EXHIBIT 10.1
AGREEMENT AND PLAN OF SHARE EXCHANGE
AGREEMENT (the "Agreement"), dated as of ____________ __, 2004, by and
between each of the entities listed on the signature page hereof (each, a
"Stockholder" of either Optron Technologies, Inc., a Nevada corporation ("OTI"),
or Cadogan Investments Limited ("Cadogan"), and collectively, the
"Stockholders"), and Cetalon Corporation, a Nevada corporation with an office at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Purchaser") and, solely with respect to its respective representations and
warranties, related indemnification obligations, and miscellaneous provisions,
OTI and Pointe Capital Limited ("Pointe").
W I T N E S S E T H:
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WHEREAS, OTI was recently organized to facilitate a business
combination transaction among OTI, Cadogan (with its subsidiary, Optron (Pty)
Ltd, a South African company ("OPL" or the "Business"), and the Purchaser, or an
alternative publicly tradable company;
WHEREAS, Cadogan, a wholly owned subsidiary of Pointe, owns of record
and beneficially all of the issued and outstanding common stock of OPL and none
of the issued and outstanding 1,400,000 shares of preferred stock of OPL;
WHEREAS, the Stockholders collectively own 100% of the issued and
outstanding common stock of OTI and Cadogan (the common stock of OTI shall be
referred to as the "OTI Shares"; the common stock of Cadogan shall be referred
to as the "Cadogan Shares"; and the common stock of OTI and Cadogan shall be
jointly referred to as the "Shares");
WHEREAS, each Stockholder, after completion of the share exchange
described herein will own of record and beneficially the number of shares of the
Purchaser's common stock, par value $0.0001 (the "Purchaser's Common Stock"),
set forth opposite each such Stockholder's name on the annexed SCHEDULE 1;
WHEREAS, the Purchaser, is a company operating under the protection of
Chapter 11 of Title 11 of the of the United States Codes and that has filed a
Disclosure Statement and Plan of Reorganization (the "Plan of Reorganization")
with the United States Bankruptcy court for the Central District of California,
Los Angeles Division (the "Bankruptcy Court");
WHEREAS, the Purchaser will divest itself of all of its assets
effective on the effective date of the Plan of Reorganization through the
transfer of all its assets to a Liquidating Trust; and
WHEREAS, the Stockholders are desirous of selling 100% of the Shares to
the Purchaser in exchange for an aggregate of 8,074,999 shares of the
Purchaser's Common Stock, representing approximately 78% of then-issued and
outstanding common stock of the Purchaser.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereby agree as follows:
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ARTICLE 1.
EXCHANGE OF SHARES
SECTION 1.1 SALE OF SHARES. On the terms and subject to the conditions
set forth in this Agreement, each Stockholder, severally and not jointly, hereby
agrees to sell, assign, transfer and deliver the Shares owned by it to the
Purchaser, free and clear of all liens, claims, charges or encumbrances, and the
Purchaser hereby agrees to purchase the Shares from the Stockholders, at the
Closing, for the consideration set forth in Section 1.2 hereof.
SECTION 1.2 PURCHASE PRICE. In exchange for the Shares, the Purchaser
shall issue and deliver to the Stockholders, at the Closing, an aggregate of
8,075,000 shares of the Purchaser's Common Stock (the "Exchange Shares"), which
shall represent approximately 77.644% of the then total issued and outstanding
shares of the Purchaser's Common Stock, free and clear of all liens, claims,
charges or encumbrances. The Stockholders of OTI shall be issued a total of
1,800,000 Exchange Shares and the Stockholders of Cadogan shall be issued a
total of 6,275,000 Exchange Shares. The number of Exchange Shares to be issued
to each Stockholder of OTI shall be based on each Stockholder's proportionate
percentage ownership of OTI, which for purposes hereof shall be equal to the
product of the Stockholder's percentage ownership of OTI multiplied by
1,800,000. The number of Exchange Shares to be issued to each Stockholder of
Cadogan shall be based on each Stockholder's proportionate percentage ownership
of Cadogan, which for purposes hereof shall be equal to the product of the
Stockholder's percentage ownership of Cadogan multiplied by 6,275,000
SECTION 1.3 DELIVERY OF SHARES. Subject to the terms and conditions
hereof, at the Closing, (a) the Stockholders shall transfer to the Purchaser the
Shares by delivering the stock certificates evidencing the Shares, accompanied
by duly endorsed stock powers, with signatures guaranteed, in form and substance
satisfactory to the Purchaser permitting the transfer of the Shares to the
Purchaser; and (b) the Purchaser shall deliver to each Stockholder stock
certificate(s) registered in the name of such Stockholder representing the
Exchange Shares issued to such Stockholder.
SECTION 1.4 SUPPLEMENTAL ACTION. If, at any time after the Closing
Date, the Stockholders or the Purchaser shall determine that any further
conveyances, agreements, documents, instruments, and assurances or any further
action is necessary or desirable to carry out the provisions of this Article 1,
the Stockholders or the Purchaser, as the case may be, shall execute and deliver
any and all proper conveyances, agreements, documents, instruments, and
assurances and perform all necessary or proper acts to carry out the provisions
of this Article 1.
ARTICLE 2.
CLOSING; CLOSING DATE
SECTION 2.1. The exchange of the Shares for the Exchange Shares as
contemplated hereby (the "Closing") shall take place at 10:00 a.m. on the
effective date of the Plan of Reorganization, but in no event later than June
1st, 2004, at the offices of the Purchaser (or such other time or date as the
parties hereto may mutually agree in writing). The date upon which the Closing
occurs is herein called the "Closing Date."
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ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS, OTI, AND
POINTE
OTI represents and warrants to the Cadogan Stockholders and to the
Purchaser as follows:
SECTION 3.1A DUE INCORPORATION AND QUALIFICATION. OTI is duly
incorporated, validly existing and in good standing and has all requisite power
and authority to own, lease and operate its assets, properties and business and
to conduct its business operations as now being and as heretofore conducted.
