Exh. 10-a
AGREEMENT AND PLAN OF MERGER
by and among
Ostar Pharmaceutical, Inc.
Ostar Acquisition Corp.
and
Central American Equities Corp.
Dated as of March 13, 2006
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger dated as of March 13, 2006 (the
"Agreement") by and among Central American Equities Corp., a corporation
formed under the laws of the State of Florida ("CAE"), Ostar Acquisition
Corp., a corporation newly formed under the laws of the State of Delaware
and a wholly owned subsidiary of CAE (the "Merger Sub"), Ostar
Pharmaceutical, Inc., a corporation formed under the laws of the State of
Delaware ("Ostar"), and the following CAE Shareholders: Xxxxxxx X.
Xxxxxxxx, X.X. Xxxxxxxx MD Inc. Pension Fund, P. Xxxxx Xxxxxxxx and
Xxxxxxx Xx. Xxxxxx, (the "Shareholders"). CAE, the Merger Sub, Ostar and
the Principal Shareholders are referred to herein individually as a "Party"
and collectively as the "Parties."
PREAMBLE
WHEREAS, CAE and Ostar have determined that a business combination
between them is advisable and in the best interests of their respective
companies and stockholders, and presents an opportunity for their
respective companies to achieve long-term strategic and financial benefits;
WHEREAS, CAE has proposed to acquire Ostar pursuant to a merger
transaction whereby, pursuant to the terms and subject to the conditions of
this Agreement, Ostar shall become a wholly owned subsidiary of CAE through
the merger of Ostar with and into the Merger Sub (the "Merger"); and
WHEREAS, in the Merger all issued and outstanding shares of capital
stock of Ostar held by the stockholders of Ostar (the "Ostar Stockholders")
shall be cancelled and converted into the right to receive 37,858,447 shares
of common stock of CAE, $0.001 par value per share and 300,000 shares of
Series C Convertible Preferred Stock of CAE, $0.001 per share, or such number of
shares of CAE as shall represent 98.70 % of the issued and outstanding common
stock of CAE , on a fully diluted basis, after the merger (the "Merger
Shares").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations and warranties contained herein, the Parties,
intending to be legally bound, hereby agree as follows:
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings set forth below:
"Applicable Law" means any domestic or foreign law, statute, regulation,
rule, policy, guideline or ordinance applicable to the businesses of the
Parties, the Merger and/or the Parties.
"DGCL" means Delaware General Corporation Law.
"GAAP" means generally accepted accounting principles in the United States
of America as promulgated by the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board or any successor
institutes concerning the treatment of any accounting matter.
"Knowledge" means, in the case of CAE, a particular fact or other matter of
which any of the Shareholders is actually aware or which a prudent
individual could be expected to discover or otherwise become aware of in
the course of conducting a reasonable review or investigation of CAE and
its business and affairs; and in the case of Ostar means a particular fact
or other matter of which its President is actually aware or which a prudent
individual could be expected to discover or otherwise become aware of in
the course of conducting a reasonable review or investigation of Ostar and
its business and affairs.
"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, claim, encumbrance, royalty interest,
any other adverse claim of any kind in respect of such property or asset,
or any other restrictions or limitations of any nature whatsoever.
"Material Adverse Effect" with respect to any entity or group of entities
means any event, change or effect that has or would have a materially
adverse effect on the financial condition, business or results of
operations of such entity or group of entities, taken as a whole.
"Person" means any individual, corporation, partnership, trust or
unincorporated organization or a government or any agency or political
subdivision thereof.
"Surviving Entity" shall mean Ostar as the surviving entity in the Merger
as provided in Section 1.03.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means:
(i) any income, alternative or add-on minimum tax, gross receipts
tax, sales tax, use tax, ad valorem tax, transfer tax, franchise tax,
profits tax, license tax, withholding tax, payroll tax, employment tax,
excise tax, severance tax, stamp tax, occupation tax, property tax,
environmental or windfall profit tax, custom, duty or other tax, impost,
levy, governmental fee or other like assessment or charge of any kind
whatsoever together with any interest or any penalty, addition to tax or
additional amount imposed with respect thereto by any governmental or Tax
authority responsible for the imposition of any such tax (domestic or
foreign), and
(ii) any liability for the payment of any amounts of the type
described in clause (i) above as a result of being a member of an
affiliated, consolidated, combined or unitary group for any Taxable period,
and
(iii) any liability for the payment of any amounts of the type
described in clauses (i) or (ii) above as a result of any express or
implied obligation to indemnify any other person.
"Tax Return" means any return, declaration, form, claim for refund or
information return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof.
ARTICLE I
THE MERGER
SECTION 1.01 THE MERGER.
Upon the terms and subject to the conditions set forth in this
Agreement and in accordance with the DGCL, at the Effective Time (as
hereinafter defined), all Ostar Shares (as hereinafter defined) shall be
cancelled and converted into the right to receive the Merger Shares. In
connection therewith, the following terms shall apply:
(a) Exchange Agent. Xxxxxx Xxxxxx, counsel to Ostar, shall act as
the exchange agent (the "Exchange Agent") for the purpose of exchanging
Ostar Shares for the Merger Shares. At or prior to the Closing, CAE shall
deliver to the Exchange Agent the Merger Shares.
(b) Conversion of Securities.
(i) Conversion of Ostar Securities. At the Effective Time,
by virtue of the Merger and without any action on the part of CAE, Ostar or
the Merger Sub, or the holders of any of their respective securities:
(A) Each of the issued and outstanding shares of common
stock of Ostar (the "Ostar Shares") immediately prior to the Effective Time
shall be converted into and represent the right to receive, and shall be
exchangeable for, that number of shares of common stock of CAE as shall be
determined by dividing 37,858,447 by the number of then issued and
outstanding Ostar Shares, and that number of shares of Series C Convertible
Preferred Shares of CAE as shall be determined by dividing 300,000 by the
number of then issued and outstanding Ostar Shares (the "Ostar Conversion
Rates").
