein.
20. CLOSING. The transfers and deliveries to be made pursuant to this Agreement
(the "Closing") shall be made by and take place at the offices of the
Exchange Agent or such place agreed upon by Jetco and Amstar without
requiring the meeting of the parties hereof. All proceedings to be taken
and all documents to be executed at the Closing shall be deemed to have
been taken, delivered and executed simultaneously, and no proceeding shall
be deemed taken nor documents deemed executed or delivered until all have
been taken, delivered and executed.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission required by this Agreement or any signature required
thereon may be used in lieu of an original writing or transmission or signature
for any and all purposes for which the original could be used, provided that
such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission or original
signature.
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21. Amstar's Closing Documents. At the Closing, Amstar shall deliver to the
Exchange Agent in satisfactory form, if not already delivered to Surviving
Corporation:
(A) A list of the holders of the shares of the Amstar Stock being
exchanged with an itemization of the number of shares held by each,
the address of each holder, and the aggregate number of shares of
Jetco Stock to be issued to each such holder.
(B) Evidence of the consent of shareholders of Amstar to this
Agreement.
(C) Certificate of the Secretary of State of Nevada as of a
recent date as to Amstar's good standing.
(D) Certified copies of the resolutions of Amstar's board of
directors authorizing the execution of this Agreement and the
consummation of the Merger.
(E) Secretary's certificate of incumbency of Amstar's officers
and directors.
(F) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
22. JETCO'S CLOSING DOCUMENTS. At the Closing, Jetco shall deliver to the
Exchange Agent in satisfactory form, if not already delivered to Amstar
(A) A list of Jetco's shareholders of record, including, wherever
available, addresses and telephone numbers.
(B) Evidence of the consent of Jetco's shareholders to this
Agreement.
(C) Certificate of the Secretary of State of Delaware as of a
recent date as to the good standing of Jetco.
(D) Certified copies of the resolutions of Jetco's board of
directors authorizing the execution of this Agreement and the
consummation of the merger.
(E) Secretary's certificate of incumbency of Jetco's officers and
directors.
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(F) The opinion of counsel for Jetco to the effect that:
(i) based upon such examination as such counsel shall state,
such counsel has no knowledge that the representations and
warranties made by Jetco herein are incorrect or fail to state a
material fact necessary in order to make such statement correct
and not misleading;
(ii) the merger is effective and Jetco is the surviving
corporation; and
(iii) all shares of the Jetco Stock issued and outstanding
following the merger have been duly authorized and are fully paid
and non-assessable under applicable Delaware law.
(G) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
23. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
24. TERMINATION. Unless the Merger Date shall have occurred prior to March 31,
2000, and unless such date has been extended by a writing signed by each
party, this Agreement and the obligations of the parties hereto shall be
void, and each of the parties shall pay for all of the costs and expenses
incurred by such party in the negotiation and consummation of this
Agreement and the transactions herein contemplated.
25. ARBITRATION
(A) Scope and Situs. The parties hereby agree that any and all
claims (except only for requests for injunctive or other equitable
relief) whether existing now, in the past or in the future as to which
the parties or any affiliates may be adverse parties, and whether
arising out of this agreement or from any other cause, will be
resolved by arbitration before the American Arbitration Association in
the State of California. Any award in arbitration may be entered in
any domestic or foreign court having jurisdiction over the enforcement
of such awards
(B) Applicable Law. The law applicable to the arbitration and
this agreement shall be that of the State of Delaware, determined
without regard to its provisions which would otherwise apply to a
question of conflict of laws. Any dispute as to the applicable law
shall be decided by the arbitrator.
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(C) Disclosure and Discovery. The arbitrator may, in its
discretion, allow the parties to make reasonable disclosure and
discovery in regard to any matters which are the subject of the
arbitration and to compel compliance with such disclosure and
discovery order. The arbitrator may order the parties to comply with
all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by
the arbitrator consistent with the desire to simplify the conduct and
minimize the expense of the arbitration.
(D) Application of Governing Law. Regardless of any practices of
arbitration to the contrary, the arbitrator will apply the rules of
contract and other law of the jurisdiction whose law applies to the
arbitration so that the decision of the arbitrator will be, as much as
possible, the same as if the dispute had been determined by a court of
competent jurisdiction.
(E) Finality and Fees. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable
except as to errors of law. Each party to the arbitration shall pay
its own costs and counsel fees.
(F) Measure of Damages. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and no claims
shall be made by any party or affiliate for lost profits, punitive or
multiple damages.
(G) No Suit. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever
arising, from whatever cause, based on whatever law, rule or
regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that
no party or affiliate be required to litigate in any other forum any
disputes or other matters except for requests for injunctive or
equitable relief. This Agreement shall be interpreted in conformance
with this stated intent of the parties and their affiliates.
26. General Provisions
(A) Further Assurances. From time to time, each party will
execute such additional instruments and take such actions as may be
reasonably required to carry out the intent and purposes of this
Agreement.
(B) Waiver. Any failure on the part of either party hereto to
comply with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed.
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(C) Brokers. Each party agrees to indemnify and hold harmless the
other party against any fee, loss, or expense arising out of claims by
brokers or finders employed or alleged to have been employed by the
indemnifying party; provided, however, that any claim made to a party
shall be promptly conveyed by notice to the other and the party
against whom the claim is made shall have the right to defend the
claim and any action arising therefrom, at its own expense and by
counsel selected by it.
(D) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first class certified mail, return receipt
requested, or recognized commercial courier service, as follows:
If to Jetco:
Jetco, Inc.
000 Xxx xx xx Xxx, Suite E-1
Xxxxxxx Xxxxxxxxx, XX 00000
If to Amstar, to:
AmeriStar Corp.
c/o AmeriStar Network, Inc.
000 Xxxxx Xxxx Xxxxx, Xxxxx X-000
Xx. Xxxxxx, XX 00000
(D) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware for agreements entered into and intended to be carried out
entirely in Delaware.
27. Assignment. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this
Agreement without the written consent of the other party shall be void.
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28. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Signatures sent by facsimile
transmission shall be deemed to be evidence of the original execution
thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
JETCO, INC.
/s/ Xxxxxx X. Xxxx
-------------------------------
By: Xxxxxx X. Xxxx
President
AMERISTAR CORP.
/s/ O. Xxxxxxx Xxxxxxxx, Xx.
-------------------------------
By: O. Xxxxxxx Xxxxxxxx, Xx.
Chairman of the Board & CEO
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