Exhibit No. 10.1
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AGREEMENT AND PLAN OF REORGANIZATION
by, between and among
OCG TECHNOLOGY, INC.
EPIDEMIC INTERVENTION SYSTEMS, INC.
CENTERSTAGING MUSICAL PRODUCTIONS, INC.
and
OTHER SIGNATORIES HERETO
Dated as of March 15, 2005
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated as of
March 15, 2005, is made and entered into by and among OCG TECHNOLOGY, INC., a
Delaware corporation ("OCG"), EPIDEMIC INTERVENTION SYSTEMS, INC., a Delaware
corporation and direct, wholly-owned subsidiary of OCG ("Merger Sub"),
CENTERSTAGING MUSICAL PRODUCTIONS, INC., a California corporation ("CMPI"),
Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxxx and Jan Parent (collectively,
the "CMPI Shareholders"), PrimeCare Systems, Inc., a Delaware corporation and
direct, wholly-owned subsidiary of OCG ("PSI"), and Xxxxxx Xxxxxx, the President
and a stockholder of OCG ("Xxxxxx"), with reference to the following facts:
RECITALS:
WHEREAS, after carrying out the transactions described in Section 1.1, the
respective boards of directors of OCG, Merger Sub and CMPI deem it advisable and
in the best interests of their respective stockholders that Merger Sub merge
with and into CMPI (the "Merger") upon the terms and subject to the conditions
set forth herein; and
WHEREAS the respective boards of directors of OCG, Merger Sub and CMPI
have approved the Merger; and
WHEREAS, as in inducement to the other parties to enter into this
Agreement and to consummate the Merger and the other transactions contemplated
herein, the parties hereto are willing to make certain representations and
warranties as set forth herein; and
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
PRE-CLOSING TRANSACTIONS AND THE MERGER
1.1 Spin-off of PSI
(a) Prior to the Effective Time (as defined in Section 1.5), OCG
shall (i) transfer, assign and contribute to PSI (1) all of OCG's shares
of capital stock of its wholly-owned subsidiaries, Optronics Labs, Inc., a
New York corporation, and Xxxxxx Xxxxxxx Enterprises, Inc., a Florida
corporation, (2) all of OCG's operating assets, if any, but excluding the
Excluded Assets (as hereinafter defined), and (3) all of OCG's Liabilities
(as hereinafter defined), and (ii) declare and pay with respect to the OCG
Common Stock and OCG Series C Stock (each as defined in Section 5.2)
outstanding as of the record date therefor established by OCG (the "Record
Date") a dividend of all of the shares of capital stock of PSI held by OCG
in a spin-off transaction as provided in Section 8.10 (collectively, the
"Spin-off").
(b) "Excluded Assets" for purposes of this Section 1.1 means all
stock books, minute books, tax returns and other books and records of OCG.
(c) "Liabilities" for purposes of this Agreement means any and all
direct or indirect liabilities, indebtedness, obligations, commitments,
claims, deficiencies, expenses, deferred income, guaranties or
endorsements of any type, whether known, unknown, accrued, absolute,
contingent, matured or unmatured.
(d) In connection with the Spin-off, OCG shall use its best efforts
to obtain from all or substantially all of its creditors written
statements, in form and content satisfactory to CMPI, by which such
creditors agree to PSI's assumption of all of OCG's Liabilities to such
creditors pursuant to the Spin-off and to release and hold harmless OCG
and the Surviving Corporation from and against such Liabilities following
the Closing.
1.2 Exchange of Options
Prior to the Effective Time, OCG shall cause PSI to offer, as of the
Record Date, to each holder on such date of options, warrants or other rights to
subscribe for or purchase OCG Common Stock (collectively, the "OCG Stock
Rights"), in exchange therefor, an option, warrant or similar right to subscribe
for or purchase an equivalent number of shares of stock of PSI on substantially
the same terms and conditions as those contained in such corresponding OCG Stock
Rights (the "Exchange Offer"). The Exchange Offer shall occur as of, and shall
be conditioned upon, the Closing (as defined in Section 3.6).
1.3 Authorization of Series F Preferred Stock
OCG has, or before the Closing will have, duly created a series of the
authorized shares of its preferred stock, designated Series F Preferred Stock
(the "OCG Series F Stock") and having the rights, restrictions, privileges and
preferences set forth in the form of Certificate of Designation Creating Series
F Preferred Stock (the "Certificate of Designations") attached as Exhibit A to
this Agreement. OCG also has, or before the Closing will have, duly authorized
the issuance and sale of shares of OCG Series F Stock pursuant to the Merger.
1.4 Advances by CMPI
Prior to the date hereof, CMPI has advanced to OCG the principal sum of
$75,000, including $50,000 evidenced by that certain Promissory Note of OCG,
dated November 24, 2004 (the "Original Promissory Note"). Concurrently with the
execution of this Agreement, CMPI shall advance to OCG an additional $25,000,
and, following the date hereof, CMPI agrees to make further advances to OCG of
up to $75,000 in the aggregate upon request by OCG as follows and in the
following order of priority:
(a) $25,000 upon the later to occur of (i) March 23, 2005 or (ii)
OCG's filing with the Securities and Exchange Commission ("SEC") of a
registration statement on Form SB-2 or other available form relating to
the Spin-off contemplated in Section 1.1, above;
(b) subject to the prior advance in subparagraph (a), above, an
additional $25,000 upon the later to occur of (i) March 30, 2005 or (ii)
OCG furnishing to CMPI the signed statements referred to in Section 1.1(d)
of the holders of not less than 80% of the aggregate Liabilities of OCG
(excluding for this purpose all Liabilities owed to telephone service
providers and public utilities); and
(i) subject to the prior advances pursuant to subparagraph (a)
and (b), above, an additional $25,000 on April 6, 2005.
Concurrently with the execution of this Agreement, OCG shall surrender to
CMPI for cancellation the Original Promissory Note in exchange for a promissory
note of OCG, in the form attached hereto as Exhibit B to this Agreement, which
promissory note shall evidence all of the foregoing sums advanced by CMPI (the
"New Promissory Note").
1.5 Additional Cash Requirements
PSI and Xxxxxx agree, jointly and severally, that they shall pay or
provide to OCG any and all cash in excess of the amounts advanced by CMPI under
Section 1.4, above, as is necessary to enable OCG to meet its obligations under
this Agreement and other working capital and general corporate needs for the
period prior to the Closing. To the extent any such amounts are provided in the
form of an advance or loan to OCG, they shall be forgiven as of the Closing
without any further obligation or Liability on the part of OCG.
1.6 The Merger
Upon the terms and subject to the conditions hereof, at the Effective
Time, Merger Sub shall merge with and into CMPI and the separate corporate
existence of Merger Sub shall thereupon cease, and CMPI shall be the surviving
corporation in the Merger (the "Surviving Corporation"). The Merger shall have
the effects set forth in this Agreement and in Chapter 11 of the California
General Corporation Law (the "CGCL") and Subchapter IX of the Delaware General
Corporation Law (the "DGCL").
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1.7 Effective Time of the Merger
The Merger shall become effective at or following the Closing upon the
filing with the respective Secretaries of State of the States of California and
Delaware of an agreement of merger (the "Agreement of Merger") in accordance
with the requirements of the CGCL and the DGCL (the "Effective Time").
1.8 Tax Treatment
It is intended that the Merger shall qualify as a reorganization under
Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended (the
"Code"), and related sections and Treasury Regulations thereunder.
ARTICLE II
THE SURVIVING CORPORATION
2.1 Certificate of Incorporation
The articles of incorporation of CMPI in effect immediately prior to the
Effective Time shall be the articles of incorporation of the Surviving
Corporation at and after the Effective Time, and thereafter may be amended in
accordance with the terms thereof and the CGCL.
2.2 Bylaws
The bylaws of CMPI in effect immediately prior to the Effective Time shall
be the bylaws of the Surviving Corporation at and after the Effective Time, and
thereafter may be amended in accordance with their terms and as provided by the
articles of incorporation of the Surviving Corporation and the CGCL.
2.3 Directors and Officers
At and after the Effective Time, the directors and officers of the
Surviving Corporation shall be the directors and officers of CMPI immediately
prior to the Effective Time, until their respective successors have been duly
elected or appointed and qualified or until their earlier death, resignation or
removal in accordance with the articles of incorporation and bylaws of the
Surviving Corporation.
ARTICLE III
CONVERSION OF SHARES
3.1 Conversion of Capital Stock
As of the Effective Time, by virtue of the Merger and without any action
on the part of the holders of any capital stock or other securities described
below:
(a) Each share of the common stock, no par value per share, of CMPI
("CMPI Common Stock") issued and outstanding immediately prior to the
Effective Time shall be converted into and exchanged for the right to
receive fully paid and nonassessable shares of OCG Series F Stock as
provided herein. All such CMPI Common Stock, when so converted and
exchanged, shall no longer be outstanding and shall automatically be
canceled and retired, and the holder of a certificate ("CMPI Stock
Certificate") that, immediately prior to the Effective Time, represented
outstanding shares of CMPI Common Stock shall cease to have any rights
with respect thereto, except the right to receive, upon the surrender of
such CMPI Stock Certificate, the shares of OCG Series F Stock (the "Merger
Shares") to which such holder is entitled pursuant to this Section 3.1(a).
