EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
IDEAL MEDICAL INC.
AND
OSK ACQUISITION CORP.
AND
OSK CAPITAL III
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the "Agreement")
is made and entered into as of March 14, 2005, by and among OSK CAPITAL III , a
Nevada corporation ("OSK"), OSK ACQUISITION CORP., a Florida corporation
("Merger Sub") and wholly owned subsidiary of OSK, and IDEAL MEDICAL INC.,
D/B/A/ INTEGRATED MEDICAL SOLUTIONS INC., a Texas corporation ("Company").
RECITALS
A. The Boards of Directors of Company, OSK and Merger Sub believe it is in
the best interests of their respective companies and the stockholders
of their respective companies that Company and Merger Sub combine into
a single company through the statutory merger of Merger Sub with and
into Company (the "Merger") and, in furtherance thereof, have approved
the Merger.
B. Pursuant to the Merger, among other things, the outstanding shares of
Company Common Stock ("Company Common Stock"), shall be converted into
the right to receive shares of OSK Common Stock ("OSK Common Stock"),
at the rate set forth herein.
C. Company, OSK and Merger Sub desire to make certain representations and
warranties and other agreements in connection with the Merger.
D. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code"), and to cause the Merger
to qualify as a reorganization under the provisions of Sections 368 of
the Code, so that such exchange will constitute a tax-free share
exchange under the Code.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE 1
THE MERGER
1.1. THE MERGER. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement
including the exchange of shares between the Company, OSK and Merger
Sub, Merger Sub shall be merged with and into OSK, the Company
shareholders shall receive shares of Common Stock of OSK, the Merger
Sub shall receive all the Common Stock of the Company, and the separate
corporate existence of Merger Sub shall cease and OSK shall continue as
the surviving corporation. OSK as the surviving corporation after the
Merger is hereinafter sometimes referred to as the "Surviving
Corporation."
1.2. CLOSING; EFFECTIVE TIME. The closing of the transactions contemplated
hereby (the "Closing") shall take place as soon as practicable after
the satisfaction or waiver of each of the conditions set forth in
Article VI hereof or at such other time as the parties hereto agree
(the "Closing Date"). The Closing shall be held at the offices of
▇▇▇▇▇▇▇▇▇▇▇ Capital Inc. at ▇ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇, or at such other location as the parties hereto agree.
Simultaneously with or as soon as practicable following the Closing,
the parties hereto shall cause the Merger to be consummated by filing
of a Certificate of Merger ("Certificate of Merger") with each
respective parties jurisdiction, in accordance with the relevant
provisions of each respective parties jurisdiction (the time of such
filing being the "Effective Time").
1.3. EFFECT OF THE MERGER. At the Effective Time, the effect of the Merger
shall be as provided in this Agreement, the Certificate of Merger and
the applicable provisions of Florida Law. Without limiting the
generality of the foregoing, and subject thereto, at the Effective
Time, all the property, rights, privileges, powers and franchises of
Company and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Company and Merger Sub shall become
the debts, liabilities and duties of the Surviving Corporation.
1.4. CERTIFICATE OF INCORPORATION; BYLAWS.
1.4.1. At the Effective Time, the Articles of Incorporation of
Company shall be the Articles of Incorporation of the
Surviving Corporation.
1.4.2. The Bylaws of Company, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving
Corporation until thereafter amended.
1.5. DIRECTORS AND OFFICERS. At the Effective Time, the directors of the
Company shall be appointed as the directors of the Surviving
Corporation, in each case until their successors are elected or
appointed and qualified or until their earlier resignation or removal.
The officers of the Company shall be appointed as officers of the
Surviving Corporation, until their respective successors are duly
appointed and qualified or until their earlier resignation or removal.