SECTION 3.2A CAPITALIZATION. The OTI Shares are validly issued, fully
paid, and non-assessable. Except for the Transactions contemplated hereby, and
except as set forth on SCHEDULE 3.2A, to its actual knowledge, there are no
outstanding options, warrants, subscriptions, calls, rights (including
preemptive rights), commitments, conversion rights, plans, or other agreements
of any character obligating OTI to authorize, issue, deliver, sell, or redeem
any shares of its capital stock or any securities convertible into or evidencing
the right to purchase any shares of such stock.
SECTION 3.3A FINANCIAL STATEMENTS. Attached as SCHEDULE 3.3A are the
Balance Sheets of OTI as of November 30, 2003, December 31, 2003, January 31,
2004, and February 13, 2004, and OTI's Cash Receipts and Disbursements Schedule
for the three months ended January 31, 2004, for each of the three individual
months therein, and for the period from February 1, 2004, through and including
February 13, 2004, which financial statements fairly and accurately present the
financial condition and the expenses, assets, liabilities, and changes in
stockholders' equity of OTI as of the respective dates of, and for the periods
referred to in, such financial statements, all in accordance with generally
accepted accounting principles of the United States of America, consistent with
the past practices of OTI (except, in the case of interim financial statements,
for the absence of notes and being subject to year-end adjustments, none of
which, as of the date hereof, would be material in nature or effect). Except as
set forth in SCHEDULE 3.3A, as of the Closing, OPL does not have any material
liabilities except (a) as reflected on the financial statements attached hereto
and (b) current liabilities incurred in the ordinary course of business since
the date thereof, none of which liabilities contemplated by this clause (b),
individually or in the aggregate, would have a material adverse effect on OPL.
SECTION 3.4A FULL DISCLOSURE. No representation or warranty of OTI
contained in this Agreement contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements made in the context in which made, not false or misleading.
Pointe represents and warrants to the OTI Stockholders and to the
Purchaser as follows:
SECTION 3.5B DUE INCORPORATION AND QUALIFICATION OF CADOGAN. Cadogan is
duly incorporated, validly existing and in good standing and has all requisite
power and has authority to own, lease and operate its assets, properties and
business as now being and as heretofore conducted.
SECTION 3.6B CAPITALIZATION OF CADOGAN. The Cadogan Shares are validly
issued, fully paid, and non-assessable. There are no outstanding options,
warrants, subscriptions, calls, rights (including preemptive rights),
commitments, conversion rights, plans, or other agreements of any
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character obligating Cadogan to authorize, issue, deliver, sell, or redeem any
shares of its capital stock or any securities convertible into or evidencing the
right to purchase any shares of such stock.
SECTION 3.7B FINANCIAL STATEMENTS OF CADOGAN. Attached as SCHEDULE 3.7B
are the financial statements of Cadogan as at December 31, 2003, and for the
year then ended, which financial statements fairly and accurately present the
financial condition and the results of operations, income, expenses, assets,
liabilities, and cash flows of Cadogan as of the respective dates of, and for
the periods referred to in, such financial statements, all in accordance with
generally accepted accounting principles of the country of domicile, consistent
with the past practices of Cadogan (except, in the case of interim financial
statements, for the absence of notes and being subject to year-end adjustments,
none of which, as of the date hereof, would be material in nature or effect).
Except as set forth in SCHEDULE 3.7B, as of the Closing, Cadogan does not have
any material liabilities except (a) as reflected on the financial statements
attached hereto and (b) current liabilities incurred in the ordinary course of
business since the date thereof, none of which liabilities contemplated by this
clause (b), individually or in the aggregate, would have a material adverse
effect on Cadogan.
SECTION 3.8B DUE INCORPORATION AND QUALIFICATION OF OPL. OPL is duly
incorporated, validly existing and in good standing and has all requisite power
and has authority to own, lease and operate its assets, properties and business
and to conduct the Business as now being and as heretofore conducted.
SECTION 3.9B CAPITALIZATION OF OPL. The issued and outstanding shares
of common stock of OPL, all of which are owned of record and beneficially by
Cadogan, are validly issued, fully paid, and non-assessable. The 1,400,000
issued and outstanding shares of preferred stock of OPL, none of which is owned
of record or beneficially by Cadogan, are validly issued, fully paid, and
non-assessable and have certain cumulative dividend rights set forth on SCHEDULE
3.9B. Except as set forth on Schedule 3.9b, to Pointe's actual knowledge, there
are no outstanding options, warrants, subscriptions, calls, rights (including
preemptive rights), commitments, conversion rights, plans, or other agreements
of any character obligating OPL to authorize, issue, deliver, sell, or redeem
any shares of its respective capital stock or any securities convertible into or
evidencing the right to purchase any shares of such stock.
SECTION 3.10B FINANCIAL STATEMENTS OF OPL. Attached as (1) SCHEDULE
3.10B are the financial statements of OPL as at February 28, 2003, and for the
year then ended, and the audit report thereon of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Chartered Accountants (S.A.) (the "Audited Statements"), and (2) SCHEDULE 3.7B
are certain internally prepared, interim, consolidating financial statements of
OPL as at December 31, 2003, and for the ten months then ended (the "Interim
Statements" and, together with the Audited Statements, the "financial
statements"). The financial statements fairly and accurately present the
financial condition and the results of operations, income, expenses, assets,
liabilities, changes in shareholders' equity, and cash flows of OPL as of the
respective dates of, and for the periods referred to in, such financial
statements, all in accordance with generally accepted accounting principles of
the country of domicile, consistent with the past practices of OPL (except, in
the case of the Interim Statements, for the absence of notes and being subject
to year-end adjustments, none of which, as of the date hereof, would be material
in nature or effect). Except as set forth in SCHEDULE 3.10B and in SCHEDULE
3.7B, as relevant, as of the Closing, OPL does not have any material liabilities
except (a) as reflected on the financial statements attached hereto and (b)
current liabilities incurred in the ordinary course of business since the date
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thereof, none of which liabilities contemplated by this clause (b), individually
or in the aggregate, would have a material adverse effect on OPL.
SECTION 3.11B FULL DISCLOSURE. No representation or warranty of Pointe
contained in this Agreement contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements made in the context in which made, not false or misleading.