Until surrendered as contemplated by this Section 3.1(a) and Section
3.3(a), each CMPI Stock Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender
the Merger Shares as contemplated by this Section 3.1(a). Subject to
Section 3.1(c), below, the number of shares of OCG Series F Stock that
will be issued as a result of the Merger for each share of CMPI Common
Stock will equal the quotient determined by dividing (i) the number of
shares of OCG Series F Stock determined by the formula [(X / .04) x .96)]
/ 10,000, where X equals the sum of (1) the total number of shares of OCG
Common Stock outstanding as of the Effective Time plus (2) the total
number of shares of OCG Common Stock issuable upon conversion, in full, of
all OCG Series C Stock (as defined in Section 5.2) outstanding as of the
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Effective Time plus (3) the total number of shares of OCG Common Stock
issuable upon the exercise, in full, of any and all shares of OCG Stock
Rights outstanding as of the Effective Time by (ii) the total number of
shares of CMPI Common Stock issued and outstanding immediately prior to
the Effective Time. The number of shares of OCG Series F Stock to be so
issued for each share of CMPI Common Stock is referred to herein as the
"Exchange Ratio."
(b) All outstanding convertible promissory notes of CMPI (the "CMPI
Convertible Notes") outstanding immediately prior to the Effective Time
shall be assumed by and become the principal liabilities and obligations
of OCG on the same terms and conditions thereof as existed immediately
prior to the Effective Date, which notes shall be convertible into such
number of shares of OCG Common Stock (as defined in Section 5.2)
determined in accordance with the terms of such notes. The "Retained
Merger Shares" (as defined in Section 3.2(c)) otherwise to be received in
the Merger by the CMPI Shareholders shall be subject to cancellation as
provided in Section 9.1 based upon such future conversion of the CMPI
Convertible Notes.
(c) Notwithstanding the foregoing, if, between the date of this
Agreement and the Effective Time, the outstanding shares of OCG Series F
Stock or other class or series of OCG Capital Stock (as defined in Section
5.2) or CMPI Common Stock shall have been changed into a different number
of shares or a different class, by reason of any stock dividend,
subdivision, reclassification, recapitalization, split, combination or
exchange of shares, the Exchange Ratio shall be correspondingly adjusted
to reflect such stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares; and
(d) Each share of the common stock, $.001 par value per share, of
Merger Sub (the "Merger Sub Common Stock") issued and outstanding
immediately prior to the Effective Time shall automatically be converted
into the same number of shares of common stock of the Surviving
Corporation, and shall, immediately after the Merger, be the only shares
of capital stock of the Surviving Corporation issued and outstanding.
(e) Each share of each class and series of OCG Capital Stock issued
and outstanding immediately prior to the Effective Time shall remain
outstanding and shall not be affected by the Merger.
(f) All OCG Series F Stock issued upon the surrender of the CMPI
Stock Certificates in accordance with the terms hereof shall be deemed to
have been issued in full satisfaction of all rights pertaining to such
CMPI Stock Certificates and the CMPI Common Stock formerly represented
thereby; and from and after the Effective Time there shall be no further
registration of transfers effected on the stock transfer books of the
Surviving Corporation of shares of the CMPI Common Stock which were
outstanding immediately prior to the Effective Time. If, after the
Effective Time, CMPI Stock Certificates are presented to the Surviving
Corporation for any reason, they shall be canceled and exchanged as
provided in this Article III.
(g) The parties agree that, notwithstanding any other provision of this
Agreement, the holders of the shares denominated as "X" in the equation set
forth in Section 3.1(a), above, shall own in the aggregate 4% of total number of
shares of OCG Common Stock outstanding and issuable upon conversion of
outstanding OCG Series C Stock and any outstanding OCG Stock Rights as of the
Effective Time and after giving effect to the conversion, in full, of the CMPI
Convertible Notes following the Closing (but without giving effect to any other
transactions or events subsequent to the Closing).
3.2 Initial Merger Shares
(a) For purposes of this Agreement the following terms shall have the
meanings indicated:
(i) "Maximum CMPI Note Conversion Shares" shall mean the maximum
possible number of shares of OCG Common Stock issuable upon the
conversion, in full, of the CMPI Convertible Notes outstanding as of the
Effective Time;
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(ii) "Actual CMPI Note Conversion Shares" shall mean the
actual cumulative aggregate number of shares of CMPI Common Stock
issued upon the conversion, in full, of the CMPI Convertible Notes;
(iii) "Series F Conversion Shares" shall mean the number of
shares of OCG Common Stock issuable upon the conversion, in full, of
the aggregate Merger Shares issuable in the Merger to the CMPI
Shareholders; and
(iv) "Retention Ratio" shall mean the ratio that the Maximum
CMPI Note Conversion Shares bears to the Series F Conversion Shares.
(b) Notwithstanding any other provisions of this Agreement, the
initial aggregate number of shares of OCG Series F Stock to be issued and
delivered to the CMPI Shareholders at the Closing (the "Initial Merger
Shares") shall be equal to the product of the total Merger Shares to which
they otherwise would be entitled under Section 3.1(a) multiplied by the
Retention Ratio. The Initial Merger Shares shall be issuable and
distributable at the Closing to the CMPI Shareholders pro rata in
accordance with their ownership of CMPI Common Stock.
(c) In addition to the Initial Merger Shares issuable pursuant to
subparagraph (b), above, at the Closing the balance of the Merger Shares
to which the CMPI Shareholders are entitled under Section 3.1(a) (the
"Retained Merger Shares") shall be issued by OCG in the names of the CMPI
Shareholders entitled thereto, and in such denominations to which such
holders are entitled, pursuant to Section 3.1(a), but shall be retained by
OCG in escrow as provided in Article IX. Upon the future conversion or
satisfaction and cancellation, as the case may be, of the CMPI Convertible
Notes, the Retained Merger Shares shall be cancelled by OCG or released to
the CMPI Shareholders, as the case may be, in accordance with Article IX.
3.3 Surrender and Payment
(a) At the Closing, OCG shall issue and deliver to each holder of a
CMPI Stock Certificate that immediately prior to the Effective Time
represented outstanding CMPI Common Stock, the Merger Shares or the
Initial Merger Shares, as the case may be, to which such holder is
entitled, in exchange for the holder's surrender for cancellation of such
CMPI Stock Certificate.
(b) If any shares of OCG Series F Stock are to be issued to a Person
(as hereinafter defined) other than the registered holder of the CMPI
Stock Certificates surrendered in exchange therefor, it shall be a
condition to such issuance that the CMPI Stock Certificates so surrendered
shall be properly endorsed or otherwise be in proper form for transfer and
that the Person requesting such issuance shall pay to OCG any transfer or
other taxes required as a result of such issuance to a Person other than
the registered holder or establish to the satisfaction of the OCG that
such tax has been paid or is not applicable.
(c) For purposes of this Agreement, "Person" means an individual, a
corporation, a limited-liability company, a partnership, an association, a
trust or any other entity or organization, including a governmental or
political subdivision or any agency or instrumentality thereof.
(d) If any CMPI Stock Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person
claiming such CMPI Stock Certificate to be lost, stolen or destroyed, OCG
will issue in exchange for such lost, stolen or destroyed CMPI Stock
Certificate the Merger Shares deliverable in respect thereof pursuant to
this Agreement. OCG, in its discretion, may require as a condition to such
issuance that such Person also agree to indemnify, defend and hold
harmless OCG from and against any Liability to any Person with respect to
such lost, stolen or destroyed CMPI Stock Certificate.
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3.4 OCG Preferred Stock
Prior to the Closing, OCG shall take such actions as are necessary to
retire the classes of OCG Control Stock designated "Series A Preferred Stock"
and "Series B Preferred Stock," respectively, so that neither such class of
shares shall be authorized as of the Closing.
3.5 No Fractional Shares
[Intentionally Omitted.]
3.6 Closing
(a) The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Xxxx & Xxxxx
Professional Corporation, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx, at 10:00 A.M., local time, on the third business day following
the first date as of which all of the conditions set forth in Article X
hereof shall have been satisfied or waived, or at such other date and time
as OCG and CMPI shall otherwise agree in writing (either such date, (the
"Closing Date").
(b) At the Closing, (i) OCG and Merger Sub shall deliver the various
certificates, instruments, and documents referred to in subparagraph (c),
below, (ii) CMPI shall deliver the various certificates, instruments and
documents referred to in subparagraph (d), below, (iii) CMPI and Merger
Sub shall execute and file the Agreement of Merger with the respective
Secretaries of State of the States of California and Delaware, and (v) the
parties hereto shall make any payments and undertake any other actions
provided for in this Section 3.6 in accordance with the terms of this
Agreement.
