AGREEMENT OF MERGER AND PLAN OF REORGANIZATION among CONVENTION ALL HOLDINGS, INC., MIT CVAH ACQUISITION CORP. and MIT HOLDING, INC. MAY 2, 2007
AGREEMENT
OF MERGER AND
PLAN
OF
REORGANIZATION
among
CONVENTION
ALL HOLDINGS, INC.,
MIT
CVAH
ACQUISITION CORP. and
MIT
HOLDING, INC.
MAY
2,
2007
AGREEMENT
OF MERGER AND PLAN OF REORGANIZATION
THIS
AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
is made
and entered into on May 2, 2007, by and among CONVENTION ALL HOLDINGS, INC.,
a
Delaware corporation (“Parent”)
and
MIT CVAH ACQUISITION CORP., a Delaware corporation (“Acquisition
Corp.”),
which
is a wholly-owned subsidiary of Parent, and MIT HOLDING, INC., a Delaware
corporation (the “Company”).
WITNESSETH
:
WHEREAS,
the
Board of Directors of each of Acquisition Corp., Parent and the Company have
each determined that it is fair to and in the best interests of their respective
corporations and stockholders for Acquisition Corp. to be merged with and into
the Company (the “Merger”)
upon
the terms and subject to the conditions set forth herein;
WHEREAS,
the
Board of Directors of Acquisition Corp. and the Board of Directors of the
Company has approved the Merger in accordance with the Delaware General
Corporation Law (the “DGCL”), and upon the terms and subject to the conditions
set forth herein and in the Certificate of Merger (the “Certificate
of Merger”)
attached as Exhibit
A
hereto;
and the Board of Directors of Parent also has approved this Agreement and the
Certificate of Merger;
WHEREAS,
the
requisite Shareholders (as such term is defined in Section 10 hereof) have
approved, by written consent pursuant to Section 228 of the DGCL, this Agreement
and the Certificate of Merger and the transactions contemplated and described
hereby and thereby, including, without limitation, the Merger, and Parent,
as
the sole shareholder of Acquisition Corp., has approved this Agreement, the
Certificate of Merger and the transactions contemplated and described hereby
and
thereby, including, without limitation, the Merger; and
WHEREAS,
the
Company is selling Units consisting of shares of its Series A Convertible
Preferred Stock, par value $.0001 per share, and detachable warrants to purchase
shares of its Common Stock, par value $.0001 per share, in a private placement
(the “Private
Placement”)
to
accredited investors, pursuant to the terms of a Confidential Private Placement
Memorandum, dated March 19, 2007, as it may be supplemented (the “Memorandum”),
for
the purpose of financing the ongoing business and operations of the Surviving
Corporation (as defined below) following the Merger. Upon the amendment of
the
certificate of incorporation of the Parent, the Series A Convertible Preferred
Stock and the warrants included in the Units will be exchanged for securities
of
the Parent.
NOW,
THEREFORE,
in
consideration of the mutual agreements and covenants hereinafter set forth,
the
parties hereto agree as follows:
1. The
Merger.
1.1 Merger.
Subject
to the terms and conditions of this Agreement and the Certificate of Merger,
Acquisition Corp. shall be merged with and into the Company in accordance with
the DGCL. At the Effective Time (as hereinafter defined), the separate legal
existence of Acquisition Corp. shall cease, and the Company shall be the
surviving corporation in the Merger (sometimes hereinafter referred to as the
“Surviving
Corporation”)
and
shall continue its corporate existence under the laws of the State of Delaware
under the name Medical Infusion Group, Inc.
-1-
1.2 Effective
Time.
The
Merger shall become effective on the date and at the time the Certificate of
Merger is filed with the Secretary of State of the State of Delaware in
accordance with the DGCL. The time at which the Merger shall become effective
as
aforesaid is referred to hereinafter as the “Effective
Time,”
and
the filing of the Certificate of Merger as set forth in the first sentence
of
this Section 1.2 shall occur concurrently with the Closing.
1.3 Certificate
of Incorporation, By-laws, Directors and Officers.
(a) The
Certificate of Incorporation of the Company, as in effect immediately prior
to
the Effective Time, attached as Exhibit
B
hereto,
shall be the Certificate of Incorporation of the Surviving Corporation from
and
after the Effective Time until further amended in accordance with applicable
law.