(B) All Ostar Shares shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist, and
each holder of a certificate representing any such shares shall cease to
have any rights with respect thereto, except the right to receive the
Merger Shares to be issued pursuant to this Section 1.01(b)(i) upon the
surrender of such certificate in accordance with Section 1.07, without
interest. No fractional shares may be issued; but each fractional share
that would result from the Merger will be rounded to the nearest number of
whole shares.
(C) The Merger Shares shall represent 98.70%, on a
fully diluted basis, of the issued and outstanding common stock of CAE, at
the Effective Time after giving effect to the Merger.
(ii) Conversion of Merger Sub Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of Ostar, CAE,
the Merger Sub, or the holders of any of their respective securities, each
share of capital stock of Merger Sub outstanding immediately prior to the
Effective Time shall be converted into one share of the common stock of the
Surviving Entity and the shares of common stock of the Surviving Entity so
issued in such conversion shall constitute the only outstanding shares of
capital stock of the Surviving Entity and the Surviving Entity shall be a
wholly owned subsidiary of CAE.
(c) Exemption from Registration. The Parties intend that the
issuance of the Merger Shares to the Ostar Stockholders shall be exempt
from the registration requirements of the Securities Act pursuant to
Section 4(2) of the Securities Act and the rules and regulations
promulgated thereunder.
SECTION 1.02 CLOSING.
The closing of the Merger (the "Closing") will take place at the
offices of American Union Securities within one (1) business day following
the satisfaction or waiver of the conditions precedent set forth in Article
V or at such other date as CAE and Ostar shall agree (the "Closing Date"),
but in any event no later than March 31, 2006 unless extended by a written
agreement of CAE and Ostar.
SECTION 1.03 MERGER; EFFECTIVE TIME.
At the Effective Time and subject to and upon the terms and
conditions of this Agreement, Merger Sub shall, and CAE shall cause Merger
Sub to, merge with and into Ostar in accordance with the provisions of the
DGCL, the separate corporate existence of Merger Sub shall cease and Ostar
shall continue as the Surviving Entity. The Effective Time shall occur
upon the filing with the Secretary of State of the State of Delaware of a
Certificate of Merger (the "Certificate of Merger") executed in accordance
with the applicable provisions of the DGCL (the "Effective Time"). The
date on which the Effective Time occurs is referred to as the "Effective
Date." Provided that this Agreement has not been terminated pursuant to
Article VI, the Parties will cause the Certificate of Merger to be filed as
soon as practicable after the Closing.
SECTION 1.04 EFFECT OF THE MERGER.
The Merger shall have the effect set forth in Title 8, Section 259 of
the DGCL. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the properties, rights, privileges,
powers and franchises of Ostar and Merger Sub shall vest in the Surviving
Entity, and all debts, liabilities and duties of Ostar and Merger Sub shall
become the debts, liabilities and duties of the Surviving Entity.
SECTION 1.05 CERTIFICATE OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS.
Pursuant to the Merger:
(a) The Certificate of Incorporation and Bylaws of Ostar as in
effect immediately prior to the Effective Time shall be the Certificate of
Incorporation and Bylaws of the Surviving Entity immediately following the
Merger.
(b) The directors and officers of the Ostar immediately prior to
the Merger shall be the directors and officers of the Surviving Entity
subsequent to the Merger.
SECTION 1.06 RESTRICTIONS ON RESALE
(a) The Merger Shares. The Merger Shares will not be registered
under the Securities Act, or the securities laws of any state, and cannot
be transferred, hypothecated, sold or otherwise disposed of until: (i) a
registration statement with respect to such securities is declared
effective under the Securities Act, or (ii) CAE receives an opinion of
counsel for the stockholders, reasonably satisfactory to counsel for CAE,
that an exemption from the registration requirements of the Securities Act
is available.
The certificates representing the Merger Shares which are being
issued to the Ostar Stockholders shall contain a legend substantially as
follows:
"THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR
CENTRAL AMERICAN EQUITIES CORP RECEIVES AN OPINION OF COUNSEL
FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR CENTRAL
AMERICAN EQUITIES CORP. THAT AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT IS AVAILABLE."
SECTION 1.07 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE OF CERTIFICATES. After the Effective Time and
pursuant to a customary letter of transmittal or other instructional form
provided by the Exchange Agent to the Ostar Stockholders, the Ostar
Stockholders shall be required to surrender all their Ostar Shares to the
Exchange Agent, and the Ostar Stockholders shall be entitled upon such
surrender to receive in exchange therefor certificates representing the
proportionate number of Merger Shares into which the Ostar Shares
theretofore represented by the stock transfer forms so surrendered shall
have been exchanged pursuant to this Agreement. Until so surrendered, each
outstanding certificate which, prior to the Effective Time, represented
Ostar Shares shall be deemed for all corporate purposes, subject to the
further provisions of this Article I, to evidence the ownership of the
number of whole Merger Shares for which such Ostar Shares have been so
exchanged. No dividend payable to holders of Merger Shares of record as of
any date subsequent to the Effective Time shall be paid to the owner of any
certificate which, prior to the Effective Time, represented Ostar Shares,
until such certificate or certificates representing all the relevant Ostar
Shares, together with a stock transfer form, are surrendered as provided in
this Article I or pursuant to letters of transmittal or other instructions
with respect to lost certificates provided by the Exchange Agent.
(b) FULL SATISFACTION OF RIGHTS. All Merger Shares for which the
Ostar Shares shall have been exchanged pursuant to this Article I shall be
deemed to have been issued in full satisfaction of all rights pertaining to
the Ostar Shares.
(c) EXCHANGE OF CERTIFICATES. All certificates representing Ostar
Shares converted into the right to receive Merger Shares pursuant to this
Article I shall be furnished to CAE subsequent to delivery thereof to the
Exchange Agent pursuant to this Agreement.