(c) At the Closing, OCG or Merger Sub, as applicable, shall deliver
the following:
(i) OCG shall issue and deliver the Merger Shares and
issue and retain the Retained Merger Shares as provided in
Sections 3.2(a) and 3.3(a), respectively; and
(ii) OCG and Merger Sub shall furnish CMPI with:
(A) a certificate executed by the Secretary or an Assistant
Secretary of each of OCG and Merger Sub certifying as of the date of
the Closing Date (1) a true and complete copy of the respective
certificate of incorporation of OCG and Merger Sub, certified as of
a recent date by the Secretary of State of the State of Delaware,
and a true and complete copy of the respective bylaws of OCG and
Merger Sub, as certified by the Secretary or an Assistant Secretary
of OCG and Merger Sub, as applicable, and (2) a true and complete
copy of the resolutions of the respective boards of directors of OCG
and Merger Sub authorizing the execution, delivery and performance
of this Agreement by OCG and Merger Sub and the consummation of the
transactions contemplated hereby; and
(B) a certificate of the Secretary of State of the State of
Delaware certifying the good standing of OCG and Merger Sub in such
State, in each case, dated within 10 days of the Closing Date.
(d) At the Closing, CMPI shall furnish OCG and Merger Sub with:
(i) a certificate executed by the Secretary or an
Assistant Secretary of CMPI certifying as of the date of the
Closing Date (1) a true and complete copy of the articles of
incorporation of CMPI, certified as of a recent date by the
Secretary of State of the State of California, and a true and
complete copy of the bylaws of CMPI, certified by the
Secretary or an Assistant Secretary of CMPI, and (2) a true
and complete copy of the resolutions of the board of directors
of CMPI authorizing the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby; and
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(ii) a certificate of each appropriate Secretary of
State certifying the good standing of CMPI in California and
in all states in which it is qualified to do business, in each
case, dated within 10 days of the Closing Date.
(e) At the Closing, CMPI shall pay and deliver to PSI, by wire
transfer to an account of PSI designated by PSI in writing prior to
the Closing Date, an amount equal to the difference, if any, between
$200,000 and the cumulative amount theretofore advanced by CMPI to
OCG as evidenced by the New Promissory Note referred to in Section
1.4.
(f) At the Closing, OCG shall deliver to CMPI the signed
statements of the former creditors of OCG referred to in Section
1.1(d).
(g) At the Closing, OCG shall deliver to CMPI the resignation
and release agreements provided for in Section 8.9.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CMPI
CMPI represents and warrants to OCG that the statements contained in this
Article IV are true and correct except as disclosed in a disclosure letter, if
any, delivered by CMPI to OCG as of the date hereof:
4.1 Organization and Qualification
(a) CMPI is a corporation duly organized, validly existing and in
good standing under the laws of the State of California, is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction in which the character of CMPI's properties or the nature of
its business makes such qualification necessary, except in jurisdictions,
if any, where the failure to be so qualified would not result in a CMPI
Material Adverse Effect (as defined below). CMPI has all requisite
corporate or other power and authority to own, use or lease its properties
and to carry on its business as it is now being conducted. CMPI has made
available to OCG a complete and correct copy of its articles of
incorporation and bylaws, each as amended to date, and CMPI's articles of
incorporation and bylaws as so delivered are in full force and effect.
CMPI is not in default in any respect in the performance, observation or
fulfillment of any provision of its articles of incorporation or bylaws.
(b) CMPI has no Subsidiaries (as defined below).
(c) For purposes of this Agreement, (i) a "CMPI Material Adverse
Effect" shall mean any event, circumstance, condition, development or
occurrence causing, resulting in or having (or with the passage of time
likely to cause, result in, or have) a material adverse effect on the
financial condition, business, assets, properties, prospects or results of
operations of CMPI; and (ii) "Subsidiary" shall mean, with respect to any
party, any corporation or other organization, whether incorporated or
unincorporated, of which (x) at least a majority of the securities or
other interests having by their terms voting power to elect a majority of
the board of directors or others performing similar functions with respect
to such corporation or other organization is directly or indirectly
beneficially owned or controlled by such party or by any one or more of
its subsidiaries, or by such party and one or more of its subsidiaries, or
(y) such party or any Subsidiary of such party is a general partner of a
partnership or a manager of a limited liability company.
4.2 Capitalization
The authorized capital stock of CMPI consists of 3,000 shares of CMPI
Common Stock, of which 2,000 shares were issued and outstanding as of the date
of this Agreement and owned of record by the CMPI Shareholders. As of the date
of this Agreement, CMPI also has outstanding options or other rights entitling
the holders to acquire an aggregate of 138 shares of CMPI Common Stock, all of
which shares shall be issued and outstanding as of the Closing. As of the
Closing, there will be no outstanding subscriptions, options, rights, warrants,
convertible securities, stock appreciation rights, phantom equity or other
agreements or commitments obligating CMPI to issue, transfer, sell, redeem,
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repurchase or otherwise sell, issue or acquire any shares of CMPI Common Stock,
except for the CMPI Convertible Notes, which by their terms are convertible into
shares of OCG Common Stock following the Closing.
4.3 Authority
CMPI has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by CMPI's
board of directors and the CMPI Shareholders, and no other corporate proceedings
on the part of CMPI are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by CMPI and, assuming the due authorization, execution
and delivery hereof and thereof by the other parties hereto, constitutes the
legal, valid and binding obligation of CMPI enforceable against CMPI in
accordance with its terms, except as such enforceability may be subject to the
effects of bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting the rights of creditors and of general principles of
equity (the "Enforceability Exception").
4.4 Consents and Approvals; No Violation
The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the performance by CMPI of its obligations
hereunder will not:
(a) conflict with any provision of CMPI's articles of incorporation
or bylaws;
(b) require any consent, waiver, approval, order, authorization or
permit of, or registration, filing with or notification to, (i) any
governmental or regulatory authority or agency (a "Governmental
Authority"), except for applicable requirements of the Securities Act of
1933, as amended (the "Securities Act"), state securities or blue sky
laws, and approvals that are ministerial in nature and are customarily
obtained from Governmental Authorities after the Effective Time in
connection with transactions of CMPI of the same nature as are
contemplated hereby ("Customary Post-Closing Consents") or (ii) any third
party other than a Governmental Authority, other than such
non-Governmental Authority third party consents, waivers, approvals,
orders, authorizations and permits that would not (x) result in a CMPI
Material Adverse Effect, (y) materially impair the ability of CMPI to
perform its obligations under this Agreement or (z) prevent the
consummation of any of the transactions contemplated by this Agreement;
(c) result in any violation of or the breach of or constitute a
default (with notice or lapse of time or both) under, or give rise to any
right of termination, cancellation or acceleration or guaranteed payments
or a loss of a material benefit under, any of the terms, conditions or
provisions of any note, lease, mortgage, license, agreement or other
instrument or obligation to which CMPI or any of its Subsidiaries is a
party or by which CMPI or any of its Subsidiaries or any of their
respective properties or assets may be bound, except for such violations,
breaches, defaults, or rights of termination, cancellation or
acceleration, or losses as to which requisite waivers or consents have
been obtained or which, individually or in the aggregate, would not (i)
result in a CMPI Material Adverse Effect, (ii) materially impair the
ability of CMPI or any of its Subsidiaries to perform its obligations
under this Agreement or (iii) prevent the consummation of any of the
transactions contemplated by this Agreement;
(d) violate the provisions of any order, writ, injunction, judgment,
decree, statute, rule or regulation applicable to CMPI or any of its
Subsidiaries;
(e) result in the creation of any lien, mortgage, pledge, security
interest, encumbrance, claim or change of any kind ("Lien," if singular,
or "Liens," if plural) upon any shares of capital stock or material assets
of CMPI or any of its Subsidiaries under any agreement or instrument to
which CMPI or any of its Subsidiaries is a party or by which CMPI or any
of its Subsidiaries or any of their materials assets is bound; or
(f) result in any holder of any securities of CMPI being entitled to
appraisal, dissenters' or similar rights.
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4.5 Required Stockholder Vote or Consent
The only vote of the holders of any class or series of capital stock of
CMPI that will be necessary to consummate the Merger and the other transactions
contemplated by this Agreement is the approval of this Agreement by the CMPI
Shareholders.
4.6 Financial Statements
The unaudited consolidated financial statements of CMPI for the year ended
December 31, 2004 (the "CMPI Financial Statements") delivered to OCG have been
prepared from, and are in accordance with, the books and records of CMPI and
fairly present the consolidated financial position of CMPI as of the date
thereof and the consolidated results of operations of CMPI for the periods
presented therein (subject to year-end adjustments).