(b) The
By-laws of the Company, as in effect immediately prior to the Effective Time,
attached as Exhibit
C
hereto,
shall be the By-laws of the Surviving Corporation from and after the Effective
Time until amended in accordance with applicable law, the Certificate of
Incorporation and such By-laws.
(c) The
directors and executive officers listed in Exhibit
D
hereto
shall be the directors and executive officers of the Surviving Corporation,
and
each shall hold his respective office or offices from and after the Effective
Time until his successor shall have been elected and shall have qualified in
accordance with applicable law, or as otherwise provided in the Certificate
of
Incorporation or By-laws of the Surviving Corporation.
1.4 Assets
and Liabilities.
At the
Effective Time, the Surviving Corporation shall possess all the rights,
privileges, powers and franchises of a public as well as of a private nature,
and be subject to all the restrictions, disabilities and duties of each of
Acquisition Corp and the Company (collectively, the “Constituent
Corporations”);
and
all the rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, and all debts due
to
any of the constituent corporations on whatever account, as well for stock
subscriptions as all other things in action or belonging to each of the
Constituent Corporations, shall be vested in the Surviving Corporation; and
all
property, rights, privileges, powers and franchises, and all and every other
interest shall be thereafter as effectively the property of the Surviving
Corporation as they were of the several and respective constituent corporations,
and the title to any real estate vested by deed or otherwise in either of the
such Constituent Corporations shall not revert or be in any way impaired by
the
Merger; but all rights of creditors and all liens upon any property of any
of
the Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the Constituent Corporations shall thenceforth attach
to the Surviving Corporation, and may be enforced against it to the same extent
as if said debts, liabilities and duties had been incurred or contracted by
it.
-2-
1.5 Manner
and Basis of Converting Shares.
(a) At
the
Effective Time:
(i) each
share of Common Stock, par value $.0001 per share, of Acquisition Corp. that
shall be outstanding immediately prior to the Effective Time shall, by virtue
of
the Merger and without any action on the part of the holder thereof, be
converted into the right to receive one (1) share of Common Stock, par value
$.0001 per share, of the Surviving Corporation, so that at the Effective Time,
Parent shall be the holder of all of the issued and outstanding shares of the
Surviving Corporation;
(ii) the
shares of Common Stock, par value $.0001 per share, of the Company (the
“Company
Common Stock”),
which
shares at the Closing will constitute all of the issued and outstanding shares
of capital stock of the Company, beneficially owned by the Shareholders listed
in Schedule
1.5(a)
(other
than shares of Company Common Stock as to which appraisal rights are perfected
pursuant to the applicable provisions of the DGCL and not withdrawn or otherwise
forfeited), shall, by virtue of the Merger and without any action on the part
of
the holders thereof, be converted into the right to receive the, pro rata,
number of shares of Parent Common Stock specified in Schedule
1.5(b)
for each
of the Shareholders; and
(iii) each
share of Company Common Stock held in the treasury of the Company immediately
prior to the Effective Time shall be cancelled in the Merger and cease to
exist.
(b) After
the
Effective Time, there shall be no further registration of transfers on the
stock
transfer books of the Surviving Corporation of the shares of Company Common
Stock that were outstanding immediately prior to the Effective
Time.
1.6 Surrender
and Exchange of Certificates.
Promptly after the Effective Time and upon (i) surrender of a certificate or
certificates representing shares of Company Common Stock that were outstanding
immediately prior to the Effective Time or an affidavit and indemnification
in
form reasonably acceptable to counsel for the Parent stating that such
Stockholder has lost their certificate or certificates or that such have been
destroyed and (ii) delivery of a Letter of Transmittal (as described in Section
4 hereof), Parent shall issue to each record holder of the Company Common Stock
surrendering such certificate or certificates and Letter of Transmittal, a
certificate or certificates registered in the name of such Stockholder
representing the number of shares of Parent Common Stock (identical to that
set
forth in Schedule
1.5(a)
that
such Stockholder shall be entitled to receive pursuant to Section 1.5(a)(ii)
hereof. Until the certificate, certificates or affidavit is or are surrendered
together with the Letter of Transmittal as contemplated by this Section 1.6
and
Section 4 hereof, each certificate or affidavit that immediately prior to the
Effective Time represented any outstanding shares of Company Common Stock shall
be deemed at and after the Effective Time to represent only the right to receive
upon surrender as aforesaid the Parent Common Stock specified in Schedule
1.5(b)
hereof
for the holder thereof or to perfect any rights of appraisal which such holder
may have pursuant to the applicable provisions of the DGCL.