1.6. EFFECT ON CAPITAL STOCK. By virtue of the Merger and without any action
on the part of Merger Sub, Company or the holders of any of the
following securities:
1.6.1.1. CONVERSION OF COMPANY COMMON STOCK. At the Effective Time, (i)
all of the shares of Company Common Stock issued and
outstanding immediately prior to the Effective Time will be
canceled and extinguished and be converted automatically into
the right to receive an aggregate of twenty million shares of
OSK Common Stock (the "Exchange Ratio") (the "Merger
Consideration"); and (ii) ▇▇▇▇▇▇▇▇▇▇▇ Capital Inc and or it's
nominee will receive 700,000 restricted shares of OSK Common
Stock. Each certificate evidencing shares represented by the
Merger Consideration issued pursuant to this Section 1.6.1
shall bear the following legend (in addition to any legend
required under applicable state securities laws):
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS
MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE
CORPORATION RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF
THESE SECURITIES REASONABLY SATISFACTORY TO THE CORPORATION
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION
IS EXEMPT FROM REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT."
1.6.2. CAPITAL STOCK OF MERGER SUB. At the Effective Time, each share
of common stock, $.01 par value, of Merger Sub ("Merger Sub
Common Stock") issued and outstanding immediately prior to the
Effective Time shall be converted into and exchanged for one
validly issued, fully paid and nonassessable share of common
stock of the Company, and the Company shall be a wholly owned
subsidiary of the OSK. Each stock certificate of Merger Sub
evidencing ownership of any such shares shall continue to
evidence ownership of such shares of capital stock of the
Company.
1.6.3. NO FRACTIONAL SHARES. No fractional shares of OSK Common Stock
shall be issued in connection with the Merger, and no
certificates or scrip for any such fractional shares shall be
issued. Any holder of the Company Common Stock who would
otherwise be entitled to receive a fraction of a share of OSK
Common Stock shall, in lieu of such fraction of a share, be
rounded up to the nearest whole number of shares of OSK Common
Stock.
1.7. TAX CONSEQUENCES. It is intended by the parties hereto that the Merger
shall constitute a reorganization within the meaning of Section 368 of
the Code.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY
In this Agreement, any reference to any event, change, condition or effect being
"material" with respect to any person means any material event, change,
condition or effect related to the condition (financial or otherwise),
properties, assets (including intangible assets), liabilities, business,
operations or results of operations of such person and its subsidiaries, taken
as a whole. In this Agreement, any reference to a "Material Adverse Effect" with
respect to any person means any event, change or effect that is materially
adverse to the condition (financial or otherwise), properties, assets,
liabilities, business, operations or results of operations of such person and
its subsidiaries, taken as a whole.
In this Agreement, any reference to a party's "Knowledge" means such party's
actual knowledge after reasonable inquiry of executive officers and directors
(within the meaning of Rule 405 under the Securities Act of 1933, as amended
("Securities Act")).
The Company represents and warrants to OSK and Merger Sub as follows:
2.1 ORGANIZATION, STANDING AND POWER. The Company is a corporation duly
organized, validly existing and in good standing in the state of New York,
and no certificate of dissolution has been filed under the laws of its
jurisdiction of organization. The Company has no subsidiaries. The Company
has the power to own its properties and to carry on its business as now
being conducted and as presently proposed to be conducted and is duly
authorized and qualified to do business and is in good standing in each
jurisdiction in which the failure to be so qualified and in good standing
would have a Material Adverse Effect on Company. The Company is not in
violation of any of the provisions of its charter or bylaws or equivalent
organization documents.
2.2 AUTHORITY. Company has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action on the part of Company,
subject only to the adoption of this Agreement by Company's stockholders
holding a majority of the outstanding shares of Company Common Stock. This
Agreement has been duly executed and delivered by Company and constitutes
the valid and binding obligation of Company enforceable against Company in
accordance with its terms, except as enforceability may be limited by
bankruptcy and other laws affecting the rights and remedies of creditors
generally and general principles of equity. The execution and delivery of
this Agreement by Company does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in any
violation of, or default under (with or without notice or lapse of time, or
both), or give rise to a right of termination, cancellation or acceleration
of any obligation or loss of any benefit under (i) any provision of the
Company Articles of Incorporation or Bylaws of Company, as amended, or (ii)
any mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to the Company or any of its
properties or assets. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other governmental authority or instrumentality
("Governmental Entity") is required by or with respect to Company in
connection with the execution and delivery of this Agreement by Company or
the consummation by Company of the transactions contemplated hereby, except
for (i) the filing of the Certificate of Merger as provided herein.