4.7 Absence of Undisclosed Liabilities
Since the date of the balance sheet included in the CMPI Financial
Statements, CMPI has incurred no Liabilities other than the CMPI Convertible
Notes, except in the ordinary course of business.
4.8 Absence of Certain Changes
Except as contemplated by this Agreement, (a) CMPI has conducted its
business in all material respects in the ordinary course, (b) there has not been
any change or development, or combination of changes or developments that,
individually or in the aggregate, would have a CMPI Material Adverse Effect and
(c) there has not been any amendment of any term of any outstanding security of
CMPI.
4.9 Taxes
Except for matters that would not have a CMPI Material Adverse Effect,
CMPI has filed all material tax returns required by applicable law to be filed
by it and has paid or accrued all taxes shown as due thereon. CMPI has no
knowledge of a material tax deficiency which has been asserted or threatened
against CMPI.
4.10 Litigation
Except for matters that would not have a CMPI Material Adverse Effect,
there is no suit, claim, action, proceeding or investigation pending or, to
CMPI's knowledge, threatened against or directly affecting CMPI or any of the
directors or officers of CMPI in their capacity as such. Neither CMPI nor, to
its knowledge, any officer, director or employee of CMPI, has been permanently
or temporarily enjoined by any order, judgment or decree of any court or any
other Governmental Authority from engaging in or continuing any conduct or
practice in connection with the business, assets or properties of CMPI, nor, to
the knowledge of CMPI, is CMPI or any officer, director or employee of CMPI
under investigation by any Governmental Authority. There is not in existence any
order, judgment or decree of any court or other tribunal or other agency
enjoining or requiring CMPI to take any action of any kind with respect to its
business, assets or properties.
4.11 Compliance with Applicable Laws
CMPI holds all material approvals, licenses, permits, registrations and
similar type authorizations necessary for the lawful conduct of its business, as
now conducted, and, to CMPI's knowledge, such business is not being, and CMPI
has not received any notice from any Governmental Authority or person that any
such business has been or is being, conducted in violation of any law, ordinance
or regulation, including without limitation any law, ordinance or regulation
relating to occupational health and safety, except for possible violations which
either individually or in the aggregate have not resulted and would not result
in a CMPI Material Adverse Effect.
4.12 Insurance
CMPI currently has in place all policies of insurance which are reasonably
required in connection with the operation of the business of CMPI as currently
conducted in accordance with applicable laws and all agreements relating to
CMPI.
4.13 Permits
Immediately prior to the Effective Time and except for Customary
Post-Closing Consents, CMPI will hold all of the permits, licenses,
certificates, consents, approvals, entitlements, plans, surveys, relocation
9
plans, environmental impact reports and other authorizations of Governmental
Authorities ("Permits") required or necessary to own, operate, use and maintain
its properties and conduct its operations as presently conducted, except for
such Permits, the lack of which, individually or in the aggregate, would not
have a CMPI Material Adverse Effect.
4.14 Employee Benefit Plans
Neither CMPI nor any trade or business, whether or not incorporated, which
together with CMPI would be deemed a "single employee" within the meaning of
Section 414(b), (c) or (m) of the Code or Section 4001(b)(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), has, or on or
before the Closing will have, sponsored, maintained or contributed to any
employee benefits, plan or arrangement (including, but not limited to, any plan
described in Section 3(3) of ERISA) written six years prior to the Effective
Time.
4.15 Required Stockholder Vote or Consent
The only vote of the holders of any class or series of capital stock of
CMPI that will be necessary to consummate the Merger and the other transactions
contemplated by this Agreement is the approval of this Agreement by the CMPI
Shareholders, which has been duly obtained as evidenced by their execution of
this Agreement.
4.16 Brokers
No broker, finder or investment banker is entitled to any brokerage,
finder's fee or other fee or commission payable by CMPI in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of CMPI.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OCG AND XXXXXX
OCG and Xxxxxx, jointly and severally, represent and warrant to CMPI as
follows, except as disclosed in a disclosure letter delivered by OCG to CMPI as
of the date hereof (the "OCG Disclosure Letter"):
5.1 Organization and Qualification
(a) OCG is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction in which the character of OCG's properties or the nature of
its business makes such qualification necessary. OCG has made available to
the Company a complete and correct copy of its certificate of
incorporation and bylaws, each as amended to date, and OCG's certificate
of incorporation and bylaws as so delivered are in full force and effect.
OCG is not in default in any respect in the performance, observation or
fulfillment of any provision of its certificate of incorporation or
bylaws.
(b) As of the consummation of the Spin-off and as of the Closing
Date, OCG shall have no Subsidiaries other than Merger Sub, and shall own
or hold no investment or other interest in any Person.
(c) Merger Sub is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. OCG has made
available to the Company a complete and correct copy of its certificate of
incorporation and bylaws, each as amended to date, and Merger Sub's
certificate of incorporation and bylaws as so delivered are in full force
and effect. Merger Sub is not in default in any respect in the
performance, observation or fulfillment of any provision of its
certificate of incorporation or bylaws.
(d) Merger Sub is a direct, wholly-owned Subsidiary of OCG, was
incorporated on September 9, 2004, and has not engaged in any business
activities or conducted any operations of any kind, entered into any
agreement or arrangement with any Person or entity, or incurred, directly
or indirectly, any Liabilities, in each case, except in connection with
its incorporation and the transactions contemplated hereby.
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5.2 Capitalization
The authorized capital stock of OCG consists of ^common stock, $0.01 par
value per share (the "OCG Common Stock"), of which 50,000,000 shares are
authorized, and 1,000,000 shares of preferred stock, par value of $0.10 per
share ("OCG Preferred Stock" and, together with OCG Common Stock, the "OCG
Capital Stock"). Of the authorized shares of OCG Preferred Stock, 200,000 shares
have been designated as Series A Preferred Stock, 100,000 shares have been
designated as Series B Preferred Stock, 200,000 shares have been designated as
Series C Preferred Stock (the "OCG Series C Stock"), and 100,000 shares have
been designated as Series E Preferred Stock. As of the date of this Agreement,
OCG has issued and outstanding 49,901,121 shares of OCG Common Stock, no shares
of either A Preferred Stock or Series B Preferred Stock, 200,000 shares of OCG
Series C Stock, and 33,000 shares of Series E Preferred Stock. OCG also has
outstanding as of the date hereof OCG Stock Rights to acquire an aggregate of
18,841,262 shares of OCG Common Stock, which will be the subject of the Exchange
Offer and which, to the extent the Exchange Officer is accepted by the holders
of such OCG Stock Rights, will no longer be outstanding as of the Closing.
Schedule 5.2 of the OCG Disclosure Letter sets forth a true and complete list as
of the date hereof of all holders, and their holdings, of OCG Capital Stock and
OCG Stock Rights. The authorized capital stock of Merger Sub consists of 5,000
shares of Merger Sub Common Stock, all of which shares are outstanding and
owned, of record and beneficially, by OCG. There are no outstanding
subscriptions, options, rights, warrants, convertible securities, stock
appreciation rights, phantom equity or other agreements or commitments
obligating Merger Sub to issue, transfer, sell, redeem, repurchase or otherwise
sell, issue or acquire any shares of Merger Sub Common Stock. All outstanding
shares of OCG Capital Stock and Merger Sub Common Stock are validly issued,
fully paid and non-assessable, and free of preemptive rights. Except as set
forth above, and other than as contemplated in this Agreement, there are no OCG
Stock Rights, stock appreciation rights, phantom equity, or other agreements or
commitments obligating OCG or Merger Sub to issue, transfer, sell, redeem,
repurchase or otherwise acquire any shares of its respective capital stock of
any class.
5.3 Authority
(a) Each of OCG and Merger Sub has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the respective board of
directors of OCG and Merger Sub, and no other corporate proceedings on the
part of OCG and Merger Sub are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by OCG and Merger Sub, and,
assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes the legal, valid, and binding obligations of
OCG and Merger Sub enforceable against OCG or Merger Sub, as applicable,
in accordance with its terms, except for the Enforceability Exception.
(b) The Merger Shares have been duly and validly authorized for
issuance pursuant to the Merger and, when issued at the Closing, will be
validly issued, fully paid and non-assessable and free of any preemptive
right. The Merger Stock Rights have been duly authorized for issuance
pursuant to the Merger, and when issued at the Closing will be validly
issued and free of any preemptive right.