(d) CLOSING OF TRANSFER BOOKS. On the Effective Date, the stock
transfer book of Ostar shall be deemed to be closed and no transfer of
Ostar Shares shall thereafter be recorded thereon.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CAE
AND THE CAE SHAREHOLDERS
CAE and the CAE Shareholders, and, where applicable, the Merger Sub,
hereby jointly and severally represent and warrant to Ostar, as of the date
of this Agreement and as of the Effective Time, as follows:
SECTION 2.01 ORGANIZATION, STANDING AND POWER.
CAE is a company duly incorporated, validly existing and in good
standing under the laws of the State of Florida and has corporate power and
authority to conduct its business as presently conducted by it and to enter
into and perform this Agreement and to carry out the transactions
contemplated by this Agreement. Merger Sub is a company duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and has corporate power and authority to enter into and perform
this Agreement and to carry out the transactions contemplated by this
Agreement. Merger Sub is a recently formed corporation and prior to the
date hereof and through the Effective Date, Merger Sub shall not conduct
any operating business, become a party to any agreements, or incur any
liabilities or obligations.
SECTION 2.02 CAPITALIZATION.
(a) There are 101,000,000 shares of capital stock of CAE
authorized, consisting of 100,000,000 shares of common stock, $0.001 par
value per share (the "CAE Common Shares") and 1,000,000 shares of preferred
stock, $0.001 per share ("CAE Preferred Shares"). As of the date of this
Agreement, there are 2,141,553 CAE Common Shares and 10,000 CAE Preferred
Shares issued and outstanding.
(b) The Shareholders, collectively, own of record and beneficially
551,415 CAE Common Shares. No CAE Common Shares or CAE Preferred Shares
have been reserved for issuance to any Person, and there are no other
outstanding rights, warrants, options or agreements for the purchase of CAE
Common or Preferred Shares except as provided in this Agreement.
(c) All outstanding CAE Common Shares are validly issued, fully
paid, non-assessable, not subject to pre-emptive rights and have been
issued in compliance with all state and federal securities laws or other
Applicable Law. The Merger Shares issuable to the Ostar Stockholders will,
when issued pursuant to this Agreement, be duly and validly authorized and
issued, fully paid and non-assessable.
SECTION 2.03 AUTHORITY FOR AGREEMENT.
The execution, delivery, and performance of this Agreement by each of
CAE and Merger Sub has been duly authorized by all necessary corporate and
shareholder action, and this Agreement, upon its execution by the Parties,
will constitute the valid and binding obligation of each of CAE and Merger
Sub enforceable against each of them in accordance with and subject to its
terms, except as enforceability may be affected by bankruptcy, insolvency
or other laws of general application affecting the enforcement of
creditors' rights. The execution and consummation of the transactions
contemplated by this Agreement and compliance with its provisions by CAE
and Merger Sub will not violate any provision of Applicable Law and will
not conflict with or result in any breach of any of the terms, conditions,
or provisions of, or constitute a default under, CAE's Certificate of
Incorporation, Merger Sub's Certificate of Incorporation, or either of
their Bylaws, in each case as amended, or, in any material respect, any
indenture, lease, loan agreement or other agreement or instrument to which
CAE is a party or by which it or any of its properties are bound, or any
decree, judgment, order, statute, rule or regulation applicable to CAE or
Merger Sub.
SECTION 2.04 ABSENCE OF CERTAIN CHANGES OR EVENTS.
Since September 30, 2005, except as reported in a Current Report on
Form 8-K filed with the SEC:
(a) there has not been any Material Adverse Change in the business,
operations, properties, assets, or condition of CAE;
(b) CAE has not (i) 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 outstanding capital stock; (ii) made any material change in
its method of management, operation, or accounting; (iii) entered into any
material transaction; or (iv) made any accrual or arrangement for payment
of bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee;
(c) CAE has not (i) 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; (ii) paid any material obligation or liability (absolute or
contingent) other than current liabilities reflected in or shown on the
most recent CAE balance sheet, and current liabilities incurred since that
date in the ordinary course of business; (iii) sold or transferred, or
agreed to sell or transfer, any material assets, properties, or rights, or
canceled, or agreed to cancel, any material debts or claims; or (iv) made
or permitted any material amendment or termination of any contract,
agreement, or license to which it is a party;
SECTION 2.05 GOVERNMENTAL AND THIRD PARTY CONSENTS
No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission or any third
party, including a party to any agreement with CAE or Merger Sub, is
required by or with respect to CAE or Merger Sub in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for such consents, waivers,
approvals, orders, authorizations, registrations, declarations and filings
as may be required under (i) applicable securities laws, or (ii) the DGCL.
SECTION 2.06 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against, or to the Knowledge of CAE or the Shareholders, threatened against
or affecting, CAE or any of its assets or properties before any court or
arbitrator or any governmental body, agency or official.
SECTION 2.07 INTERESTED PARTY TRANSACTIONS
CAE is not indebted to any officer or director of CAE, and no such
person is indebted to CAE.
SECTION 2.08 COMPLIANCE WITH APPLICABLE LAWS.
To the Knowledge of CAE and the Shareholders, the business of each of
CAE and Merger Sub has not been, and is not being, conducted in violation
of any Applicable Law.
SECTION 2.09 TAX RETURNS AND PAYMENT
CAE has duly and timely filed all material Tax Returns required to be
filed by it and has duly and timely paid all Taxes shown thereon to be due.
Except as disclosed in the CAE Financial Statements, there is no material
claim for Taxes that is a Lien against the property of CAE other than Liens
for Taxes not yet due and payable, none of which is material. CAE has not
received written notification of any audit of any Tax Return of CAE being
conducted or pending by a Tax authority where an adverse determination
could have a Material Adverse Effect on CAE, no extension or waiver of the
statute of limitations on the assessment of any Taxes has been granted by
CAE which is currently in effect, and CAE is not a party to any agreement,
contract or arrangement with any Tax authority or otherwise, which may
result in the payment of any material amount in excess of the amount
reflected on the CAE Financial Statements.