The Stockholders, severally but not jointly, represent and warrant to
the Purchaser as follows:
SECTION 3.12C AUTHORITY TO EXECUTE AND PERFORM AGREEMENTS. Each
Stockholder has full power and capacity to execute and deliver this Agreement
and any other agreement or instrument contemplated by this Agreement (such other
agreements and instruments are hereinafter collectively referred to as the
"Transaction Documents") to consummate the transactions contemplated hereby and
thereby (collectively, the "Transactions"). This Agreement has been duly
executed and delivered and is the valid and binding obligation of each
Stockholder enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect which affect
creditors' rights generally and by general principles of equity regardless of
whether such enforceability is considered in a proceeding in equity or at law.
The execution and delivery by the Stockholders of this Agreement and the
Transaction Documents, the consummation of the Transactions by the Stockholders
and the performance by the Stockholders of this Agreement and each of the
Transaction Documents in accordance with their respective terms and conditions
will not require the approval, consent of, waiver, order or authorization of,
notification to, or registration, declaration or filing with, any federal,
state, county, local or other governmental or regulatory body or the approval or
consent of any other person.
SECTION 3.13C OWNERSHIP OF THE SHARES. (a) Each Stockholder owns its
respective Shares, both legally and beneficially, free and clear of any and all
liens, charges or encumbrances of any kind or nature whatsoever except for
restrictions imposed by Federal and state securities laws; (b) no Stockholder is
bound by or subject to any voting trust arrangement, proxy, voting agreement,
shareholder agreement, purchase agreement or other agreement or understanding
(i) granting any option, warrant, or other right to purchase all or any of the
Shares to any person, (ii) restricting the right of such Stockholder to sell or
convey the Shares, or (iii) otherwise restricting any rights of such Stockholder
with respect to the Shares (including restrictions as to the voting or
disposition of the Shares); (c) each Stockholder has the absolute and
unrestricted right, power and capacity to sell, assign and transfer the Shares;
and (d) upon transfer to the Purchaser of the Shares hereunder, the Purchaser
will acquire good and valid title to the Shares, free and clear of any liens,
charges or encumbrances except for restrictions imposed by Federal and state
securities laws.
SECTION 3.14C STOCK RESTRICTIONS. Each Stockholder acknowledges and
understands that: (a) the Exchange Shares shall not be registered under either
United States federal or state securities laws or other securities laws of any
other jurisdiction, but are expected to be issued under and in reliance upon
exemptions from registration provided by Section 4(2) and other provisions of
the Securities Act and the regulations promulgated thereunder; (b) while the
Purchaser may undertake to register certain of the Purchaser's Common Stock for
public sale in the future, it has made no decision or commitment to do so, has
no present intention either to do so or to consider such a
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registration, and, in any event, except in respect of the rights set forth in
that certain Registration Rights Agreement (the "Registration Rights Agreement")
attached hereto as SCHEDULE 5.3, is under no obligation to do so with respect to
the Exchange Shares; (c) if in fact the Purchaser undertakes to register any of
its the Purchaser's Common Stock for public sale in the future, there would be
no assurance that it would be successful in causing such registration to occur;
(d) an exemption from registration with respect to the Exchange Shares may not
be available under the Securities Act or may not permit such Stockholder to
transfer the Exchange Shares in the amounts or at the times desired by such
Stockholder; and (e) as a result of the foregoing, the Exchange Shares may be
required to be held by such Stockholder indefinitely. Each Stockholder further
acknowledges that each certificate evidencing Exchange Shares shall contain a
legend identical to or substantially to the effect of the following:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT
BE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT COVERING THE SHARES OR OF AN OPINION OF COUNSEL TO THE
CORPORATION THAT SUCH TRANSFER WILL NOT REQUIRE REGISTRATION OF SUCH
SHARES UNDER THE ACT.
SECTION 3.15C PURCHASE FOR INVESTMENT, ETC. Each Stockholder represents
and warrants that: (a) it is acquiring and will acquire the Exchange Shares for
its own account for investment only and not with a view to, or for sale in
connection with, a distribution within the meaning of the Securities Act; (b) it
has no present intention of selling or otherwise disposing of any portion of the
Exchange Shares; (c) it has had access to all information regarding the
Purchaser and its present and prospective business, assets, liabilities and
financial condition and the backgrounds of the principals of the Purchaser, as
it has deemed material to making the decision to acquire the Exchange Shares and
has been afforded the opportunity to ask questions of and receive answers from
senior management of the Purchaser concerning present and prospective business
prospects of the Purchaser; (d) it has fully considered this information in
valuing the Purchaser and assessing the merits of the Transactions and is
satisfied with the consideration it is receiving hereunder for the Shares; (e)
it recognizes that there may be no future market for resale of the Exchange
Shares; (f) it or its investor representative has knowledge in business and
financial matters and accordingly is capable of evaluating and has evaluated the
merits of the Transactions; (g) it has made the determination to enter into the
Transactions based upon his or its own independent evaluation and assessment of
the value of the Purchaser and its present and prospective business prospects
and has not relied on, or been induced to enter into this Agreement on account
of, any representation or warranty of any kind or nature, whether oral or
written, express or implied, except for such representations and warranties
specifically set forth in this Agreement; PROVIDED, HOWEVER, that nothing
contained herein to the contrary, including this subsection, shall affect any
rights that any Stockholder may have under the Subscription Agreement for the
initial purchase of the Shares; and (h) it is financially capable of bearing a
total loss of its investment in the Exchange Shares.
SECTION 3.16C FINDERS AND INVESTMENT BANKERS. No Stockholder has
employed any broker or finder or incurred any liability for any brokerage fees,
commissions, or finders' fees or incurred any liability for any brokerage fees,
commissions, or finders' fees in connection with the Transactions contemplated
hereby. Any compensation to be tendered to any third party in connection with
the Transactions contemplated hereby shall not be deemed to be the
responsibility of any of the Stockholders.