-3-
1.7 Private
Placement.
At the
Effective Time each share of Series A Convertible Preferred Stock and each
warrant of the Company outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive one (1) share of Series A
Convertible Preferred Stock and one warrant in the Parent with identical rights
and privileges.
1.8 Parent
Common Stock
.
Parent
agrees that it will cause the Parent Common Stock into which the Company Common
Stock is converted at the Effective Time pursuant to Section 1.5(a)(ii) to
be
available for such purpose. Parent further covenants that immediately prior
to
the Effective Time there will be no more than 10,000,000 shares of Parent Common
Stock issued and outstanding and that no other common or preferred stock or
equity securities or any options, warrants, rights or other agreements or
instruments convertible, exchangeable or exercisable into common or preferred
stock or other equity securities shall be issued or outstanding, except as
described herein.
2. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to Parent and Acquisition Corp. as
follows:
2.1 Organization,
Standing, Subsidiaries, Etc.
(a) The
Company and each of its Subsidiaries is a corporation duly organized and
existing in good standing under the laws of its jurisdiction of incorporation,
and has all requisite power and authority (corporate and other) to carry on
its
business, to own or lease its properties and assets, to enter into this
Agreement and to consummate the transactions contemplated hereby. Copies of
the
Certificate of Incorporation and By-laws of the Company that have been delivered
to Parent and Acquisition Corp. prior to the execution of this Agreement are
true and complete and have not since been amended or repealed.
(b) Except
for the subsidiaries set forth on Schedule
2.1,
the
Company has no subsidiaries or direct or indirect interest (by way of stock
ownership or otherwise) in any firm, corporation, limited liability company,
partnership, association or business. Unless the content otherwise requires,
all
references in this Section 2 to the “Company” shall be treated as being a
reference to the Company and its Subsidiaries taken together as one
enterprise.
2.2 Qualification.
The
Company and each of the Subsidiaries is duly qualified to conduct business
as a
foreign corporation and is in good standing in each jurisdiction wherein the
nature of its activities or its properties owned or leased makes such
qualification necessary, except where the failure to be so qualified could
not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), properties, assets, liabilities, business operations
or results of operations of the Company taken as a whole (the “Condition
of the Company”).
Schedule
2.2
sets
forth a list of the jurisdictions in which the Company and each of the
Subsidiaries is so qualified to conduct business.
-4-
2.3 Capitalization
of the Company.
The
authorized capital stock of the Company consists of 100,000,000 shares of
Company Common Stock and 5,000,000 shares of preferred stock, and the Company
has no authority to issue any other capital stock. There are 32,886,779 shares
of Company Common Stock issued and outstanding, and such shares are duly
authorized, validly issued, fully paid and non-assessable, and none of such
shares have been issued in violation of the preemptive rights of any person.
Except as disclosed in Schedule
2.3
and with
respect to securities sold in the Private Placement subsequent to the date
hereof, the Company has no outstanding options, rights or commitments to issue
Company Common Stock or other Equity Securities of the Company, and there are
no
outstanding securities convertible or exercisable into or exchangeable for
Company Common Stock or other Equity Securities of the Company.
2.4 Corporate
Acts and Proceedings.
The
execution, delivery and performance of this Agreement and the Certificate of
Merger (together, the “Merger
Documents”)
have
been duly authorized by the Board of Directors of the Company and have been
approved by the requisite vote of the Shareholders, and all of the corporate
acts and other proceedings required for the due and valid authorization,
execution, delivery and performance of the Merger Documents and the consummation
of the Merger have been validly and appropriately taken, except for the filing
referred to in Section 1.2.
2.5 Compliance
with Laws and Instruments.