SECTION 2.10 CAE PUBLIC FILINGS
CAE is a fully compliant reporting company under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and all CAE public
filings required under the Exchange Act have been made. All public filings
by CAE under the Exchange Act are true, correct and complete in all
material respects, are not misleading and do not omit to state any material
fact which is necessary to make the statements contained in such public
filings not misleading in any material respect. To the Knowledge of CAE
and the Shareholders, CAE has not been threatened or is not subject to
removal of its common stock from the OTC Bulletin Board.
SECTION 2.11 FINDERS' FEES
CAE has not incurred, nor will it incur, directly or indirectly, any
liability for brokers' or finders' fees or agents' commissions or
investment bankers' fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OSTAR
Ostar hereby represents and warrants to CAE, Merger Sub and the
Shareholders, as of the date of this Agreement and as of the Effective Time
(except as otherwise indicated), as follows:
SECTION 3.01 ORGANIZATION, STANDING AND POWER.
Ostar is a privately held corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and
has full corporate power and authority to conduct its business as presently
conducted by it and to enter into and perform this Agreement and to carry
out the transactions contemplated by this Agreement. Ostar is duly
qualified to do business as a foreign corporation in each state in which
the nature of the business conducted by it or the character or location of
the properties and assets owned or leased by it make such qualification
necessary. Ostar does not have any ownership interest in any Person other
than Hebei Aoxing Group Pharmaceutical Co., Ltd.
SECTION 3.02 CAPITALIZATION.
There are 200,000,000 shares of Ostar capital stock authorized,
consisting of 200,000,000 shares of common stock with $.00001 par value
(the "Ostar Common Shares"). As of the date of this Agreement, there were
38,211,656 issued and outstanding Ostar Common Shares. No Ostar Common
Shares have been reserved for issuance to any Person, and there are no
outstanding rights, warrants, options or agreements for the purchase of
Ostar Common Shares. No Person is entitled to any rights with respect to
the conversion, exchange or delivery of the Ostar Common Shares. The Ostar
Common Shares have been issued in compliance with Applicable Law.
SECTION 3.03 AUTHORITY FOR AGREEMENT.
The execution, delivery and performance of this Agreement by Ostar
has been duly authorized by all necessary corporate action, and this
Agreement constitutes the valid and binding obligation of Ostar,
enforceable against it in accordance with its terms, except as
enforceability may be affected by bankruptcy, insolvency or other laws of
general application affecting the enforcement of creditors' rights. The
execution and consummation of the transactions contemplated by this
Agreement and compliance with its provisions by Ostar will not violate any
provision of Applicable Law and will not conflict with or result in any
breach of any of the terms, conditions, or provisions of, or constitute a
default under, Ostar's Certificate of Incorporation or Bylaws, in each case
as amended, or, to the Knowledge of Ostar, in any material respect, any
indenture, lease, loan agreement or other agreement instrument to which
Ostar is a party or by which it or any of its properties are bound, or any
decree, judgment, order, statute, rule or regulation applicable to Ostar.
SECTION 3.04 GOVERNMENTAL OR THIRD PARTY CONSENT
No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission or any third
party, including a party to any agreement with Ostar, is required by or
with respect to Ostar in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby,
except for such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under (i)
applicable securities laws, or (ii) the DGCL.
SECTION 3.05 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against or, to the Knowledge of Ostar, threatened, against or affecting
Ostar or any of its material assets or properties before any court or
arbitrator or any governmental body, agency or official.
SECTION 3.06 COMPLIANCE WITH APPLICABLE LAWS.
To the Knowledge of Ostar, the business of Ostar has not been, and is
not being, conducted in violation of any Applicable Law, except for
possible violations which individually or in the aggregate have not had and
are not reasonably likely to have a Material Adverse Effect on Ostar.
SECTION 3.07 TAX RETURNS AND PAYMENT
Ostar has duly and timely filed all material Tax Returns required to
be filed by it and has duly and timely paid all Taxes shown thereon to be
due, except as reflected in the Ostar Financial Statements and except for
Taxes being contested in good faith. Subject to the foregoing, to the
Knowledge of Ostar, except as disclosed in the Ostar Financial Statements,
there is no material claim for Taxes that is a Lien against the property of
Ostar other than Liens for Taxes not yet due and payable, none of which is
material. Ostar has not received written notification of any audit of any
Tax Return of Ostar being conducted or pending by a Tax authority where an
adverse determination could have a Material Adverse Effect on Ostar, no
extension or waiver of the statute of limitations on the assessment of any
Taxes has been granted by Ostar which is currently in effect, and Ostar is
not a party to any agreement, contract or arrangement with any Tax
authority or otherwise, which may result in the payment of any material
amount in excess of the amount reflected on the Ostar Financial Statements.
SECTION 3.08 FINDERS' FEES
Ostar has not incurred, nor will it incur, directly or indirectly,
any liability for brokers' or finders' fees or agents' commissions or
investment bankers' fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS
SECTION 4.01 COVENANTS OF OSTAR
Ostar covenants and agrees that, during the period from the date of
this Agreement until the Closing Date, Ostar shall, except as otherwise
disclosed in this Agreement and other than as contemplated by this
Agreement or for the purposes of effecting the Merger and Closing pursuant
to this Agreement, conduct its business as presently operated and solely in
the ordinary course, and consistent with such operation, and, in connection
therewith, without the written consent of CAE:
(a) shall not amend its Certificate of Incorporation or Bylaws;
(b) shall not pay or agree to pay to any employee, officer or
director compensation that is in excess of the current
compensation level of such employee, officer or director other
than salary increases or payments made in the ordinary course of
business or as otherwise provided in any contracts or agreements
with any such employees;
(c) shall not merge or consolidate with any other entity or acquire
or agree to acquire any other entity;
(d) shall not sell, transfer, or otherwise dispose of any material
assets required for the operations of Ostar's business, except in
the ordinary course of business consistent with past practices;
(e) shall not declare or pay any dividends on or make any distribution
of any kind with respect to the Ostar Shares; and
(f) shall use commercially reasonable efforts to comply with and not
be in default or violation under any known law, regulation, decree
or order applicable to Ostar's business, operations or assets where
such violation would have a Material Adverse Effect on Ostar.