2.3 ABSENCE OF CERTAIN CHANGES. The Company has no liabilities or obligations
(whether known or unknown, absolute, accrued, contingent or otherwise and
whether due or to become due) other than those incurred in connection with
the execution of this Agreement.
2.4 COMPLIANCE WITH LAWS. The Company has complied with and is not in violation
of, and have not received any notices of violation with respect to, any
federal, state, local or foreign statute, law or regulation with respect to
the conduct of its business, or the ownership or operation of its business,
except for such violations or failures to comply as would not be reasonably
expected to have a Material Adverse Effect on Company.
2.5 BROKERS' AND FINDERS' FEES. The Company has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement or any transaction contemplated hereby. `
2.6 BOARD APPROVAL. The Board of Directors of Company has (i) approved this
Agreement and the Merger, (ii) determined that this Agreement and the
Merger are advisable and in the best interests of the stockholders of
Company and are on terms that are fair to such stockholders and (iii)
recommended that the stockholders of Company adopt and approve this
Agreement and the consummation of the Merger.
2.7 REPRESENTATIONS COMPLETE. None of the representations or warranties made by
Company herein or in any Schedule hereto, including the Company Disclosure
Schedule, or certificates furnished by Company pursuant to this Agreement,
when all such documents are read together in their entirety, contains or
will contain at the Effective Time any untrue statement of a material fact,
or omits or will omit at the Effective Time to state any material fact
necessary in order to make the statements contained herein or therein, in
the light of the circumstances under which made, not misleading. All
projected, forecasted or prospective financial information provided by
Company to OSK has been prepared in good faith on the basis of assumptions
Company believes are reasonable and supportable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OSK AND MERGER SUB
OSK and Merger Sub represents and warrants to the Company as follows:
3.1 ORGANIZATION, STANDING AND POWER. OSK is a corporation duly organized
in the state of Nevada and no certificates of dissolution have been
filed under the laws of its jurisdiction of organization. OSK
represents and warrants that OSK shall file all applicable annual
reports in the State of Nevada simultaneous with the filing of OSK's
updated reports to the Securities And Exchange Commission. OSK has the
power to own its properties and to carry on its business as now being
conducted and as presently proposed to be conducted and is duly
authorized and qualified to do business and is in good standing in each
jurisdiction in which the failure to be so qualified and in good
standing would have a Material Adverse Effect on OSK. OSK and Merger
Sub are not in violation of any of the provisions of their respective
charter or bylaws or equivalent organization documents. OSK is the
owner of all outstanding shares of capital stock of Merger Sub and all
such shares are duly authorized, validly issued, fully paid and
nonassessable. There are no outstanding subscriptions, options,
warrants, puts, calls, rights, exchangeable or convertible securities
or other commitments or agreements of any character relating to the
issued or unissued capital stock or other securities of any such
subsidiary, or otherwise obligating OSK to issue, transfer, sell,
purchase, redeem or otherwise acquire any such securities.
3.2 CAPITAL STRUCTURE. The authorized capital stock of OSK consists of
125,000,000 shares of common stock, $.001 par value. The shares of OSK
Common Stock to be issued pursuant to the Merger will be duly
authorized, validly issued, fully paid, and non-assessable, free of any
liens or encumbrances imposed by OSK or Merger Sub. There are no other
outstanding shares of capital stock or voting securities and no
outstanding commitments to issue any shares of capital stock or voting
securities after the date hereof. All outstanding shares of OSK Common
Stock are duly authorized, validly issued, fully paid and
non-assessable and are free of any liens or encumbrances other than any
liens or encumbrances created by or imposed upon the holders thereof,
and are not subject to preemptive rights or rights of first refusal
created by statute, the Articles of Incorporation or Bylaws of OSK or
any agreement to which OSK is a party or by which it is bound. There
are no contracts, commitments or agreements relating to voting,
purchase or sale of OSK's capital stock (i) between or among OSK and
any of its stockholders and (ii) to the best of OSK's knowledge,
between or among any of OSK's stockholders.