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SECTION 3.17C FULL DISCLOSURE. No representation or warranty of any
Stockholder contained in this Agreement contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements made in the context in which made, not false or
misleading.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to each Stockholder as follows:
SECTION 4.1 DUE INCORPORATION AND QUALIFICATION. The Purchaser is a
corporation duly incorporated, validly existing under the laws of Nevada, and
operating under the protection of Chapter 11 of the federal Bankruptcy laws. The
Purchaser has all requisite power and authority to own, lease and operate its
assets, properties and business and to conduct its business as now being
conducted. The Purchaser has filed a Plan of Reorganization with the Bankruptcy
Court. The Purchaser is not qualified to do business as a foreign corporation in
any jurisdiction, and is not doing business in any jurisdiction, where
qualification is required or the failure to qualify would have a material
adverse effect on the business or operations of the Purchaser.
SECTION 4.2 AUTHORITY TO EXECUTE AND PERFORM AGREEMENTS. The Purchaser
has full authority to execute and deliver this Agreement and the other
Transaction Documents, and the consummation of the Transactions will be duly
authorized upon the confirmation of the Plan of Reorganization by all necessary
corporate action of the Purchaser. This Agreement has been duly executed and
delivered and is the valid and binding obligation of the Purchaser, enforceable
against it in accordance with its terms, subject to the confirmation of the Plan
of Reorganization.
SECTION 4.3 THE PLAN OF REORGANIZATION. Attached hereto as SCHEDULE 4.3
is a true and correct copy of the Plan of Reorganization filed with the
Bankruptcy Court.
SECTION 4.4 CAPITALIZATION. (a) The total authorized capital stock and
the number of shares to be issued upon confirmation of the Plan of
Reorganization of the Purchaser is as described therein. As of the Closing,
there will be no other authorized or outstanding options, warrants,
subscriptions, calls, rights (including preemptive rights and rights to demand
registration under the Securities Act), commitments, conversion rights, plans or
other agreements of any character obligating the Purchaser to authorize, issue,
deliver, sell or redeem any shares of its capital stock or any securities
convertible into or evidencing the right to purchase any shares of such stock
upon confirmation of the Plan of Reorganization.
(b) The Exchange Shares to be issued pursuant to this Agreement, in
accordance with the terms of this Agreement, will be validly issued, fully paid,
and nonassessable.
SECTION 4.5 REAL AND PERSONAL PROPERTY -- LEASED TO THE PURCHASER. The
Purchaser is not a party to or otherwise bound by any lease of real or personal
property.
SECTION 4.6 COMPLIANCE WITH LAWS. The Purchaser is not in default under
or in violation of any applicable order, judgment, injunction, award or decree,
of any material applicable federal, state, or local statute, law, ordinance,
rule or regulation including, without limitation, ERISA or the provisions of any
franchise or license, or of any other material requirement of any governmental,
regulatory, administrative or industry body, court or arbitrator applicable to
the Purchaser.
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The Purchaser is not in default under or in violation of any provisions of its
Articles of Incorporation or its by-laws, or any material instrument, contract,
mortgage, indebtedness, indenture or other agreement to which the Purchaser is a
party or by or to which the Purchaser or any of its assets or properties may be
bound or subject.
SECTION 4.7 NO CONFLICTS. The execution, delivery and performance of
the Transaction Documents by the Purchaser and the consummation by the Purchaser
of the Transactions will not (a) result in a violation of the Purchaser's
Articles of Incorporation or By-laws, (b) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, indenture or instrument to which the
Purchaser is a party, or (c) result in a violation of any law, rule, regulation,
by-law, directive, order, judgment or decree (including federal, state,
provincial and municipal securities laws and regulations) applicable to the
Purchaser or by which any of its property or assets is bound or affected, except
to the extent that matters within clauses (b) and (c), immediately above, would
not have a material adverse effect on the business properties, assets,
operations, liabilities, financial condition or prospects of the Purchaser, or
the ability of the Purchaser to perform this Agreement and the other Transaction
Documents.
SECTION 4.8 LABOR AGREEMENTS, EMPLOYEE BENEFIT PLANS AND EMPLOYMENT
AGREEMENTS. The Purchaser is not a party to (a) any union collective bargaining,
works council, or similar agreement or arrangement, (b) any qualified or
non-qualified pension, retirement, severance, profit-sharing, deferred
compensation, bonus, stock option, stock purchase, retainer, consulting, health,
welfare or incentive plan or agreement, oral or written, whether legally binding
or not, (c) any plan or policy providing for employee benefits, including but
not limited to vacation, disability, sick leave, medical, hospitalization, life
and other insurance plans, and related benefits, or (d) any employment
agreement. The Purchaser is not presently a party to any "employee leasing"
agreement or arrangement, nor does the Purchaser have any liability in respect
of any such agreement or arrangement to which it was, at any time, a party, but
which is no longer in effect.
SECTION 4.9 STOCK RESTRICTIONS. The Purchaser acknowledges and
understands that the Shares shall not be registered under either United States
federal or state securities laws or other securities laws of any other
jurisdiction, but are expected to be transferred to the Purchaser under and in
reliance upon exemptions from registration provided by Section 4(2) and other
provisions of the Securities Act and the rules and regulations promulgated
thereunder. The Purchaser further acknowledges that the certificate(s)
evidencing its ownership of shares in each of OTI and Cadogan following the
acquisition of the Shares in accordance herewith, shall contain a legend
identical to or substantially to the effect of the following:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT
BE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT COVERING THE SHARES OR OF AN OPINION OF COUNSEL TO THE
CORPORATION THAT SUCH TRANSFER WILL NOT REQUIRE REGISTRATION OF SUCH
SHARES UNDER THE ACT.
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SECTION 4.10 PURCHASE FOR INVESTMENT. The Purchaser: (a) is acquiring
and will acquire the Shares for its own account for investment only and not with
a view to, or for sale in connection with, a distribution within the meaning of
the Securities Act; (b) has no present intention of selling or otherwise
disposing of any portion of the Shares; (c) has had access to all information
regarding each of OTI and Cadogan and its present and prospective business,
assets, liabilities and financial condition and the backgrounds of its
principals, as it has deemed material to making the decision to acquire the
Shares and has been afforded the opportunity to ask questions of and receive
answers from senior management of each of OTI and Cadogan concerning present and
prospective business prospects of each of OTI and Cadogan; (d) has fully
considered this information in valuing each of OTI and Cadogan and assessing the
merits of the Transaction and is satisfied with the consideration it is
receiving hereunder for the Exchange Shares; (e) has knowledge in business and
financial matters and accordingly is capable of evaluating and has evaluated the
merits of the Transactions contemplated hereby, and (f) has made the
determination to enter into the Transactions based upon its own independent
evaluation and assessment of the value of each of OTI and Cadogan and its
present and prospective business prospects and has not relied on, or been
induced to enter into this Agreement on account of, any representation or
warranty of any kind or nature, whether oral or written, express or implied,
except for such representations and warranties of Stockholder as are
specifically set forth in this Agreement.