SECTION 4.02 COVENANTS OF CAE AND THE CAE SHAREHOLDERS
Each of CAE and the CAE Shareholders covenants and agrees that,
during the period from the date of this Agreement until the Closing Date,
CAE shall, other than as contemplated by this Agreement or for the purposes
of effecting the Merger and Closing pursuant to this Agreement, conduct its
business as presently operated and solely in the ordinary course, and
consistent with such operation, and, in connection therewith, without the
written consent of Ostar:
(a) shall not amend its Certificate of Incorporation or Bylaws,
except to create the Series C Convertible Preferred Shares, as
provided in Section 5.03;
(b) shall not pay or agree to pay to any employee, officer or
director compensation of any kind or amount;
(c) shall not merge or consolidate with any other entity or acquire
or agree to acquire any other entity;
(d) shall not create, incur, assume, or guarantee any material
indebtedness for money borrowed except in the ordinary
course of business, or create or suffer to exist any mortgage,
lien or other encumbrance on any of its material assets;
(e) shall not make any material capital expenditure or series of
capital expenditures except in the ordinary course of business;
(f) shall not declare or pay any dividends on or make any distribution
of any kind with respect to CAE;
(g) shall not issue any additional shares of CAE capital stock or
take any action affecting the capitalization of CAE or the CAE
Shares; and
(h) shall not grant any severance or termination pay to any director,
officer or any other employees of CAE.
SECTION 4.03 COVENANTS OF THE PARTIES
(a) Tax-free Reorganization. The Parties intend that the Merger
qualify as a Tax-free "reorganization" under Sections 368(a) of the Code,
as amended, and the Parties will take the position for all purposes that
the Merger shall qualify as a reorganization under such Section. In
addition, the Parties covenant and agree that they will not engage in any
action, or fail to take any action, which action or failure to take action
would reasonably be expected to cause the Merger to fail to qualify as a
Tax-free "reorganization" under Section 368(a) of the Code, whether or not
otherwise permitted by the provisions of this Agreement;
(b) Announcement. Neither Ostar, on the one hand, nor CAE on the
other hand, shall issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other Party (which consent shall
not be unreasonably withheld), except as may be required by applicable law
or securities regulation. Upon execution of this Agreement, CAE shall
issue a press release, which shall be approved by Ostar, and file a Current
Report on Form 8-K reporting the execution of the Agreement.
(c) Notification of Certain Matters. Ostar shall give prompt
written notice to CAE, and CAE shall give prompt written notice to Ostar,
of:
(i) The occurrence or nonoccurrence of any event the
occurrence or nonoccurrence of which would be reasonably likely to cause
any representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the Effective Time; and
(ii) Any material failure of Ostar on the one hand, or CAE
or the Shareholders, on the other hand, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder.
(d) Reasonable Best Efforts. Before Closing, upon the terms and
subject to the conditions of this Agreement, the Parties agree to use their
respective reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable (subject to applicable laws) to consummate and make effective the
Merger and other transactions contemplated by this Agreement as promptly as
practicable including, but not limited to:
(i) The preparation and filing of all forms, registrations
and notices required to be filed to consummate the Merger, including
without limitation, any approvals, consents, orders, exemptions or waivers
by any third party or governmental entity; and
(ii) The satisfaction of the Party's conditions precedent to
Closing.
(e) Access to Information
(i) Inspection by Ostar. CAE will make available for
inspection by Ostar, during normal business hours and in a manner so as not
to interfere with normal business operations, all of CAE's records
(including tax records), books of account, premises, contracts and all
other documents in CAE's possession or control that are reasonably
requested by Ostar to inspect and examine the business and affairs of CAE.
CAE will cause its managerial employees and regular independent accountants
to be available upon reasonable advance notice to answer questions of Ostar
concerning the business and affairs of CAE. Ostar will treat and hold as
confidential any information it receives from CAE in the course of the
reviews contemplated by this Section 4.03(e). No examination by Ostar
will, however, constitute a waiver or relinquishment by Ostar of its rights
to rely on CAE's or the CAE Shareholders' covenants, representations and
warranties made herein or pursuant hereto.
(ii) Inspection by CAE. Ostar will, if requested, make
available for inspection by CAE, during normal business hours and in a
manner so as not to interfere with normal business operations, all of
Ostar's records (including tax records), books of account, premises,
contracts and all other documents in Ostar's possession or control that are
reasonably requested by CAE to inspect and examine the business and affairs
of Ostar. Ostar will cause its managerial employees and regular
independent accountants to be available upon reasonable advance notice to
answer questions of CAE concerning the business and affairs of Ostar. CAE
will treat and hold as confidential any information they receive from Ostar
in the course of the reviews contemplated by this Section 4.03(e). No
examination by CAE will, however, constitute a waiver or relinquishment by
CAE of its rights to rely on Ostar's covenants, representations and
warranties made herein or pursuant hereto.
(f) Approval by CAE Shareholders. By his execution and delivery
of this Agreement, each of the Shareholders does hereby approve, adopt and
ratify this Merger Agreement, the Merger and all of the transactions
contemplated hereby and pursuant to all exhibits hereto.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS.