5.4 Consents and Approvals; No Violation
The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the performance by each of OCG and Merger
Sub of their respective obligations hereunder will not:
(a) conflict with any provision of the respective certificate or
articles of incorporation or bylaws of OCG or Merger Sub;
(b) require any consent, waiver, approval, order, authorization or
permit of, or registration, filing with or notification to, (i) any
Governmental Authority, except for applicable requirements of the
Securities Act, the Exchange Act, state securities or blue sky laws and
11
Customary Post-Closing Consents or (ii) any third party other than a
Governmental Authority, other than such non-Governmental Authority third
party consents, waivers, approvals, orders, authorizations and permits
that would not (x) materially impair the ability of OCG or any of its
Subsidiaries to perform its obligations under this Agreement or (y)
prevent the consummation of any of the transactions contemplated by this
Agreement;
(c) result in any violation of or the breach of or constitute a
default (with notice or lapse of time or both) under, or give rise to any
right of termination, cancellation or acceleration or guaranteed payments
or a loss of a material benefit under, any of the terms, conditions or
provisions of any note, lease, mortgage, license, agreement or other
instrument or obligation to which OCG or any of its Subsidiaries is a
party or by which OCG or any of its Subsidiaries or any of their
respective properties or assets may be bound, except for such violations,
breaches, defaults, or rights of termination, cancellation or
acceleration, or losses as to which requisite waivers or consents have
been obtained or which, individually or in the aggregate, would not (i)
materially impair the ability of OCG or any of its Subsidiaries to perform
its obligations under this Agreement or (ii) prevent the consummation of
any of the transactions contemplated by this Agreement;
(d) violate the provisions of any order, writ, injunction, judgment,
decree, statute, rule or regulation applicable to OCG or any of its
Subsidiaries;
(e) result in the creation of any Lien upon any properties or assets
or on any shares of capital stock of OCG or its Subsidiaries under any
agreement or instrument to which OCG or any of its Subsidiaries is a party
or by which OCG or any of its Subsidiaries or any of their properties or
assets is bound; or
(f) result in any holder of any securities of OCG or any of its
Subsidiaries being entitled to appraisal, dissenters' or similar rights.
5.5 OCG SEC Reports
OCG filed with the Securities and Exchange Commission (the "SEC"), and has
heretofore made available to CMPI, true and complete copies of each form,
registration statement, report, schedule, proxy or information statement and
other document (including exhibits and amendments thereto), including without
limitation any annual reports to stockholders incorporated by reference in
certain of such reports, required to be filed by it or its predecessors with the
SEC since January 1, 2001 under the Securities Act or the Exchange Act
(collectively, the "OCG SEC Reports"). As of the respective dates such OCG SEC
Reports were filed or, if any such OCG SEC Reports were amended, as of the date
such amendment was filed, to OCG's and Xxxxxx'x knowledge, each of the OCG SEC
Reports, including without limitation any financial statements or schedules
included therein, (a) complied in all material respects with all applicable
requirements of the Securities Act and the Exchange Act, as the case may be, and
the applicable rules and regulations promulgated thereunder, and (b) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
5.6 Financial Statements
To the best of their knowledge, each of the consolidated financial
statements of OCG contained in the OCG SEC Reports (including any related notes
and schedules) (the "OCG Financial Statements") has been prepared from, and is
in accordance with, the books and records of OCG and its consolidated
Subsidiaries, complies in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, has been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis (except as may be
indicated in the notes thereto and subject, in the case of quarterly financial
statements, to normal and recurring year end adjustments) and fairly presents,
in conformity with GAAP applied on a consistent basis (except as may be
indicated in the notes thereto), the consolidated financial position of OCG and
its Subsidiaries as of the date thereof and the consolidated results of
operations and cash flows (and changes in financial position, if any) of OCG and
its Subsidiaries for the periods presented therein (subject to normal year end
adjustments and the absence of financial footnotes in the case of any unaudited
interim financial statements).
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5.7 Absence of Undisclosed Liabilities
Except as described in the most recent of the OCG SEC Reports, neither OCG
nor any of its Subsidiaries has incurred any material liabilities or obligations
of any nature (contingent or otherwise). As of the Closing Date, and after
giving effect to the Spin-off and the Exchange, OCG shall have no assets and no
Liabilities or other obligations other than its obligation to pay the dividend
of PSI shares as part of the Spin-off and other obligations under this
Agreement.
5.8 Absence of Certain Changes
Except as disclosed in the OCG SEC Reports or as contemplated by this
Agreement, (a) since at least December 31, 2002, OCG has conducted no business
and has had no operations other than its ownership of PSI, (b) there has not
been any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of OCG or any
repurchase, redemption or other acquisition by OCG of any outstanding shares of
capital stock or other securities of, or other ownership interests in, OCG or
its Subsidiaries and (c) there has not been any amendment of any term of any
outstanding security of OCG or its Subsidiaries.
5.9 Taxes
OCG and each of its Subsidiaries have filed all material tax returns
required by applicable law to be filed by any of them and have paid or accrued
all taxes shown as due thereon. OCG and Xxxxxx have no knowledge of a material
tax deficiency, which has been asserted or threatened against OCG or any of its
Subsidiaries.
5.10 Litigation
There is no suit, claim, action, proceeding or investigation pending or,
to OCG's and Xxxxxx'x knowledge, threatened against or directly affecting OCG,
or any of the directors or officers of OCG in their capacity as such. Neither
OCG nor any officer, director or employee of OCG, has been permanently or
temporarily enjoined by any order, judgment or decree of any court or any other
Governmental Authority from engaging in or continuing any conduct or practice in
connection with the business, assets or properties of OCG, nor, to the knowledge
of OCG, is OCG, or any officer, director or employee of OCG or under
investigation by any Governmental Authority. There is not in existence any
order, judgment or decree of any court or other tribunal or other agency
enjoining or requiring OCG to take any action of any kind with respect to its
business, assets or properties.
5.11 Employee Benefit Plans
Neither OCG nor any trade or business, whether or not incorporated, which
together with OCG would be deemed a "single employee" within the meaning of
Section 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA has, or on
or before the Closing will have, sponsored, maintained or contributed to any
employee benefits, plan or arrangement (including, but not limited to, any plan
described in Section 3(3) of ERISA) written six years prior to the Effective
Time.
5.12 Compliance with Applicable Laws
OCG holds all Permits, if any, necessary for the lawful conduct of its
businesses, as now conducted, and such businesses are not being, and OCG has not
received any notice from any Governmental Authority or Person that any such
business has been or is being, conducted in violation of any law, ordinance or
regulation, including without limitation any law, ordinance or regulation
relating to occupational health and safety
5.13 Insurance
OCG and its Subsidiaries currently have in place the policies of insurance
described in Schedule 5.13 of the OCG Disclosure Letter.
5.14 Employees
Schedule 5.14 of the OCG Disclosure letter sets forth a true and complete
list of all directors, officers and other employees of OCG.
5.15 Permits
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Immediately prior to the Effective Time and except for Customary
Post-Closing Consents, OCG and its subsidiaries will hold all of the Permits
required or necessary to own, operate, use and maintain their respective
properties and conduct their respective operations as presently conducted.
5.16 Contracts
As of the Closing Date, OCG will not be party to any material contract,
lease, indenture, agreement, arrangement or understanding other than this
Agreement and the other agreements provided for herein.
5.17 Required Stockholder Vote or Consent
No vote or consent of the holders of any class or series of OCG Stock is
or will be necessary to consummate the Merger and the other transactions
contemplated by this Agreement.
5.18 Brokers
Except for the finder's fee payable to Mercator Advisory Group pursuant to
the letter of intent among OCG, CMPI and Xxxxxxxxxx.xxx, Inc. relating to the
transactions contemplated by this Agreement, no broker, finder or investment
banker is entitled to any brokerage, finder's fee or other fee or commission
payable by OCG or any of its Subsidiaries or the Surviving corporations in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of OCG or any of its Subsidiaries.
5.19 Issuance of the Securities
Upon the Effective Time, the OCG Series F Stock issuable pursuant to the
Merger will be duly authorized and validly issued, fully paid and nonassessable,
free and clear of all Liens other than restrictions on transfer provided for or
referred to in this Agreement.
5.20 Xxxxxxxx-Xxxxx; Internal Accounting Controls
OCG is, or will be, in material compliance with all provisions of the
Xxxxxxxx-Xxxxx Act of 2002 that are applicable to it as of the Closing Date. OCG
and its Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. OCG's certifying officers have
evaluated the effectiveness of its controls and procedures as of the date prior
to the filing date of the most recently filed periodic report under the Exchange
Act (such date, the "Evaluation Date"). OCG presented in its most recently filed
periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Since the Evaluation Date, there
have been no significant changes in OCG's internal controls (as such term is
defined in Item 307(b) of Regulation S-K under the Exchange Act) or, to OCG's
and Xxxxxx'x knowledge, in other factors that could significantly affect OCG's
internal controls.
5.21 Registration Rights
No person has any right to cause OCG to effect the registration under the
Securities Act of any securities of OCG or its Subsidiaries.
5.22 Exchange Act Requirements
OCG's Common Stock is registered pursuant to Section 12(g) of the Exchange
Act, and OCG has taken no action designed to, or which to its and Xxxxxx'x
knowledge is likely to have the effect of, terminating the registration of OCG
Common Stock under the Exchange Act, nor has OCG received any notification that
the Commission is contemplating terminating such registration.