3.3 AUTHORITY. OSK and Merger Sub have all requisite corporate power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part
of OSK and Merger Sub. This Agreement has been duly executed and
delivered by OSK and Merger Sub and constitutes the valid and binding
obligations of OSK and Merger Sub enforceable against OSK and Merger
Sub in accordance with its terms, except as enforceability may be
limited by bankruptcy and other laws affecting the rights and remedies
of creditors generally and general principles of equity. The execution
and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in
any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit under
3.3.1 any provision of the Articles of Incorporation or Bylaws of OSK,
as amended, or;
3.3.2 any mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to OSK
or its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to OSK in connection
with the execution and delivery of this Agreement by OSK and Merger Sub
or the consummation by OSK and Merger Sub of the transactions
contemplated hereby, except for (i) the filing of the Certificate of
Merger as provided in Section 1.2; (ii) the filing of a Form 8-K with
the Securities and Exchange Commission within 15 days after the Closing
Date; (iii) any filings as may be required under applicable state
securities laws and the securities laws of any foreign country; and
(iv) such other consents, authorizations, filings, approvals and
registrations which, if not obtained or made, would not have a Material
Adverse Effect on OSK and would not prevent or materially alter or
delay any of the transactions contemplated by this Agreement.
3.4 ABSENCE OF UNDISCLOSED LIABILITIES. OSK has no material obligations or
liabilities of any nature (matured or unmatured, fixed or contingent)
other than those incurred in the ordinary course of business since the
OSK Balance Sheet date and not reasonably likely to have a Material
Adverse Effect on OSK, and those incurred in connection with the
execution of this Agreement.
3.5 LITIGATION. There is no private or governmental action, suit,
proceeding, claim, arbitration, audit or investigation pending before
any agency, court or tribunal, foreign or domestic, or, to the
knowledge of OSK, threatened against OSK or any of its respective
properties or any of its respective officers or directors (in their
capacities as such) that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect on OSK. There
is no injunction, judgment, decree, order or regulatory restriction
imposed upon OSK or any of its assets or business, or, to the knowledge
of OSK, any of its directors or officers (in their capacities as such),
that would prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement, or that could reasonably
be expected to have a Material Adverse Effect on OSK.
3.6 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no agreement, judgment,
injunction, order or decree binding upon OSK which has or reasonably
could be expected to have the effect of prohibiting or materially
impairing any business practice of OSK, any acquisition of property by
OSK or the conduct of business by OSK.
3.7 CERTAIN AGREEMENTS AFFECTED BY THE MERGER. Neither the execution and
delivery of this Agreement nor the consummation of the transaction
contemplated hereby will (i) result in any entitlement, payment or
benefit (including, without limitation, severance, unemployment
compensation, golden parachute, bonus or benefit under any OSK plan or
policy or otherwise) becoming due to any current or former director or
employee of OSK, (ii) increase the amount of any entitlements, payments
or benefits otherwise payable by OSK, or (iii) result in the
acceleration of the time of payment or vesting of any such
entitlements, payments or benefits.
3.8 INTERESTED PARTY TRANSACTIONS. OSK is not indebted to any director or
officer of OSK (except for amounts due as normal salaries and bonuses
and in reimbursement of ordinary expenses), and no such person is
indebted to OSK, and there are no other transactions of the type
required to be disclosed pursuant to Items 402 or 404 of Regulation S-B
under the Securities Act and the Exchange Act.
3.09 COMPLIANCE WITH LAWS. OSK has complied with, are is in violation of,
and has not received any notices of violation with respect to, any
federal, state, local or foreign statute, law or regulation with
respect to the conduct of its business, or the ownership or operation
of its business, except for such violations or failures to comply as
would not be reasonably expected to have a Material Adverse Effect on
OSK.
3.10 COMPLETE COPIES OF MATERIALS. OSK has delivered or made available true
and complete copies of each document that has been requested by Company
or its counsel in connection with their legal and accounting review of
OSK.
3.11 GOVERNMENTAL AUTHORIZATION. The OSK has obtained each federal, state,
county, local or foreign governmental consent, license, permit, grant,
or other authorization of a Governmental Entity (i) pursuant to which
OSK currently operates or holds any interest in any of its properties
or (ii) that is required for the operation of OSK's business or the
holding of any such interest ((i) and (ii) herein collectively called
"OSK Authorizations"), and all of such OSK Authorizations are in full
force and effect, except where the failure to obtain or have any of
such OSK Authorizations or where the failure of such OSK Authorizations
to be in full force and effect would not reasonably be expected to have
a
3.12 BROKERS' AND FINDERS' FEES. OSK has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement or any transaction contemplated
hereby.