The
business, products and operations of the Company have been and are being
conducted in compliance in all material respects with all applicable laws,
rules
and regulations, except for such violations thereof for which the penalties,
in
the aggregate, would not have a material adverse effect on the Condition of
the
Company. The execution, delivery and performance by the Company of the Merger
Documents and the consummation by the Company of the transactions contemplated
by this Agreement: (a) will not require any authorization, consent or approval
of, or filing or registration with, any court or governmental agency or
instrumentality, except such as shall have been obtained prior to the Closing,
as set forth in Schedule
2.5,
or as
otherwise provided herein, (b) will not cause the Company to violate or
contravene (i) any provision of law, (ii) any rule or regulation of any agency
or government, (iii) any order, judgment or decree of any court, or (iv) any
provision of the Certificate of Incorporation or By-laws of the Company, (c)
will not violate or be in conflict with, result in a breach of or constitute
(with or without notice or lapse of time, or both) a default under, any
indenture, loan or credit agreement, deed of trust, mortgage, security agreement
or other contract, agreement or instrument to which the Company is a party
or by
which the Company or any of its properties is bound or affected, except as
would
not have a material adverse effect on the Condition of the Company, and (d)
will
not result in the creation or imposition of any Lien upon any property or asset
of the Company. The Company is not in violation of, or (with or without notice
or lapse of time, or both) in default under, any term or provision of its
Certificate of Incorporation or By-laws or of any indenture, loan or credit
agreement, deed of trust, mortgage, security agreement or any other material
agreement or instrument to which the Company is a party or by which the Company
or any of its properties is bound or affected, in each case, except as would
not
materially and adversely affect the Condition of the Company.
-5-
2.6 Binding
Obligations.
The
Merger Documents constitute the legal, valid and binding obligations of the
Company and are enforceable against the Company in accordance with their
respective terms, except as such enforcement is limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors’ rights
generally and by general principles of equity.
2.7 Broker’s
and Finder’s Fees.
No
Person
has, or as a result of the transactions contemplated or described herein will
have, any right or valid claim against the Company, Parent, Acquisition Corp.
or
any Shareholder for any commission, fee or other compensation as a finder or
broker, or in any similar capacity, except as disclosed in Schedule
2.7
hereto.
2.8 Financial
Statements.
Attached
hereto as Schedule
2.08
is the
Company’s audited balance sheet (the “Balance
Sheet”)
as of
December 31, 2006 (the “Balance
Sheet Date”),
and
the audited statements of operations, stockholders’ equity and cash flows for
the years ended December 31, 2005 and 2004 ((the “Financial
Statements”).
Such
financial statements (i) are in accordance with the books and records of the
Company, (ii) present fairly in all material respects the financial condition
of
the Company at the dates therein specified and the results of its operations
and
changes in financial position for the periods therein specified and (iii) have
been prepared in all material respects in accordance with generally accepted
accounting principles (“GAAP”)
applied on a basis consistent with prior accounting periods.
2.9 Absence
of Undisclosed Liabilities.
The
Company has no material obligation or liability (whether accrued, absolute,
contingent, liquidated or otherwise, whether due or to become due), arising
out
of any transaction entered into at or prior to the Closing, except (a) as
disclosed in Schedule
2.9
hereto,
(b) to the extent set forth on or reserved against in the Balance Sheet or
the
Notes to the Financial Statements, (c) current liabilities incurred and
obligations for agreements entered into and obligations under agreements entered
into in the usual and ordinary course of business since the Balance Sheet Date,
none of which (individually or in the aggregate) has had or will have a material
adverse effect on the Condition of the Company, and (d) by the specific terms
of
any written agreement, document or arrangement identified in the
Schedules.
2.10 Changes.
Since
the Balance Sheet Date, no event has occurred which could be reasonably
anticipated to have a material adverse effect on the condition of the
Company.
-6-
2.11 Schedule
of Contracts and Other Assets
(a) Schedule
2.11(a)
contains
a true and complete list of all real property leased by the Company, and of
all
tangible personal property owned or leased by the Company having a cost or
fair
market value of greater than $10,000. All the real property listed in
Schedule
2.11(a)
is
leased by the Company under valid and enforceable leases; there is not, under
any such lease, any existing default or event of default or event which with
notice or lapse of time, or both, would constitute a default by the Company,
and
the Company has not received any notice or claim of any such default. The
Company does not own any real property.
(b) Except
as
expressly set forth in this Agreement, the Balance Sheet or the notes thereto,
or as disclosed in Schedule
2.11(b)
hereto,
the Company is not a party to any written or oral agreement not made in the
ordinary course of business that is material to the Company.
(c) Schedule
2.11(c)
contains
a true and complete list of all insurance policies and insurance coverage with
respect to the Company, its business, premises, properties, assets, employees
and agents.