5.23 Transactions with Affiliates and Employees
Except as set forth in the OCG SEC Reports, none of the officers or
directors of OCG and, to OCG's and Xxxxxx'x knowledge, none of the employees of
OCG is presently a party to any transaction with OCG or any of its Subsidiaries
14
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director or such
employee or, to OCG's and Xxxxxx'x knowledge, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer,
director, trustee or partner, in each case other than reimbursement for expenses
incurred on behalf of OCG.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF CMPI SHAREHOLDERS
The CMPI Shareholders, severally and not jointly, each represents and
warrant, to OCG as follows:
6.1 Power and Authority Relative to this Transaction
Such CMPI Shareholder has full power and authority and has taken all
action necessary to permit it to execute and deliver and to carry out the terms
of this Agreement and all other documents or instruments required hereby. This
Agreement constitutes the legal, valid and binding obligation of such CMPI
Shareholder, enforceable in accordance with its terms, except for the
Enforceability Exception.
6.2 Accredited Investor
Such CMPI Shareholder is an "accredited investor" as that term is defined
in Rule 501 of Regulation D promulgated under the Securities Act.
6.3 Investment Representations
(a) Such CMPI Shareholder is acquiring the OCG Series F Stock
issuable pursuant to the Merger, and will acquire any Series F Conversion
Shares, for such CMPI Shareholder's own account for the purpose of
investment, and not with a view to distribution or resale thereof in
violation of the Securities Act and the rules and regulations promulgated
thereunder. Such CMPI Shareholder understands that none of the OCG Series
F Stock or the Series F Conversion Shares has been registered under the
Securities Act or any other applicable securities laws, and, therefore,
cannot be resold unless they are subsequently registered under the
Securities Act and other applicable securities laws, or unless an
exemption from such registration is available. Such CMPI Shareholder
agrees not to resell or otherwise dispose of all or any part of the OCG
Series F Stock or the Series F Conversion Shares, except as permitted by
law, including, without limitation, any regulations under the Securities
Act and other applicable securities laws. Such CMPI Shareholder
acknowledges that OCG does not have any present intention and is under no
obligation to register the OCG Series F Stock or the Series F Conversion
Shares under the Securities Act and other applicable securities laws.
(b) Such CMPI Shareholder understands and agrees that all
certificates evidencing any of the OCG Series F Stock or Series F
Conversion Shares, whether upon initial issuance or upon any transfer
thereof, shall bear a legend, prominently stamped or printed thereon,
reading substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY OTHER SECURITIES
LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO DISTRIBUTION OR RESALE. SUCH SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933
AND ANY OTHER APPLICABLE SECURITIES LAWS, UNLESS THE HOLDER SHALL
HAVE OBTAINED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED OR THE TRANSFEREE
IS AN AFFILIATE OF THE HOLDER."
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6.4 Access to Information
During the course of the transactions contemplated by this Agreement and
prior to the purchase of any OCG Series F Stock or Series F Conversion Shares,
such CMPI Shareholder has had the opportunity to ask questions of and receive
answers from representatives of OCG concerning the terms and conditions of the
offering of the OCG Series F Stock and the Series F Conversion Shares, and to
obtain additional information, documents, records and books relative to OCG and
an investment in OCG.
6.5 Knowledge and Experience
Such CMPI Shareholder has sufficient knowledge and experience in business
and financial matters so as to enable such CMPI Shareholder to analyze and
evaluate the merits and risks of the investment contemplated hereby and is
capable of protecting its interest in connection with this transaction. Such
CMPI Shareholder is able to bear the economic risk of such investment, including
a complete loss of the investment.
ARTICLE VII
CONDUCT OF BUSINESS PENDING THE MERGER
7.1 Conduct of Business by the OCG and CMPI Pending the Merger
From the date hereof until the Effective Time, unless OCG and CMPI shall
otherwise agree in writing, and expect as otherwise contemplated by this
Agreement, OCG and CMPI and their respective Subsidiaries shall conduct their
business in the ordinary course consistent with past practice. Except as
otherwise provided in this Agreement, and without limiting the generality of the
foregoing, from the date hereof until the Effective Time, without the written
consent of OCG and CMPI, which consent shall not be unreasonably withheld:
(a) Neither OCG nor CMPI will adopt or propose any change to their
respective certificate or articles of incorporation or bylaws;
(b) Neither OCG nor CMPI will (i) declare, set aside or pay any
dividend or other distribution with respect to any shares of capital stock
of the respective OCG and CMPI, or (ii) repurchase, redeem or otherwise
acquire any outstanding shares of capital stock or other securities of, or
other ownership interests in, OCG or CMPI, as the case may be;
(c) Neither OCG nor CMPI will, nor permit any of its Subsidiaries
to, merge or consolidate with any other person or acquire assets of any
other person except in the ordinary course of business or pursuant to
transactions among wholly-owned subsidiaries of OCG or CMPI, as the case
may be;
(d) Neither OCG nor CMPI will, nor permit any of its Subsidiaries
to, sell, lease, license or otherwise surrender, relinquish or dispose of
any material assets or properties except in the ordinary course of
business;
(e) Neither OCG nor CMPI will (i) issue any securities (whether
through the issuance or granting of options, warrants, rights or
otherwise, (ii) enter into any amendment of any term of any outstanding
security of such company or of any of its Subsidiaries, (iii) incur any
indebtedness, except trade debt in the ordinary course of business and
debt pursuant to existing or previously disclosed contemplated credit
facilities or arrangements, (iv) increase in any material respect
compensation, bonus or other benefits payable to, or modify or amend any
employment agreements or severance agreements with, any executive officer,
or (v) enter into any settlement or consent with respect to any pending
litigation, other than settlements in the ordinary course of business or
on terms which are not otherwise materially adverse to such company and
its Subsidiaries taken as a whole;
(f) OCG and CMPI will not change any method of accounting or
accounting practice by OCG and CMPI or any of their Subsidiaries, except
for any such change required by GAAP;
(g) Neither OCG nor CMPI will, nor permit any of its Subsidiaries
to, (i) take, or agree or commit to take, any action that would make any
16
representation and warranty of the respective company hereunder inaccurate
in any material respect at, or as of any time prior to, the Effective Time
or (ii) omit, or agree or commit to omit, to take any action necessary or
appropriate to prevent any such representation or warranty from being
inaccurate in any material respect at any such time; and
(h) Neither OCG nor CMPI will, nor permit any of its Subsidiaries
to, agree or commit to do any of the foregoing.
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.1 Amendment of Certificate of Incorporation
As soon as is practicable following the Effective Time, OCG shall amend
its certificate of incorporation to increase the authorized shares of OCG Common
Stock as necessary to permit the conversion, in full, of the OCG Series C Stock
and OCG Series F Stock and the issuance of the shares of OCG Common Stock
issuable upon conversion of OCG Series C Stock and OCG Series F Stock in
accordance with the terms thereof, and shall reserve out of such increased
authorized shares of OCG such number of shares equal at all times to the
aggregate shares of OCG Common Stock issuable upon such conversion.
8.2 Expenses
(a) All Expenses (as defined below) incurred by the parties hereto
shall be borne solely and entirely by the party that has incurred such
Expenses.
(b) "Expenses" as used in this Agreement shall include all
out-of-pocket expenses (including, without limitation, all reasonable fees
and expenses of counsel, accountants, investment bankers, experts and
consultants to a party hereto and its affiliates) incurred by a party or
on its behalf in connection with or related to the authorization,
preparation, negotiation, execution and performance of this Agreement and
all other matters related to the consummation of the transactions
contemplated hereby.
8.3 Cooperation
Subject to compliance with applicable law, from the date hereof until the
Effective Time, each of the parties hereto shall confer on a regular and
frequent basis with one or more representatives of the other parties to report
operational matters of materiality and the general status of ongoing operations
and shall promptly provide the other parties or their counsel with copies of all
filings made by such party with any Governmental Authority in connection with
this Agreement and the transactions contemplated hereby.
8.4 Publicity
Neither the parties hereto nor any of their respective affiliates shall
issue or cause the publication of any press release or other announcement with
respect to the Merger, this Agreement or the other transactions contemplated
hereby without the prior consultation of the other parties, except as may be
required by law, and will use reasonable efforts to provide copies of such
release or other announcement to the other parties hereto, and give due
consideration to such comments as such other parties may have, prior to such
release.
8.5 Additional Actions
Subject to the terms and conditions of this Agreement, each of the parties
hereto agrees to use all reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations, or to remove any injunctions or other
impediments or delays, to consummate and make effective the Merger and the other
transactions contemplated by this Agreement.
8.6 Filings
Each party hereto shall make all filings required to be made by such party
in connection herewith or desirable to achieve the purposes contemplated hereby,
and shall cooperate as needed with respect to any such filing by any other party
hereto.