SECTION 4.11 OWNERSHIP OF THE EXCHANGE SHARES. (a) The Purchaser is not
bound by or subject to any voting trust arrangement, proxy, voting agreement,
shareholder agreement, purchase agreement or other agreement or understanding,
except as contemplated hereunder, (i) granting any option, warrant or other
right to purchase all or any of the Exchange Shares to any person, (ii)
restricting the right of the Purchaser to sell or convey the Exchange Shares, or
(iii) otherwise restricting any rights of the Purchaser with respect to the
Exchange Shares (including restrictions as to the voting or disposition of the
Exchange Shares); (b) the Purchaser has the absolute and unrestricted right,
power and capacity to issue and sell the Exchange Shares, and (c) upon issuance
to the Stockholders of the Exchange Shares hereunder, the Stockholders will
acquire good and valid title to the Exchange Shares, free and clear of any
liens, charges or encumbrances except as contemplated hereunder.
SECTION 4.12 FINDERS AND INVESTMENT BANKERS. Except as disclosed in the
Disclosure Statement and Plan of Reorganization, the Purchaser has not employed
any broker or finder or incurred any liability for any brokerage fees,
commissions, or finders' fees or incurred any liability for any brokerage fees,
commissions, or finders' fees in connection with the Transactions contemplated
hereby.
SECTION 4.13 CERTAIN TAX ISSUES. The Purchaser has not incurred any
material Federal or state tax obligations that are not the subject of or
disclosed in the Plan of Reorganization.
SECTION 4.14 FULL DISCLOSURE. All documents and other papers delivered
by or on behalf of the Purchaser in connection with this Agreement and the
Transactions, including the Plan, are, to the best of the Purchaser's knowledge,
authentic, and true and complete in all material respects. No representation or
warranty of the Purchaser contained in this Agreement, and no document or other
paper furnished by or on behalf of the Purchaser pursuant to this Agreement or
-9-
in connection with the Transactions, including the Plan, contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements made in the context in which
made, not false or misleading. To the Purchaser's best knowledge, there is no
fact that the Purchaser has not disclosed to the Stockholders that materially
adversely affects, or so far as the Purchaser can now foresee, will materially
adversely affect, the assets, properties, business, operations or condition
(financial or otherwise) of the Purchaser or the ability of the Purchaser to
perform this Agreement.
ARTICLE 5.
COVENANTS AND AGREEMENTS OF THE PARTIES
SECTION 5.1 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Any legal
action, suit or proceeding arising out of or relating to this Agreement or the
Transactions contemplated hereby shall be instituted in any state or federal
court of competent jurisdiction located in Los Angeles County, California, and
each party agrees not to assert, by way of motion, as a defense, or otherwise,
in any such action, suit or proceeding, any claim that it is not subject
personally to the jurisdiction of such court, that its property is exempt or
immune from attachment or execution, that the action, suit or proceeding is
brought in an inconvenient forum, that the venue of the action, suit or
proceeding is improper or that this Agreement or the subject matter hereof may
not be enforced in or by such court. Each party further irrevocably submits to
the exclusive jurisdiction of any such court in any such action, suit, or
proceeding.
SECTION 5.2 EXPENSES. Each of the parties to this Agreement shall,
except as otherwise specifically provided in Article 8, bear its respective
expenses incurred in connection with the preparation, execution and performance
of this Agreement and the Transactions contemplated hereby, including without
limitation, all fees and expenses of agents, representatives, counsel and
accountants.
SECTION 5.3 REGISTRATION RIGHTS AGREEMENT. The Purchaser shall execute
and deliver the Registration Rights Agreement, in the form attached hereto as
SCHEDULE 5.3, to (i) those Stockholders of OTI who are parties to an analogous
registration rights agreement with OTI and (ii) any other Stockholders of OTI
who received OTI Shares from any Stockholder of OTI referenced in subsection
(i), above.
ARTICLE 6.
CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The obligations of the Purchaser to consummate the Transactions
provided for in this Agreement shall be subject to the satisfaction of each of
the following conditions on or before the Closing Date, subject to the right of
the Purchaser to waive any one or more of such conditions:
SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. The
representations and warranties of the Stockholders contained in this Agreement,
including the Schedules hereto, and in the certificates to be delivered to the
Purchaser pursuant hereto and in connection herewith shall be true and correct
in all material respects (except to the extent any such representations and
warranties is already qualified as to materiality in Article 3, in which case,
such representations and warranties shall be true and correct without further
-10-
qualifications as to materiality under this Section 6.1) on the date hereof and
on the Closing Date as though such representations and warranties were made on
the Closing Date, except for representations and warranties made as of a
specific date which shall be true and correct on the Closing Date as of such
specific date.
SECTION 6.2 PERFORMANCE OF THIS AGREEMENT. The Stockholders shall have
duly performed or complied in all material respects with all of the obligations
to be performed or complied with by him under the terms of this Agreement on or
prior to the Closing Date.
SECTION 6.3 SATISFACTORY BUSINESS REVIEW. The Purchaser has satisfied
itself, after receipt and consideration of the Schedules and after the Purchaser
and its representatives conducted a thorough review of each of the Business and
of OTI, that none of the information revealed thereby has resulted in, or in the
opinion of the Purchaser, may result in, a material adverse change in the
assets, properties, business or condition (financial or otherwise) of each of
OTI and Cadogan.
SECTION 6.4 THIRD-PARTY CONSENTS. All consents, permits and approvals
from parties to contracts or other agreements with each of OTI and Cadogan that
may be required in connection with the performance by the Stockholders of their
obligations under this Agreement or the continuance of such contracts or other
agreements after the Closing shall have been obtained.