The obligations of the Parties as provided herein shall be subject to
each of the following conditions precedent, unless waived in writing by
both CAE and Ostar:
(a) Consents, Approvals. The Parties shall have obtained all
necessary consents and approvals of their respective boards of directors,
and all consents, approvals and authorizations required under their
respective charter documents, and all material consents, including any
material consents and waivers by the Parties' respective lenders and other
third-parties, if necessary, to the consummation of the transactions
contemplated by this Agreement.
(b) Shareholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved by the shareholders of Ostar
in accordance with the applicable provisions of the DGCL and its bylaws.
(c) Absence of Certain Litigation. No action or proceeding shall
be threatened or pending before any governmental entity or authority which,
in the reasonable opinion of counsel for the Parties, is likely to result
in a restraint, prohibition or the obtaining of damages or other relief in
connection with this Agreement or the consummation of the Merger.
(d) Option Agreement. Warner Technology and Investment Corp.,
a shareholder of Ostar ("Warner") and the Shareholders shall have entered
into the Put and Call Option Agreement ("Option Agreement") in the form
attached hereto as Exhibit A.
(e) Subsidiary Option Agreement. CAE shall have entered into an
agreement with the Shareholders regarding the ownership and operations of
CAE's subsidiaries (the "Subsidiary Option Agreement") in the form attached
hereto as Exhibit B.
SECTION 5.02 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF CAE AND THE
CAE SHAREHOLDERS
The obligations of CAE and the CAE Shareholders on the Closing Date
as provided herein shall be subject to the satisfaction, on or prior to the
Closing Date, of the following conditions precedent, unless waived in
writing by CAE or the CAE Shareholders:
(a) Consents And Approvals. Ostar shall have obtained all material
consents, including any material consents and waivers by Ostar's lenders
and other third-parties, if necessary, to the consummation of the
transactions contemplated by this Agreement.
(b) Representations and Warranties. The representations and
warranties by Ostar in Article III herein shall be true and accurate in all
material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made at and
as of the Closing Date, except to the extent that any changes therein are
specifically contemplated by this Agreement.
(c) Performance. Ostar shall have performed and complied in all
material respects with all agreements to be performed or complied with by
it pursuant to this Agreement at or prior to the Closing.
(d) Proceedings and Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to CAE and its
counsel, and CAE and its counsel shall have received all such counterpart
originals (or certified or other copies) of such documents as they may
reasonably request.
(e) Certificate of Good Standing. Ostar shall have delivered to
CAE a certificate as to the good standing of Ostar certified by the
Secretary of State of the State of Delaware on or within fourteen (14)
business days prior to the Closing Date.
(f) Material Changes. Except as contemplated by this Agreement,
since the date hereof, Ostar shall not have suffered a Material Adverse
Effect, and, without limiting the generality of the foregoing, there shall
be no pending litigation to which Ostar is a party which is reasonably
likely to have a Material Adverse Effect on Ostar.
(g) Due Diligence. CAE shall have completed to its own
satisfaction due diligence in relation to Ostar, except that this shall
cease to be a condition precedent unless on or prior to Xxxxx 00, 0000 XXX
shall have delivered a written notice stating that it is not satisfied with
the results of its due diligence;
(h) SEC Filing. No less than one week prior to the Closing, Ostar
shall have delivered to CAE the financial statements, report of Ostar's
independent register public accountant, and other information required for
inclusion in the Current Report that CAE will file with the Securities and
Exchange Commission within four business days after the Closing;
SECTION 5.03 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF OSTAR
The obligations of Ostar on the Closing Date as provided herein shall
be subject to the satisfaction, on or prior to the Closing Date, of the
following conditions precedent, unless waived in writing by Ostar:
(a) Consents And Approvals. CAE and Merger Sub shall have obtained
all material consents, including any material consents and waivers of
lenders to whom CAE is directly liable, and other third parties, if
necessary, to the consummation of the transactions contemplated by this
Agreement.
(b) Representations And Warranties. The representations and
warranties by CAE, the CAE Shareholders and Merger Sub in Article II herein
shall be true and accurate in all material respects on and as of the
Closing Date with the same force and effect as though such representations
and warranties had been made at and as of the Closing Date, except to the
extent that any changes therein are specifically contemplated by this
Agreement.
(c) Performance. CAE, the CAE Shareholders and Merger Sub shall
have performed and complied in all material respects with all agreements to
be performed or complied with by it pursuant to this Agreement prior to or
at the Closing.
(d) Proceedings And Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to Ostar and its
counsel, and Ostar and its counsel shall have received all such counterpart
originals (or certified or other copies) of such documents as they may
reasonably request.
(e) Certificates of Good Standing. CAE shall have delivered to
Ostar a certificate as to its good standing in the State of Florida and the
Merger Sub shall have delivered to Ostar a certificate as to its good
standing in the State of Delaware, in each case certified by the Secretary
of State not more than fourteen (14) business days prior to the Closing
Date.
(f) Material Changes. Except as contemplated by this Agreement,
since the date hereof, CAE and Merger Sub shall not have suffered a
Material Adverse Effect and, without limiting the generality of the
foregoing, there shall be no pending litigation to which CAE or the Merger
Sub is a party which is reasonably likely to have a Material Adverse Effect
on CAE or the Merger Sub;
(g) Due Diligence. Ostar shall have completed to its own
satisfaction due diligence in relation to CAE, except that this shall cease
to be a condition precedent unless on or prior to March 24, 2006 Ostar
shall have delivered a written notice stating that it is not satisfied with
the results of its due diligence;
(h) Status of CAE. As at the Effective Time of the Merger, CAE (i)
shall be a fully compliant reporting public company under the Exchange Act,
and shall be current in all of its reports required to be filed under the
Exchange Act, (ii) shall not have been threatened or subject to delisting
from the OTC Bulletin Board, and (iii) shall have 2,141,553 CAE Common
Shares outstanding, and there shall be no preferred stock outstanding nor
any options, warrants or rights to acquire capital stock of CAE whether for
additional consideration or on conversion.