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8.7 Consents
Each party hereto shall use all reasonable efforts to obtain all consents
necessary or advisable in connection with such party's obligations hereunder.
8.8 Notice of Certain Events
Each party to this Agreement shall promptly as reasonably practicable
notify the other parties hereto of:
(a) any notice or other communication from any Person alleging that
the consent of such Person (or other Person) is or may be required in
connection with the transactions contemplated by this Agreement;
(b) any notice or other communication from any Governmental
Authority in connection with the transactions contemplated by this
Agreement; or
(c) any actions, suits, claims, investigations or proceedings
commenced or, to the best of such party's knowledge, threatened against,
relating to or involving or otherwise affecting such party or any of such
party's Subsidiaries which, if pending on the date of this Agreement,
would have rendered untrue any representation contained in Article IV, V
or VI, or which relate to the consummation of the transactions
contemplated by this Agreement.
8.9 Resignations and Releases
Prior to the Closing Date, OCG shall use its best efforts to obtain from
each of its directors, officers and employees a written resignation and release
agreement, substantially in the form attached hereto as Exhibit C, by which each
such Person agrees to resign from OCG effective as of the Closing Date and to
release OCG and its affiliates from any and all Liability.
8.10 Spin-off and Exchange Offer
Following the execution of this Agreement, OCG and PSI shall promptly take
such steps as are necessary and appropriate to consummate the Spin-off, the
Exchange Offer and the other transactions contemplated hereby in compliance with
all applicable laws, rules and regulations, including, without limitation, SEC
requirements.
8.11 Employee Covenants
(a) Effective as of the Closing Date, PSI shall rehire on an
"at-will" basis and at their then present rate of pay all employees of OCG
("Employees"), including Employees who are absent from work due to
disability or illness or who are on approved leave of absence or layoff
status.
(b) PSI shall assume at the Closing and be responsible for all
obligations and Liabilities of OCG to Employees and any former employees
or retirees of OCG, if any, including without limitation, those which
arise under or pursuant to any Employee Benefit Plan. Without limiting the
foregoing or the generality of the assumption of the Liabilities pursuant
to the Spin-off, PSI shall assume from and after the Closing and
thereafter be responsible for:
(i) all Liabilities for holiday and vacation pay to which any
Employee is entitled; and
(ii) all Liabilities under the worker's compensation laws of
any jurisdiction with respect to Employees.
(c) PSI shall be responsible for any and all severance benefits as
may arise with respect to the termination of employment of any Employee at
any time, whether prior to, at or after the Closing Date.
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8.12 Related-Party Transactions
During the one-year period following the Closing Date, OCG shall not sell
or issue, directly or indirectly, to any of the CMPI shareholders or any of
their respective affiliates any shares of OCG Capital Stock or any securities or
other instruments convertible into or exchangeable for any such Capital Stock,
and shall not merge with or acquire, directly or indirectly, Xxxxxxxxxx.xxx or
any other affiliate of OCG or of the Surviving Corporation, or any of their
respective affiliates, except, if at all, in a transaction in which the holders
of OCG Capital Stock immediately prior to the Effective Time receive shares of
OCG Capital Stock sufficient to prevent any dilution to such holders in their
respective percentage ownership of OCG Capital Stock as of the date of such
sale, issuance or other transaction.
ARTICLE IX
ESCROW
9.1 Escrow Generally
(a) From and after the Closing, OCG shall hold in escrow the
Retained Merger Shares until the same have been cancelled or released as
provided in this Section 9.1.
(b) For purposes of this Section 9.1, the following terms shall have
the meanings indicated:
(i) "Conversion Rate" shall mean the ratio that the Actual
CMPI Note Conversion Shares bears to the Maximum CMPI Note
Conversion Shares; and
(ii) "Escrow Release Date" means the date as of which all of
the outstanding CMPI Convertible Notes shall have been converted, in
full, into shares of OCG Common Stock.
(c) As of the Escrow Release Date, OCG shall cancel and retire a
number of the Retained Merger Shares (the "Cancelled Retained Shares")
determined by multiplying the Conversion Rate by the number of the
Retained Merger Shares. Such cancellation and retirement shall be made
ratably among the CMPI Shareholders in whose names such Retained Merger
Shares are held.
(d) Promptly following the Escrow Release Date, OCG shall prepare,
execute and deliver to each CMPI Shareholder a stock certificate
evidencing the net number of Retained Merger Shares, after deducting the
Cancelled Retained Shares, to which such holder is entitled hereunder and
after giving effect to the provisions of the CMPI Convertible Notes with
respect to the relative percentage ownership of OCG by the "Existing
Shareholders" (as defined in the CMPI Convertible Notes) and the holders
of the CMPI Convertible Notes.
9.2 Transfer of Retained Shares and Stock Rights
No CMPI Shareholder may sell, assign, transfer or otherwise dispose of any
Retained Merger Shares, or any interest therein, other than by reason of the
laws of descent and distribution or succession by operation of law. Any
contemplated transfer in violation of this Section 9.2 shall be null and void ab
initio.
ARTICLE X
CONDITIONS TO CONSUMMATION OF THE MERGER
10.1 Conditions to the Obligation of Each Party
The respective obligations of each party to effect the Merger shall be
subject to the fulfillment at or prior to the Effective Time of the following
conditions:
(a) no action, suit or proceeding instituted by any Governmental
Authority shall be pending and no statute, rule or regulation and no
19
injunction, order, decree or judgment of any court or Governmental
Authority of competent jurisdiction shall be in effect, in each case which
would prohibit, restrain, enjoin or restrict the consummation of the
Mergers;
(b) OCG and CMPI shall have obtained such permits, authorizations,
consents, or approvals required to consummate the transactions
contemplated hereby; and
(c) the Spin-off and the Exchange Offer shall have been consummated
as contemplated herein.
10.2 Conditions to the Obligations of OCG and Merger Sub
The obligations of OCG and Merger Sub to effect the Merger are subject to
the satisfaction at or prior to the Effective Time of the following conditions:
(a) CMPI shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or
prior to the Effective Time, and the representations and warranties of
CMPI contained in this Agreement, to the extent qualified with respect to
materiality shall be true and correct in all respects, and to the extent
not so qualified shall be true and correct in all material respects, in
each case, as of the date of this Agreement and at and as of the Effective
Time as if made at and as of such time, and OCG shall have received a
certificate of the Chief Executive Officer and the Chief Financial Officer
of CMPI as to the satisfaction of this condition;
(b) all proceedings to be taken by CMPI in connection with the
transactions contemplated by this Agreement and all documents, instruments
and certificates to be delivered by CMPI in connection with the
transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to OCG and its counsel; and
(c) from the date of this Agreement through the Effective Time,
there shall not have occurred any change in the financial condition,
business, operations or prospects of CMPI and its Subsidiaries, taken as a
whole, that would constitute a CMPI Material Adverse Effect.
10.3 Conditions to the Obligations of CMPI
The obligation of CMPI to effect the Merger is subject to the satisfaction
at or prior to the Effective Time of the following conditions:
(a) OCG shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or
prior to the Effective Time and the representations and warranties of OCG
contained in this Agreement, to the extent qualified with respect to
materiality shall be true and correct in all respects, and to the extent
not so qualified shall be true and correct in all material respects, in
each case as of the date of this Agreement and at and as of the Effective
Time as if made at and as of such time, and CMPI shall have received a
certificate of the Chief Executive Officer and the Chief Financial Officer
of OCG as to the satisfaction of this condition;
(b) all OCG Stock Rights shall have been duly exchanged pursuant to
the Exchange Offer;
(c) the Series A Preferred Stock and Series B Preferred Stock of OCG
shall have been retired as provided in Section 3.4;
(d) OCG shall have delivered to CMPI the signed statements referred
to in Section 1.1(d) from the holders of all of the aggregate Liabilities
of OCG other than holders of Liabilities which do not exceed as of the
Closing $25,000 in the aggregate;
(e) OCG shall have received the resignations and release agreements
from each of its directors, officers and other employees as contemplated
in Section 8.9; and
20
(f) all proceedings to be taken by OCG and Merger Sub, as the case
may be, in connection with the transactions contemplated by this Agreement
and all documents, instruments and certificates to be delivered by OCG and
Merger Sub, as the case may be, in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in form
and substance to CMPI and its counsel.
ARTICLE XI
SURVIVAL AND INDEMNIFICATION
11.1 Survival of Representations and Warranties
The representations and warranties of the parties contained in this
Agreement shall survive the Effective Time for a period of two years following
the Effective Time.