SECTION 6.5 CHARTER DOCUMENTS. The Purchaser shall have received a copy
of the Certificates of Incorporation, certified as true and complete as of a
recent date by the appropriate governmental authority or jurisdiction of
incorporation for OTI and Cadogan.
SECTION 6.6 BY-LAWS. The Purchaser shall have received a copy of the
By-Laws, or equivalent, as in effect on the date of the Closing for OTI and
Cadogan.
SECTION 6.7 GOOD STANDING. The Purchaser shall have received
certificates of good standing, existence or its equivalent with respect to each
of OTI and Cadogan, certified as of a recent date by the appropriate
governmental authority of the Company's jurisdiction of incorporation, and each
other jurisdiction in which the failure to so qualify and be in good standing
would have a material adverse effect on the Company and its Business.
SECTION 6.8 LITIGATION. At the Closing Date, no suit, action or other
proceeding shall be pending or threatened before any court or governmental
agency in which it is sought (i) to restrain, prohibit, invalidate or set aside
(in whole or in part) the Transactions contemplated by this Agreement, (ii) to
affect the right of the Company to operate or control, after the Closing Date,
its assets, properties and businesses (in whole or in part), or (iii) to obtain
damages or a discovery order in connection with this Agreement or the
consummation of the Transactions contemplated hereby.
SECTION 6.9 CONFIRMATION OF PLAN OF REORGANIZATION. The Bankruptcy
Court's order confirming the Plan of Reorganization of the Purchaser shall have
become a final, nonappealable order.
ARTICLE 7.
CONDITIONS TO THE STOCKHOLDERS' OBLIGATIONS
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The obligations of the Stockholders to consummate the Transactions
provided for in this Agreement shall be subject to the satisfaction of each of
the following conditions on or before the Closing Date, subject to the right of
the Stockholders to waive any one or more of such conditions:
SECTION 7.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
representations and warranties of the Purchaser contained in this Agreement,
including the Schedules hereto, and in the certificates to be delivered to the
Stockholders pursuant hereto and in connection herewith shall be true and
correct in all material respects (except to the extent any such representations
and warranties is already qualified as to materiality in Article 4, in which
case, such representations and warranties shall be true and correct without
further qualifications as to materiality under this Section 7.1) on the date
hereof and on the Closing Date as though such representations and warranties
were made on the Closing Date except for representation and warranties made as
of a specific date which shall be true and correct on the Closing Date as of
such specific date.
SECTION 7.2 PERFORMANCE OF THIS AGREEMENT. The Purchaser shall have
duly performed or complied in all material respects with all of the obligations
to be performed or complied with by it under the terms of this Agreement on or
prior to the Closing Date.
SECTION 7.3 CERTIFIED RESOLUTIONS. The Purchaser shall have delivered
to the Stockholders copies of board resolutions approving and adopting this
Agreement and the other Transaction Documents and authorizing the Transactions,
certified as true and correct by the Secretary of the Purchaser.
SECTION 7.4 THIRD-PARTY CONSENTS. All consents, permits and approvals
from parties to contracts or other agreements with the Purchaser that may be
required in connection with the performance by the Purchaser of its obligations
under this Agreement or the continuance of such contracts or other agreements
after the Closing shall have been obtained.
SECTION 7.5 CHARTER DOCUMENTS. The Stockholders shall have received a
copy of the Articles of Incorporation, certified as true and complete as of a
recent date by the appropriate governmental authority or jurisdiction of
incorporation for the Purchaser.
SECTION 7.6 CONFIRMATION OF PLAN OF REORGANIZATION. The Bankruptcy
Court's order confirming the Plan of Reorganization of the Purchaser shall have
become a final, nonappealable order.
SECTION 7.7 REGISTRATION RIGHTS AGREEMENT. The Registration Rights
Agreement, in the form attached hereto as SCHEDULE 5.3, shall have been executed
and delivered by each of (i) those Stockholders of OTI who are parties to an
analogous registration rights agreement with OTI, (ii) any other Stockholders of
OTI who received OTI Shares from any Stockholder of OTI referenced in subsection
(i), above, and (iii) the Purchaser,.
ARTICLE 8.
INDEMNIFICATION; SURVIVAL
SECTION 8.1 OBLIGATION OF THE STOCKHOLDERS TO INDEMNIFY. Each
Stockholder, severally but not jointly, agrees to indemnify, defend and hold
harmless the Purchaser as of the date of this Agreement and its respective
directors, officers, legal representatives, successors, and assigns, from and
against any and all losses, liabilities, damages, deficiencies, actions, suits,
-12-
proceedings, claims, demands, orders, assessments, amounts paid in settlement,
fines, and reasonable costs and expenses (including interest, penalties and
reasonable attorneys' fees and disbursements and reasonable investigative costs)
(collectively, "Losses") based upon, arising out of or otherwise in respect of
(i) any breach in any of the representations and warranties of such Stockholder
set forth in Sections 3.12c through and including 3.17c hereof and (ii) any
breach or non-fulfillment of any of the covenants or agreements of such
Stockholder contained in this Agreement.
SECTION 8.2 OBLIGATION OF THE PURCHASER TO INDEMNIFY. The Purchaser
agrees to indemnify, defend and hold harmless the Stockholders, and, as to the
individual Stockholders, their respective heirs, legal representatives,
successors, and assigns, and as to the entity Stockholder, its equity holders as
of the date of this Agreement and their respective directors, officers, heirs,
legal representatives, successors, and assigns, from and against any and all
Losses based upon, arising out of or otherwise in respect of (i) any breach in
any of the representations and warranties of the Purchaser set forth in Article
4 hereof, (ii) any breach in any of the representations and warranties of the
Purchaser set forth in any other provision hereof and (iii) any breach or
nonfulfillment of any covenant or agreement of the Purchaser contained in this
Agreement.