(d) Schedule
2.11(d)
contains
a true and complete list of all patents, patent applications, trade names,
trademarks, trademark registrations and applications, service marks, copyrights,
copyright registrations and applications, and grants of licenses, both domestic
and foreign, presently owned, possessed, used or held by the Company used in
or
necessary for the conduct of its business as now conducted or proposed to be
conducted without infringing upon or otherwise violating the right of any Person
under or with respect to any of the foregoing and (ii) is not obligated or,
to
the Company’s knowledge, under any liability to make any payments by way of
royalties, fees or otherwise to any owner or licensor of, or other claimant,
for
the use of any patent, trademark, service ▇▇▇▇, trade name, copyright or other
intangible asset that is material to or necessary for the conduct of its
business (other than licenses for commercial “off-the-shelf” or “shrinkwrap”
software); and, except as set forth in Schedule
2.11(d),
the
Company owns the entire right, title and interest in and to the same, free
and
clear of all Liens and restrictions. Schedule
2.11(d)
also
contains a true and complete list of all licenses granted to or by the Company
with respect to the foregoing. Except as disclosed in Schedule
2.11(d),
all
patents, patent applications, trade names, trademarks, trademark registrations
and applications, copyrights, copyright registrations and applications and
grants of licenses set forth in Schedule
2.11(d)
(i) are
subject to no pending or, to the Company’s knowledge, threatened challenge, and
(ii) can and will be transferred by the Company to the Surviving Corporation
as
a result of the Merger and without the consent of any Person other than the
Company. Neither the execution nor delivery of the Merger Documents, nor the
consummation of the transactions contemplated thereby will give any licensor
or
licensee of the Company any right to change the terms or provisions of,
terminate or cancel, any license to which the Company is a party.
(e) The
Company has furnished to Parent and Acquisition Corp. true and complete copies
of all agreements and other documents and a description of all applicable oral
agreements disclosed or referred to in Schedules
2.11(a)
through
2.11(d)
requested by Parent or Acquisition Corp., as well as any additional agreements
or documents requested by Parent or Acquisition Corp. The Company has in all
material respects performed all obligations required to be performed by it
to
date and is not in default in any respect under any of the contracts,
agreements, leases, documents, commitments or other arrangements to which it
is
a party or by which it or any of its property is otherwise bound or affected.
To
the best current actual knowledge of the Company, all parties having material
contractual arrangements with the Company are in substantial compliance
therewith and none are in material default thereunder.
-7-
2.12 Employees.
The
Company has complied in all material respects with all laws relating to the
employment of labor, and the Company has encountered no material labor union
difficulties.
2.13 Tax
Returns and Audits.
All
required federal, state and local Tax Returns of the Company have been
accurately prepared and duly and timely filed, and all federal, state and local
Taxes required to be paid with respect to the periods covered by such returns
have been paid. The Company is not and has not been delinquent in the payment
of
any Tax. The reserves for Taxes reflected on the Balance Sheet are and will
be
sufficient for the payment of all unpaid Taxes payable by the Company as of
the
Balance Sheet Date. Since the Balance Sheet Date, the Company has made adequate
provisions on its books of account for all Taxes with respect to its business,
properties and operations for such period. The Company has withheld or collected
from each payment made to each of its employees the amount of all taxes
(including, but not limited to, federal, state and local income taxes, Federal
Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes)
required to be withheld or collected therefrom.
2.14 [Intentionally
left blank]
2.15 Employee
Benefit Plans; ERISA.
Except
as disclosed in Schedule
2.15
hereto,
there are no “employee benefit plans” (within the meaning of Section 3(3) of the
ERISA) nor any other employee benefit or fringe benefit arrangements, practices,
contracts, policies or programs of every type other than programs merely
involving the regular payment of wages, commissions, or bonuses established,
maintained or contributed to by the Company, whether written or unwritten and
whether or not funded. The plans listed in Schedule
2.15
hereto
are hereinafter referred to as the “Employee
Benefit Plans.”
2.16 Title
to Property and Encumbrances.
Except
as set forth in the Balance Sheet or Schedule
2.16,
the
Company has good, valid and indefeasible marketable title to all properties
and
assets used in the conduct of its business (except for property held under
valid
and subsisting leases which are in full force and effect and which are not
in
default) free of all Liens and other encumbrances, except Permitted Liens and
such ordinary and customary imperfections of title, restrictions and
encumbrances as could not reasonably be expected to, individually or in the
aggregate, materially detract from the value of the property or assets or
materially impair the use made thereof by the Company in its business.
2.17 Condition
of Properties.
All
facilities, machinery, equipment, fixtures and other properties owned, leased
or
used by the Company are in operating condition and repair, subject to ordinary
wear and tear, and are adequate and sufficient for the Company’s business as
presently conducted.