11.2 Indemnification
(a) From and after the Closing, PSI (as such, the "Indemnifying
Party") shall indemnify, reimburse, defend and hold harmless OCG and the
Surviving Corporation and OCG's other Subsidiaries and affiliates,
successors or assigns (each, an "Indemnified Party") for any and all
direct or indirect claims, losses, liabilities, damages (including special
and consequential damages), costs (including court costs) and expenses,
including all reasonable attorneys' and accountants' fees and expenses
(hereinafter a "Loss" or "Losses"), arising from or in connection with (i)
any breach or inaccuracy of any representation or warranty of OCG, whether
such breach or inaccuracy exists or is made on the date of this Agreement
or as of the Closing, (ii) any breach of or noncompliance by OCG or PSI of
or with any covenant or agreement contained in this Agreement or in any
other agreement or instrument delivered in connection herewith, (iii) any
and all Liabilities of OCG or any of its Subsidiaries existing on or prior
to the Closing; and (iv) any attempt (whether or not successful) by any
Person to cause or require any Indemnified Party to pay or discharge any
Liability, or alleged Liability, of OCG or any of its Subsidiaries
existing on or prior to the Closing. If, by reason of the claim of any
Person relating to any of the matters subject to indemnification under
this Section 11.2, an encumbrance, attachment, garnishment or execution is
placed upon any of the property or assets of any Indemnified Party, the
Indemnifying Party shall also, promptly upon demand, furnish an indemnity
bond satisfactory to the Indemnified Party to obtain the prompt release of
such encumbrance, attachment, garnishment or execution.
(b) The Indemnifying Party shall be entitled to defend any claim,
action, suit or proceeding made by any third party against an Indemnified
Party with counsel approved by the Indemnified Party, such approval not to
be unreasonably withheld; provided, however, that the Indemnified Party
shall be entitled to participate in such defense with counsel of its
choice and at its own expense and, if the Indemnifying Party does not
provide a competent and vigorous defense, then the Indemnified Party's
participation shall be at the expense of the Indemnifying Party. The
Indemnified Party shall provide such cooperation and access to its books,
records and properties as the Indemnifying Party shall reasonably request
with respect to such matter; and the parties shall cooperate with each
other in order to ensure the proper and adequate defense thereof. An
Indemnifying Party shall not settle any claim subject to indemnification
hereunder without the prior written consent of the Indemnified Party,
which consent shall not be unreasonably withheld or delayed.
(c) With regard to claims of third parties for which indemnification
is payable hereunder, such indemnification shall be paid by the
Indemnifying Party (or amounts may be set off by the Indemnified Party)
upon the earliest to occur of: (i) the entry of a judgment against the
Indemnified Party and the expiration of any applicable appeal period, (ii)
the entry of an unappealable judgment or final appellate decision against
the Indemnified Party, (iii) the settlement of the claim, (iv) with
respect to indemnities for tax liabilities, upon the issuance of any final
resolution by a taxation authority, or (v) with respect to claims before
any administrative or regulatory authority, when the Loss is finally
determined and not subject to further review or appeal; provided, however,
that the Indemnifying Party shall pay on the Indemnified Party's demand
any cost or expense reasonably incurred by the Indemnified Party in
defending or otherwise dealing with such claim.
21
(d) To seek indemnification hereunder, an Indemnified Party shall
notify the Indemnifying Party of any claim for indemnification, specifying
in reasonable detail the nature of the Loss and the amount or an estimate
of the amount thereof.
ARTICLE XII
TERMINATION, AMENDMENT AND WAIVER
12.1 Termination
This Agreement may be terminated at any time prior to the Effective Time:
(a) by the mutual written consent of OCG and CMPI;
(b) by either OCG or CMPI if the Effective Time shall not have
occurred on or before July 31, 2005 (the "Termination Date"); provided,
that the party seeking to terminate this Agreement pursuant to this
Section 12.1(b) shall not have breached in any material respect its
obligations under this Agreement in any manner that shall have proximately
contributed to the failure to consummate the Mergers on or before the
Termination Date;
(c) by OCG or CMPI if there has been a material breach by one of the
other parties of any representation, warranty, covenant or agreement set
forth in this Agreement which breach (if susceptible to cure) has not been
cured in all material respects within 20 business days following receipt
by each party of notice of such breach; or
(d) by OCG or CMPI if there shall be any applicable law, rule or
regulation that makes consummation of the Merger illegal or if any
judgment, injunction, order or decree of a court or other Governmental
Authority of competent jurisdiction shall restrain or prohibit the
consummation of the Merger, and such judgment, injunction, order or decree
shall become final and nonappealable.
12.2 Effect of Termination
In the event of termination of the Agreement and the abandonment of
the Merger pursuant to this Article XII, all obligations of the parties
shall terminate, except the obligations of the parties pursuant to this
Section 12.2 and except for the provisions of Sections 8.2 and 8.4;
provided, however, that OCG shall remain obligated to CMPI under the New
Promissory Note in accordance with the terms thereof, and nothing herein
shall relieve any party from liability for any breach of this Agreement.
ARTICLE XIII
MISCELLANEOUS
13.1 Notices
All notices or communications hereunder shall be in writing (including
facsimile or similar writing) addressed as follows:
To OCG or Merger Sub: Xxxxxx Xxxxxx
President
OCG Technologies, Inc.
00 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
with a copy to: Xxxxx X. Xxxxx, Xx.
0000 Xxxxxx Xxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Facsimile No: (000) 000-0000
22
To CMPI: CenterStaging Musical Productions, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to: Xxxx & Xxxxx Professional Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile No: (000) 000-0000
Any such notice or communication shall be deemed given (i) when made,
if made by hand delivery, and upon confirmation of receipt, if made by
facsimile, (ii) one business day after being deposited with a next-day courier,
postage prepaid, or (iii) three business days after being sent certified or
registered mail, return receipt requested, postage prepaid, in each case
addressed as above (or to such other address as such party may designate in
writing from time to time).
13.2 Separability
If any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof which shall remain in full force and
effect.
13.3 Assignment
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors,
and assigns; provided, however, that neither this Agreement nor any rights
hereunder shall be assignable or otherwise subject to hypothecation and any
assignment in violation hereof shall be null and void.
13.4 Interpretation
The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
13.5 Counterparts
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same Agreement, and shall become effective when
one or more such counterparts have been signed by each of the parties and
delivered to each party.
13.6 Entire Agreement
This Agreement and the Ancillary Agreements represent the entire agreement
of the parties with respect to the subject matter hereof and shall supersede any
and all previous contracts, arrangements or understandings between the parties
hereto with respect to the subject matter hereof, including, without limitation,
the letter of intent dated November 23, 2004.
13.7 Governing Law
This Agreement shall be construed, interpreted, and governed in accordance
with the laws of California, without reference to rules relating to conflicts of
law.
13.8 Attorneys' Fees
If any action at law or equity, including an action for declaratory
relief, is brought to enforce or interpret any provision of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
expenses from the other party, which fees and expenses shall be in addition to
any other relief which may be awarded.
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13.9 No Third Party Beneficiaries
Except as provided in Section 11.2, no person or entity other than the
parties hereto is an intended beneficiary of this Agreement or any portion
hereof.
13.10 Amendments and Supplements
Prior to the Effective Time, this Agreement may be amended or supplemented
in writing by OCG and CMPI with respect to any of the terms contained in this
Agreement, except as otherwise provided by law.
13.11 Extensions, Waivers, Etc.
At any time prior to the Effective Time, either party may:
(a) extend the time for the performance of any of the obligations or
acts of the other party;
(b) waive any inaccuracies in the representations and warranties of
the other party contained herein or in any document delivered pursuant
hereto; or
(c) waive compliance with any of the agreements or conditions of the
other party contained herein.
Notwithstanding the foregoing, no failure or delay by any party hereto in
exercising any right hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right hereunder. Any agreement on the part
of a party hereto to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
OCG:
OCG TECHNOLOGY, INC.
By:
-------------------------------
Name: Xxxxxx Xxxxxx
Title: President
MERGER SUB:
EPIDEMIC INTERVENTION SYSTEMS, INC.
By:
-------------------------------
Name: Xxxxxx Xxxxxx
Title: President
CMPI:
CENTERSTAGING MUSICAL PRODUCTIONS, INC.
By:
-------------------------------
Name:
-------------------
Title:
-------------------
PSI:
PRIMECARE SYSTEMS, INC.
By:
-------------------------------
Name: Xxxxxx Xxxxx
Title: President
XXXXXX:
------------------------------------
Xxxxxx Xxxxxx
25
CMPI SHAREHOLDERS:
-----------------
-------------------------------
Xxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxxxxxx
-------------------------------
Jan Parent
-------------------------------
Xxxxxx Xxxxxxx
26
Schedule 4.2
List of CMPI Shareholders and Stock Rights Holders
Name Number of Shares of
---- CMPI Common Stock
-----------------
Xxxxx Xxxxxx .............................................. 400
Xxxxxx Xxxxxxxxxx ......................................... 400
Jan Parent ................................................ 600
Xxxxxx Xxxxxxx ............................................ 600
Others .................................................... 1381
-----
2,138
---------------------------------
(1) All of such shares are issuable pursuant to outstanding rights in favor of
the holders and will be issued and outstanding as of the Closing.