(i) Shareholders' Holdings. On the date of Closing, the
Shareholders shall own at least 551,415 CAE Common Shares.
(j) Certificate of Designation. The Board of Directors of CAE
shall have filed in the Office of the Secretary of State of the State of
Florida a Certification of Designation of the Series C Convertible
Preferred Stock in the form of Exhibit C hereto.
(k) CAE Board of Directors. At the Effective Time of the Merger
or in accordance with applicable law, all of the officers and members of the
board of directors of CAE shall tender their resignations as officers and
directors of CAE, and the vacancies created on the CAE board of directors
shall be filled by persons designated by the Board of Directors of Ostar.
(l) Information Statement. No less than ten days prior to the
Closing, CAE shall have filed with the SEC and mailed to its shareholders
of record an information statement containing the information required by
SEC Rule 14f-1, which shall be provided by Ostar.
ARTICLE VI
TERMINATION
SECTION 6.01 TERMINATION.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time by:
(a) The mutual written consent of the Boards of Directors of CAE
and Ostar;
(b) Either CAE, on the one hand, or Ostar, on the other hand, if
any governmental entity or court of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the Parties shall use their commercially
reasonable best efforts to lift), which restrains, enjoins or otherwise
prohibits the Merger or the issuance of the Merger Shares pursuant to the
Merger and such order, decree, ruling or other action shall have become
final and non-appealable;
(c) CAE, if Ostar shall have breached in any material respect any
of its representations, warranties, covenants or other agreements contained
in this Agreement, and the breach cannot be or has not been cured within
thirty (30) calendar days after the giving of written notice by CAE to
Ostar, or by CAE, if it is not satisfied with the results of its due
diligence investigation and it so notifies Ostar on or before March 24,
2006;
(d) Ostar, if CAE shall have breached in any material respect any
of its representations, warranties, covenants or other agreements contained
in this Agreement, and the breach cannot be or has not been cured within
thirty (30) calendar days after the giving of written notice by Ostar to
CAE, or by Ostar if it is not satisfied with the results of its due
diligence investigation and it so notifies CAE on or before March 24,
2006; or
(e) Without any action on the part of the Parties if required by
Applicable Law or if the Merger shall not be consummated by March 31, 2006
unless extended by written agreement of CAE and Ostar.
SECTION 6.02 EFFECT OF TERMINATION.
If this Agreement is terminated as provided in Section 6.01, written
notice of such termination shall be given by the terminating Party to the
other Party specifying the provision of this Agreement pursuant to which
such termination is made, this Agreement shall become null and void and
there shall be no liability on the part of CAE or Ostar, provided, however,
that (a) the provisions of Article VII hereof shall survive the
termination of this Agreement; (b) nothing in this Agreement shall relieve
any Party from any liability or obligation with respect to any willful
breach of this Agreement; and (c) termination shall not affect accrued
rights or liabilities of any party at the time of such termination.
ARTICLE VII
CONFIDENTIALITY
SECTION 7.01 CONFIDENTIALITY
CAE, on the one hand, and Ostar, on the other hand, will keep
confidential all information and documents obtained from the other,
including but not limited to any information or documents provided pursuant
to Section 4.03(e) hereof, which are designated by such Party as
confidential (except for any information disclosed to the public pursuant
to a press release authorized by the Parties); and in the event the Closing
does not occur or this Agreement is terminated for any reason, will
promptly return such documents and all copies of such documents and all
notes and other evidence thereof, including material stored on a computer,
and will not use such information for its own advantage, except to the
extent that (i) the information must be disclosed by law, (ii) the
information becomes publicly available by reason other than disclosure by
the Party subject to the confidentiality obligation, (iii) the information
is independently developed without use of or reference to the other Party's
confidential information, (iv) the information is obtained from another
source not obligated to keep such information confidential, (v) the
information is already publicly known or known to the receiving Party when
disclosed as demonstrated by written documentation in the possession of
such Party at such time, or (vi) in connection with any arbitration
proceeding hereunder pursuant to Section 9.03(b).
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 INDEMNIFICATION BY CAE
CAE and the CAE Shareholders shall, jointly and severally, indemnify,
defend and hold harmless each of Ostar, any subsidiary or affiliate thereof
and each person who is now, or has been at any time prior to the date
hereof or who becomes prior to the Closing, a shareholder, officer,
director or partner of Ostar, any subsidiary or affiliate thereof or an
employee of Ostar, any subsidiary or affiliate thereof and their respective
heirs, legal representatives, successors and assigns (the "Ostar
Indemnified Parties") against all losses, claims, damages, costs, expenses
(including reasonable attorneys' fees), liabilities or judgments or amounts
that are paid in settlement of or in connection with any threatened or
actual third party claim, action, suit, proceeding or investigation based
in whole or in part on or arising in whole or in part out of (i) any
material breach of this Agreement by the Shareholders, CAE or any
subsidiary or affiliate thereof, including but not limited to failure of
any representation or warranty to be true and correct at or before the
Closing, (ii) any willful or grossly negligent act, omission or conduct of
any officer, director or agent of CAE or any subsidiary or affiliate
thereof prior to the Closing, whether asserted or claimed prior to, at or
after, the Closing, or (iii) the consummation of the transactions
contemplated herein, and any action taken in connection therewith ("Ostar
Indemnified Liabilities"). Any Ostar Indemnified Party wishing to claim
indemnification under this Section 8.01, upon learning of any such claim,
action, suit, proceeding or investigation, shall notify CAE in writing, but
the failure to so notify shall not relieve CAE from any liability that it
may have under this Section 8.01, except to the extent that such failure
would materially prejudice CAE.