SECTION 8.3 OBLIGATION OF OTI TO INDEMNIFY. OTI agrees to indemnify,
defend and hold harmless the Cadogan Stockholders and the Purchaser, and, as to
any individual Cadogan Stockholders, their respective heirs, legal
representatives, successors, and assigns, and as to the Cadogan entity
Stockholder, its equity holders as of the date of this Agreement and their
respective directors, officers, heirs, legal representatives, successors, and
assigns, from and against any and all Losses based upon, arising out of or
otherwise in respect of (i) any breach in any of the representations and
warranties of OTI set forth in Sections 3.1a through and including 3.4a hereof
and (ii) any breach or nonfulfillment of any covenant or agreement of OTI
contained in this Agreement.
SECTION 8.4 OBLIGATION OF POINTE TO INDEMNIFY. Pointe agrees to
indemnify, defend and hold harmless the OTI Stockholders and the Purchaser, and,
as to any individual OTI Stockholders, their respective heirs, legal
representatives, successors, and assigns, and as to any OTI entity Stockholders,
their equity holders as of the date of this Agreement and their respective
directors, officers, heirs, legal representatives, successors, and assigns, from
and against any and all Losses based upon, arising out of or otherwise in
respect of (i) any breach in any of the representations and warranties of Pointe
set forth in Sections 3.5b through and including 3.11b hereof and (ii) any
breach or nonfulfillment of any covenant or agreement of Pointe contained in
this Agreement.
SECTION 8.5 CLAIMS NOTICE. Each party hereto (an "Indemnified Party")
shall, promptly upon becoming aware of any event or circumstance (an
"Indemnifiable Event"), which, in his or its reasonable judgment, may result in
a Loss for which the Indemnified Party could assert a right of indemnification
against any other party (or parties) hereto (the "Indemnifying Party") under
this Article 8, give notice thereof (the "Claims Notice") to the Indemnifying
Party (but the obligations of the Indemnifying Party under this Article 8 shall
not be impaired by the Indemnified Party's failure to give such notice, except
to the extent that said failure actually prejudices the rights of the
Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in
reasonable detail, shall indicate whether the Indemnifiable Event involves a
"Third-Party Claim" (defined below), and shall indicate the amount (estimated,
if necessary) of the Loss that has been or may be suffered by the Indemnified
Party. In such event, the Indemnifying Party shall, within fifteen (15) business
-13-
days after receipt of the Claims Notice, give notice to the Indemnified Party of
whether he or it intends to dispute the claim described in the Claims Notice
(the "Response Notice"). If the Indemnifying Party timely disputes the Claims
Notice as provided above, the Indemnified Party shall, for a period of not more
than fifteen (15) business days after receipt of the Response Notice (or less,
if the nature of the Indemnifiable Event so requires), seek out a negotiated
settlement of the dispute with the Indemnifying Party and shall refrain during
that period from commencing any judicial proceeding or other action to enforce
this Article 8. If, despite their good faith negotiations, the parties are
unable to resolve the dispute within the aforesaid period (or if the
Indemnifying Party fails to timely give the Response Notice), the Indemnified
Party shall be free to exercise all rights and remedies available to him or it
hereunder, at law in equity or otherwise to enforce his or its rights under this
Article 8. As used herein, "Third Party Claim" means any demand, claim or
circumstance which, with the lapse of time or otherwise, would give rise to a
claim or the commencement (or threatened commencement) of any action, proceeding
or investigation against the Indemnified Party by any other person.
SECTION 8.6 OPPORTUNITY TO DEFEND AGAINST THIRD PARTY CLAIMS. If the
Claims Notice relates to a Third-Party Claim, the Indemnifying Party may elect
to compromise or defend, at its own expense and by its own counsel, such
Third-Party Claim. If the Indemnifying Party elects to compromise or defend such
Third-Party Claim, it shall within 30 business days (or sooner, if the nature of
the Third-Party Claim so requires) after his or its receipt of the Claims
Notice, notify the Indemnified Party of its intent to do so, and the Indemnified
Party shall cooperate, at the expense of the Indemnifying Party, in the
compromise of, or defense against, such Third-Party Claim. If the Indemnifying
Party elects not to compromise or defend such Third-Party claim, fails to notify
the Indemnified Party of its election as herein provided or contests its
obligation to indemnify under this Agreement, the Indemnified Party may pay,
compromise or defend such Third-Party Claim. Notwithstanding the foregoing,
neither the Indemnifying Party nor the Indemnified Party may settle or
compromise any claim over the objection of the other; PROVIDED, HOWEVER, that
consent to settlement or compromise shall not be unreasonably withheld. In any
event, the Indemnified Party and the Indemnifying Party may participate, at
their own expense, in the defense of such Third-Party Claim. If the Indemnifying
Party chooses to defend any claim, the Indemnified Party shall make available to
the Indemnifying Party any books, records or other documents within its control
that are necessary or appropriate for such defense. The Indemnifying Party shall
be subrogated to all rights and remedies of the Indemnified Party to the extent
of any indemnification provided by the Indemnifying Party to the Indemnified
Party.
SECTION 8.7 LIMITATION ON INDEMNIFICATION. Indemnified Parties
hereunder shall be entitled to receive indemnification under this Article 8 only
if and to the extent the aggregate amount of indemnification due to such
Indemnified Parties hereunder exceeds $50,000.
SECTION 8.8 SURVIVAL. Notwithstanding the investigations by the parties
hereto of each other's affairs, and notwithstanding any knowledge of facts
determined or determinable by such parties pursuant to such investigation, each
of the Stockholders and the Purchaser shall have the right to rely fully upon
the representations, warranties, covenants, and agreements of the other parties
contained in this Agreement. The representations and warranties of the parties
contained herein shall survive the Closing for the duration of the applicable
statute of limitations. A claim for indemnification hereunder must be asserted
by a party seeking indemnification within the respective period of survival.
-14-
SECTION 8.9 INDEMNIFICATION EXCLUSIVE REMEDY. The parties hereto
acknowledge and confirm that, except in the event of fraud, the indemnification
procedures described in this Article 8 shall be the sole and exclusive remedies
available to them for any breach or non-fulfillment of the representations,
warranties, covenants, agreements, and other provisions of this Agreement.
ARTICLE 9.