3.13 BOARD APPROVAL. The Board of Directors of OSK has (i) approved this
Agreement and the Merger, and (ii) approved the issuance of the shares
of OSK Common Stock pursuant to this Agreement. The Board of Directors
of Merger Sub has approved this Agreement and the Merger, and
recommended that the sole stockholder of Merger Sub approve this
Agreement and the Merger. The affirmative vote of the OSK's
stockholders is not required to approve the Merger and the affirmative
vote of OSK as sole stockholder of Merger Sub is the only vote of the
holders of any of OSK's or Merger Sub's capital stock necessary to
approve this Agreement and the transactions contemplated hereby.
3.15 REPRESENTATIONS COMPLETE. None of the representations or warranties
made by OSK or Merger Sub herein, when all such documents are read
together in their entirety, contains or will contain at the Effective
Time any untrue statement of a material fact, or omits or will omit at
the Effective Time to state any material fact necessary in order to
make the statements contained herein or therein, in the light of the
circumstances under which made, not misleading. All projected,
forecasted or prospective financial information provided by OSK to the
Company has been prepared in good faith on the basis of assumptions OSK
believes are reasonable and supportable.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1 CONDUCT OF BUSINESS. During the period from the date of this Agreement
and continuing until the earlier of the termination of this Agreement
or the Effective Time, each of OSK and Company agrees (except to the
extent expressly contemplated by this Agreement or as consented to in
writing by the other party), to carry on its business in the ordinary
course in substantially the same manner as heretofore conducted, to pay
and to cause its subsidiaries to pay debts and Taxes when due subject
to good faith disputes over such debts or taxes, to pay or perform
other obligations when due, and to use all reasonable efforts
consistent with past practice and policies to preserve intact its and
its subsidiaries' present business organizations, use its reasonable
best efforts consistent with past practice to keep available the
services of its present officers and key employees and use its
reasonable best efforts consistent with past practice to preserve its
relationships with customers, suppliers, distributors, licensors,
licensees, and others having business dealings with it or its
subsidiaries, to the end that its and its subsidiaries' goodwill and
ongoing businesses shall be unimpaired at the Effective Time. The OSK
and Company agree to promptly notify the other of any material event or
occurrence not in the ordinary course of its or its subsidiaries'
business, and of any event that would have a Material Adverse Effect on
OSK or Company.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
The Company's obligation to enter into and complete the
Closing is conditioned upon the satisfaction or waiver in writing by the
Company, on or before the Closing Date, of all of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made
by OSK and Merger Sub contained in this Merger Agreement, the schedules
or exhibits hereto or in any certificate or document delivered to the
Company by OSK and Merger Sub in connection with the transactions
contemplated by this Merger Agreement shall be true in all respects
(without giving effect to any materiality qualifications or limitations
therein) on and as of the Closing Date with the same effect as though
such representations and warranties were made on such date except for
such failures to be true and correct which in the aggregate would not
reasonably be expected to result in a Material Adverse Effect on OSK
and Merger Sub.
6.2 PERFORMANCE OF COVENANTS. OSK and Merger Sub shall have performed and
complied in all material respects with all of the agreements and
covenants required by this Merger Agreement to be performed and
complied with by it prior to or on the Closing Date.
6.3 LITIGATION. No injunction shall have been issued by any court or
Governmental Authority which restrains or prohibits this Merger
Agreement or the consummation of the transactions contemplated hereby.
6.4 ANTITRUST LAWS COMPLIANCE. There is an applicable exemption to rules
and regulations of the Antitrust Laws applicable to the transactions
contemplated by this Merger Agreement.
6.5 SHAREHOLDER APPROVAL. The Company Shareholder Approval required in
connection with the consummation of the Merger shall have been
obtained.
6.7 MATERIAL CHANGES. There shall not have been any change that has had or
could reasonably be expected to have a Material Adverse Effect on the
assets, properties, condition (financial or otherwise), prospects or
results of operations of the OSK from the date hereof to the Closing
Date, nor shall there exist any condition which could reasonably be
expected to result in such a Material Adverse Effect, and there shall
have been delivered to OSK a certificate, dated the Closing Date, to
such effect signed by an authorized officer of the OSK.