SECTION 8.02 INDEMNIFICATION BY OSTAR
Ostar shall indemnify, defend and hold harmless each of CAE, any
subsidiary or affiliate thereof and each person who is now, or has been at
any time prior to the date hereof or who becomes prior to the Closing, a
shareholder, officer, director or partner of CAE, any subsidiary or
affiliate thereof or an employee of CAE, any subsidiary or affiliate
thereof and their respective heirs, legal representatives, successors and
assigns (the "CAE Indemnified Parties") against all losses, claims,
damages, costs, expenses (including reasonable attorneys' fees),
liabilities or judgments or amounts that are paid in settlement of or in
connection with any threatened or actual third party claim, action, suit,
proceeding or investigation based in whole or in part on or arising in
whole or in part out of (i) any material breach of this Agreement by Ostar
or any subsidiary or affiliate thereof, including but not limited to
failure of any representation or warranty to be true and correct at or
before the Closing, (ii) any willful or negligent act, omission or conduct
of any officer, director or agent of Ostar or any subsidiary or affiliate
thereof prior to the Closing, whether asserted or claimed prior to, at or
after, the Closing, or (iii) the consummation of the transactions
contemplated herein, and any action taken in connection therewith ("CAE
Indemnified Liabilities"). Any CAE Indemnified Party wishing to claim
indemnification under this Section 8.02, upon learning of any such claim,
action, suit, proceeding or investigation, shall notify Ostar in writing,
but the failure to so notify shall not relieve Ostar from any liability
that it may have under this Section 8.02, except to the extent that such
failure would materially prejudice Ostar.
SECTION 8.03 INDEMNIFICATION OF EXCHANGE AGENT
(a) CAE, Ostar and Merger Sub (for the purposes of this Section
8.03, the "Indemnitors") agree to indemnify the Exchange Agent and its
partners, officers, directors, employees and agents (collectively, the
"Indemnitees") against, and hold them harmless of and from, any and all
loss, liability, cost, damage and expense, including without limitation,
reasonable counsel fees, which the Indemnitees may suffer or incur by
reason of any action, claim or proceeding brought against the Indemnitees
arising out of or relating in any way to the Exchange Agent's service in
such capacity, unless such action, claim or proceeding is the result of the
willful misconduct or gross negligence of the Indemnitees.
(b) If the indemnification provided for in Section 8.03(a) is
applicable, but for any reason is held to be unavailable, the Indemnitors
shall jointly and severally contribute such amounts as are just and
equitable to pay, or to reimburse the Indemnitees for, the aggregate of any
and all losses, liabilities, costs, damages and expenses, including counsel
fees, actually incurred by the Indemnitees as a result of or in connection
with, and any amount paid in settlement of, any action, claim or proceeding
arising out of or relating in any way to any actions or omissions of the
Indemnitors.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 EXPENSES.
Except as contemplated by this Agreement, all costs and expenses
incurred in connection with this Agreement and the consummation of the
transactions contemplated by this Agreement shall be paid by the Party
incurring such expenses.
SECTION 9.02 APPLICABLE LAW
Except to the extent that the law of the State of Delaware is
mandatorily applicable to the Merger (which shall be governed by the DGCL),
this Agreement shall be governed by the laws of the State of New York,
without giving effect to the principles of conflicts of laws thereof, as
applied to agreements entered into and to be performed in such state.
SECTION 9.03 NOTICES.
All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given or made as follows:
(a) If sent by reputable overnight air courier (such as Federal
Express), 2 business days after being sent;
(b) If sent by facsimile transmission, with a copy mailed on the
same day in the manner provided in clause (a) above, when transmitted and
receipt is confirmed by the fax machine; or
(c) If otherwise actually personally delivered, when delivered.
All notices and other communications under this Agreement shall be
sent or delivered as follows:
If to Ostar, to:
Xxxxxxx Xxxx
c/o American Union Securities, Inc.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx, Esq.
000 0xx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to CAE and/or the Shareholders, to:
Xxxxxxx Xxxxxxxx
President
Interlink 964
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Telephone: 000-000-000-0000
Facsimile: 000-000-000-0000
with a copy to (which shall not constitute notice):
Xxxx Xxxxxxx, Esq.
0000 X.X. 000 Xx.
Xxxxx 000
Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Each Party may change its address by written notice in accordance
with this Section.
SECTION 9.04 ENTIRE AGREEMENT.
This Agreement (including the documents and instruments referred to
in this Agreement) contains the entire understanding of the Parties with
respect to the subject matter contained in this Agreement, and supersedes
and cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the Parties, oral or written, respecting
such subject matter including the Letter of Intent made by Ostar and CAE
dated February 13, 2006.
SECTION 9.05 ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned by any of the Parties
(whether by operation of law or otherwise) without the prior written
consent of the other Parties; provided that in no event may the right to
indemnification provided by Article VIII hereto be assigned by any of the
Parties, with or without consent, except by operation of law. Subject to
the immediately foregoing sentence of this Section 9.05, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the
Parties and their respective successors and assigns.
SECTION 9.06 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which shall be
considered one and the same agreement.
SECTION 9.07 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided by this Agreement, nothing herein is
intended to confer upon any person or entity not a Party to this Agreement
any rights or remedies under or by reason of this Agreement.
SECTION 9.08 RULES OF CONSTRUCTION.
The Parties agree that they have been represented by counsel during
the negotiation 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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
CENTRAL AMERICAN EQUITIES CORP.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
OSTAR ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
CAE SHAREHOLDERS
/s/ Xxxxxxx Xxxxxxxx
--------------------------------
XXXXXXX XXXXXXXX
/s/ P. Xxxxx Xxxxxxxx
--------------------------------
P. XXXXX XXXXXXXX
/s/ Xxxxxxx Xx. Xxxxxx
--------------------------------
XXXXXX XX. TALLEY
OSTAR PHARMACEUTICAL, INC.
By: /s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
Title: President
EXHIBITS:
Exhibit A - Put and Call Option Agreement
Exhibit B - Subsidiary Option Agreement
Exhibit C - Certificate of Designation