TERMINATION
SECTION 9.1 TERMINATION. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing Date:
(a) By mutual consent of all of the Stockholders on the one hand and
the Purchaser on the other hand; or
(b) By all of the Stockholders if any of the conditions set forth in
Article 7 hereof shall have become incapable of fulfillment, and shall not have
been waived by the Stockholders; or
(c) By the Purchaser if any of the conditions set forth in Article 6
hereof shall have become incapable of fulfillment, and shall not have been
waived by the Purchaser; or
(d) By all of the Purchaser or the Stockholders if the Closing has not
occurred on or before June 1st, 2004.
SECTION 9.2 EFFECTS OF TERMINATION. If this Agreement is terminated and
the Transactions contemplated hereby are not consummated as described above,
this Agreement shall become void and of no further force and effect, except for
the provisions of Section 5.2 relating to expenses.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.1 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, three (3) days after the date of deposit in the
mails, as follows:
(i) if to the Stockholders, to:
The addresses and facsimile numbers set forth on Schedule 1
with copies to:
-15-
(which shall not constitute notice)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ + Share LLP ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
And
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ + Co.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: 011-44-207-355-4975
(ii) if to the Purchaser, to:
Cetalon Corporation ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copies to:
(which shall not constitute notice)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇, Neale, Bender, ▇▇▇▇▇▇ + ▇▇▇▇▇ L.L.P.
1801 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
And
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Law Group, A Professional Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(iii) if to OTI, to:
Optron Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
(which shall not constitute notice)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(iv) if to Pointe:
Pointe Capital Limited
c/▇ ▇▇▇▇▇▇▇▇ + Co.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: 011-44-207-355-4975
-16-
with copy to:
(which shall not constitute notice)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ + Co.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: 011-44-207-355-4975
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
SECTION 10.2 ENTIRE AGREEMENT. This Agreement (including the schedules
and exhibits) and the agreements referred to herein and/or executed in
connection with the consummation of the Transactions contemplated herein contain
the entire agreement among the parties with respect to the exchange of the
Shares for the Exchange Shares and the related transactions, and supersedes all
prior agreements, written or oral, with respect thereto; PROVIDED, HOWEVER, that
nothing contained in this Agreement shall affect any rights that any Stockholder
may have under the Subscription Agreement for the initial purchase of the
Shares.
SECTION 10.3 WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES;
PRESERVATION OF REMEDIES. This Agreement may be amended, superseded, canceled,
renewed, or extended, and the terms hereof may be waived, only by a written
instrument signed by the parties or, in the case of a waiver, by the parties
waiving compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof. Nor shall any
waiver on the part of any party of any such right, power or privilege, nor any
single or partial exercise of any such right, power or privilege. The rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies that any party may otherwise have at law or in equity. The rights and
remedies of any party based upon, arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty, covenant or agreement
contained in this Agreement shall in no way be limited by the fact that the act,
omission, occurrence or other state of facts upon which any claim of any such
inaccuracy or breach is based may also be the subject of any other
representation, warranty, covenant or agreement contained in this Agreement (or
in any other agreement between the parties) as to which there is no inaccuracy
or breach.
SECTION 10.4 GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of California, applicable to agreements
made and to be performed entirely within such State (without giving effect to
conflicts of law principles thereof).
SECTION 10.5 BINDING EFFECT; NO ASSIGNMENT; NO THIRD PARTY
BENEFICIARIES. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and legal representatives. Nothing
contained herein is intended or shall be construed as creating third party
beneficiaries to this Agreement. This Agreement is not assignable except by
operation of law.
SECTION 10.6 VARIATIONS IN PRONOUNS. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
-17-
SECTION 10.7 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto.
SECTION 10.8 EXHIBITS AND SCHEDULES. The Exhibits and Schedules are a
part of this Agreement as if fully set forth herein. All references herein to
Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall otherwise
require.
SECTION 10.9 HEADINGS. The headings in this Agreement are for reference
only, and shall not affect the interpretation of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
-18-
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
CETALON CORPORATION
By:/s/ A. ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
-----------------------
A. ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.,
Chief Executive Officer
OPTRON TECHNOLOGIES, INC.
[As to its representations and warranties
set forth in Sections 3.1a, 3.2a, 3.3a, and
3.4a, all of which are made as of the date
hereof, except as the representations and
warranties set forth in Section 3.3a have
been updated through and including February
13, 2004; its indemnification obligations in
Section 8.3; and the miscellaneous
provisions in Article 10 only]
By: /s/ A. ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
-----------------------
A. ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.,
Chief Executive Officer
POINTE CAPITAL LIMITED
[As to its representations and warranties
set forth in Sections 3.5b, 3.6b, 3.7b,
3.8b, 3.9b, 3.10b, and 3.11b; its
indemnification obligations in Section 8.4;
and the miscellaneous provisions in Article
10 only]
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
authorized signatory
[STOCKHOLDER]
By:
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[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
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By:
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[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
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[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
-20-
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
By:
-----------------------
[STOCKHOLDER]
-21-
SCHEDULE 1
Name, Address, Facsimile Number Number of Shares
------------------------------- ----------------
-22-
SCHEDULE 3.2A
EXCEPTION SCHEDULE REGARDING OTI'S SECURITIES
None.
-23-
SCHEDULE 3.3A
[FINANCIAL STATEMENTS OF OTI ATTACHED HERETO]
-24-
SCHEDULE 3.7B
[FINANCIAL STATEMENTS OF CADOGAN AND LISTING OF ANY ADDITIONAL
LIABILITIES OF CADOGAN ATTACHED HERETO]
-25-
SCHEDULE 3.9B
Acquisition Agreement
by and among
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, Optron (Pty) Ltd,
and Nicon Systems (Pty) Ltd
with an effective date of November 1, 2003
-26-
SCHEDULE 3.10B
[FINANCIAL STATEMENTS OF OPL AND LISTING OF ANY
ADDITIONAL LIABILITIES OF OPL ATTACHED HERETO]
-27-
SCHEDULE 4.3
[PLAN OF REORGANIZATION ATTACHED HERETO]
-28-
SCHEDULE 5.3
[REGISTRATION RIGHTS AGREEMENT ATTACHED HERETO]
-29-