6.8 CERTIFICATE OF MERGER. Prior to the Effective Time, the Certificate of
Merger shall be accepted for filing with the Secretary of State of the
State of Nevada
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
OSK AND MERGER SUB
The obligations of OSK and Merger Sub to enter into and complete the
Closing are conditioned upon the satisfaction or waiver by OSK on behalf of
itself and Merger Sub, on or before the Closing Date, of the following
conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made
by the Company contained in this Merger Agreement, the schedules or
exhibits hereto or in any certificate or document delivered to OSK or
the Merger Sub by the Company in connection with the transactions
contemplated by this Merger Agreement shall be true in all respects
(without giving effect to any materiality qualifications or limitations
therein) on and as of the Closing Date with the same effect as though
such representations and warranties were made on such date, except (i)
as otherwise contemplated by this Merger Agreement and (ii) for such
failures to be true and correct which in the aggregate would not
reasonably be expected to result in a Material Adverse Effect on the
Company.
6.2 PERFORMANCE OF COVENANTS. The Company shall have performed and complied
in all material respects with all of the agreements and covenants
required by this Merger Agreement to be performed and complied with by
it prior to or on the Closing Date, except as otherwise contemplated by
this Merger Agreement. The Company shall have paid a $US 10,000
non-refundable advance legal fee to ▇▇▇▇▇▇▇▇▇▇▇ Capital Inc. financed
by ▇▇▇▇▇▇▇▇▇▇▇ Capital Inc. and or ▇▇▇▇▇▇ ▇▇▇▇ Attorney as
consideration for the legal services rendered.
6.3 LITIGATION. No injunction shall have been issued by any court or
Governmental Authority which restrains or prohibits this Merger
Agreement or the consummation of the transactions contemplated hereby.
6.4 ANTITRUST LAWS ACT COMPLIANCE. There is an applicable exemption to
rules and regulations of the Antitrust Laws Act applicable to the
transactions contemplated by this Merger Agreement.
6.5 CONSENTS AND APPROVALS. The consents and approvals specified herein
shall have been obtained in form and substance satisfactory to OSK in
its reasonable discretion.
6.6 MATERIAL CHANGES. There shall not have been any change that has had or
could reasonably be expected to have a Material Adverse Effect on the
assets, properties, condition (financial or otherwise), prospects or
results of operations of the Company from the date hereof to the
Closing Date, nor shall there exist any condition which could
reasonably be expected to result in such a Material Adverse Effect, and
there shall have been delivered to OSK a certificate, dated the Closing
Date, to such effect signed by an authorized officer of the Company.
6.7 SHAREHOLDER APPROVAL. The Company Shareholder Approval required in
connection with the consummation of the Merger shall have been
obtained.
6.8 CERTIFICATE OF MERGER. Prior to the Effective Time, the Certificate of
Merger shall be accepted for filing with the Secretary of State of the
State of New York.
ARTICLE VII
TERMINATION
7.1 TERMINATION EVENTS. This Merger Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time without
prejudice to any other rights or remedies either party may have by
written agreement, duly authorized by the Boards of Directors of OSK,
Merger Sub and the Company;
7.2 EFFECT OF TERMINATION. In the event this Merger Agreement is terminated
pursuant to Section 7.1, all further obligations of the parties
hereunder shall terminate. Each party's right of termination hereunder
is in addition to any other rights it may have hereunder or otherwise
and the exercise of a right of termination shall not be an election of
remedies.
8.3 AMENDMENT. To the extent permitted by applicable law, this Merger
Agreement may be amended by action taken by or on behalf of the
respective Boards of Directors of the Company, OSK and Merger Sub at
any time; provided, however, that, following approval by the
Stockholders of the Company, no amendment shall be made which under the
New York Corporate Law would require the further approval of the
Stockholders of the Company without obtaining such approval. This
Merger Agreement may not be amended except by an instrument in writing
signed on behalf of all of the parties hereto.
8.4 WAIVER. At any time prior to the Effective Time any party hereto may,
to the extent legally allowed, (i) extend the time for the performance
of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made
to such party contained herein or in any document delivered pursuant
hereto and (iii) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE VIII
MISCELLANEOUS
8.1 CAPTIONS AND HEADINGS. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no
way be deemed to define, limit, or add to the meaning of any provision
of this Agreement.
8.2 NO ORAL CHANGE. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, or discharge is sought.
8.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, without regard to the
laws that might otherwise govern under applicable principles of
conflicts of law. Each of the parties hereto irrevocably consents to
the exclusive jurisdiction of any court located within the State of
Nevada in connection with any matter based upon or arising out of this
Agreement or the matters contemplated herein, agrees that process may
be served upon them in any manner authorized by the laws of the State
of Nevada for such persons and waives and covenants not to assert or
plead any objection which they might otherwise have to such
jurisdiction and such process.
8.4 PUBLIC ANNOUNCEMENTS. Subject to any requirement of applicable law or
stock exchange listing agreement, all public announcements or similar
publicity with respect to this Merger Agreement or the transactions
contemplated hereby shall be issued only with the consent of OSK and
the Company. Unless consented to by each party hereto in advance prior
to the Closing, all parties hereto shall keep the provisions of this
Merger Agreement strictly confidential and make no disclosure thereof
to any Person, other than such party's respective legal and financial
advisors, subject to the requirements of applicable law or securities
exchange regulations.
8.5 SUCCESSORS. This Merger Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors
and permitted assigns.
8.6 FURTHER ASSURANCES. Each of the parties hereto agrees that it will,
from time to time after the date of this Merger Agreement, execute and
deliver such other certificates, documents and instruments and take
such other action as may be reasonably requested by the other party to
carry out the actions and transactions contemplated by this Merger
Agreement.
8.7 CONFIDENTIALITY. The Confidentiality Agreement between OSK and the
Company is incorporated by reference herein and shall continue in full
force and effect in accordance with the terms thereof. In the event of
termination or abandonment of the transactions contemplated by this
Agreement pursuant to Section 8.1, the Confidentiality Agreement shall
continue in full force and effect. The definition of "Confidential
Information" contained in the Confidentiality Agreement is hereby
amended to include this Agreement and all information obtained pursuant
to of this Agreement.
8.8 NOTICES. All notices requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to
whom notice is to be given, or on the third day after mailing if mailed
to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed, and
by fax, as follows:
If to OSK or Merger Sub:
OSK CAPITAL III
▇ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone:
With a copy to:
▇▇▇▇▇▇ ▇. Emas
Attorney at Law
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
IDEAL MEDICAL INC.
Attention:
Telephone:
Facsimile:
With a copy to:
8.9 NON-WAIVER. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed
to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party
to insist in any one or more cases upon the performance of any of the
provisions, covenants, or conditions of this Agreement or to exercise
any option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by
this Agreement to be performed with knowledge of the breach or failure
of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect
to any other or subsequent breach.
8.10 TIME OF ESSENCE. Time is of the essence of this Agreement and of each
and every provision hereof.
8.11 REMEDIES CUMULATIVE. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy.
8.12 SEVERABILITY. If any provision of this Agreement, or the application
thereof, becomes or is declared by a court of competent jurisdiction to
be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision
to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with
a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such void or
unenforceable provision.
8.13 ENTIRE AGREEMENT. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
8.14 RULES OF CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of
any law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document will be construed against
the party drafting such agreement or document.
8.15 EXPENSES. Except as expressly otherwise provided herein, each party
shall bear its own expenses incurred in connection with the
preparation, execution and performance of this Merger Agreement and the
transactions contemplated hereby, including all fees and expenses of
agents, representatives, counsel and accountants. All such expenses
incurred by the Company ("Company Transaction Expenses") shall be
repaid in full at the Closing.
8.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties,
it being understood that all parties need not sign the same
counterpart.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Merger Agreement as
of the date first above written.
OSK THE COMPANY
OSK CAPITAL III IDEAL MEDICAL INC.
By: s/s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------- --------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer Title: President
MERGER SUB
OSK ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. Emas
---------------------
Name: ▇▇▇▇▇▇ ▇. Emas
Title: President