-8-
2.18 Insurance
Coverage.
There
is in full force and effect one or more policies of insurance issued by insurers
of recognized responsibility, insuring the Company and its properties, products
and business against such losses and risks, and in such amounts, as are
customary for corporations of established reputation engaged in the same or
similar business and similarly situated.
2.19 Litigation.
Except
as set forth in Schedule
2.19,
there
is no legal action, suit, arbitration or other legal, administrative or other
governmental proceeding pending or, to the best knowledge of the Company,
threatened against or affecting the Company or its properties, assets or
business that might reasonably be expected to materially and adversely affect
the Condition of the Company. The Company is not in default with respect to
any
order, writ, judgment, injunction, decree, determination or award of any court
or any governmental agency or instrumentality or arbitration
authority.
2.20 Licenses.
The
Company possesses from all appropriate governmental authorities all licenses,
permits, authorizations, approvals, franchises and rights necessary for the
Company to engage in the business currently conducted by it, except for those
the absence of which could reasonably be expected to materially and adversely
affect the Condition of the Company, all of which are in full force and
effect.
2.21 Environmental
Matters.
(a) To
the
knowledge of the Company, the Company has never generated, used, handled,
treated, released, stored or disposed of any Hazardous Materials on any real
property on which it now has or previously had any leasehold or ownership
interest, except in material compliance with all applicable Environmental
Laws.
(b) To
the
knowledge of the Company, the historical and present operations of the business
of the Company are in compliance with all applicable Environmental Laws, except
where any non-compliance has not had and would not reasonably be expected to
have a material adverse effect on the Condition of the Company.
(c) There
are
no material pending or, to the knowledge of the Company, threatened, demands,
claims, information requests or notices of noncompliance or violation against
or
to the Company relating to any Environmental Law; and, to the knowledge of
the
Company, there are no conditions or occurrences on any of the real property
leased or owned by the Company in connection with its business that would
reasonably be expected to lead to any such demands, claims or notices against
or
to the Company, except such as have not had, and would not reasonably be
expected to have, a material adverse effect on the Condition of the
Company.
3. Representations
and Warranties of Parent and Acquisition Corp.
Parent
and Acquisition Corp. represent and warrant to the Company as
follows:
3.1 Organization
and Standing.
Parent
is
a corporation duly organized and existing in good standing under the laws of
the
State of Delaware. Acquisition Corp. is a corporation duly organized and
existing in good standing under the laws of the State of Delaware. Parent and
Acquisition Corp. have heretofore delivered to the Company complete and correct
copies of their respective Certificates of Incorporation and By-laws as now
in
effect. Neither Parent nor Acquisition Corp. is qualified to conduct business
as
a foreign corporation in any other state. Parent and Acquisition Corp. have
full
corporate power and authority to carry on their respective businesses as they
are now being conducted and as now proposed to be conducted and to own or lease
their respective properties and assets. Neither Parent nor Acquisition Corp.
has
any subsidiaries (except Parent’s ownership of Acquisition Corp.) or direct or
indirect interest (by way of stock ownership or otherwise) in any firm,
corporation, limited liability company, partnership, association or business.
Parent owns all of the issued and outstanding capital stock of Acquisition
Corp.
free and clear of all Liens, and Acquisition Corp. has no outstanding options,
warrants or rights to purchase capital stock or other equity securities of
Acquisition Corp., other than the capital stock owned by Parent. Unless the
content otherwise requires, all references in this Section 3 to the “Parent”
shall be treated as being a reference to the Parent and Acquisition Corp. taken
together as one enterprise.
-9-
3.2 Corporate
Authority.
Each
of
Parent and/or Acquisition Corp. (as the case may be) has full corporate power
and authority to enter into the Merger Documents and the other agreements to
be
made pursuant to the Merger Documents, and to carry out the transactions
contemplated hereby and thereby. All corporate acts and proceedings required
for
the authorization, execution, delivery and performance of the Merger Documents
and such other agreements and documents by Parent and/or Acquisition Corp.
(as
the case may be) have been duly and validly taken or will have been so taken
prior to the Closing. Each of the Merger Documents constitutes a legal, valid
and binding obligation of Parent and/or Acquisition Corp. (as the case may
be),
each enforceable against them in accordance with their respective terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization
or
other similar laws affecting creditors’ rights generally and by general
principles of equity.
3.3 Broker’s
and Finder’s Fees.
No
person, firm, corporation or other entity is entitled by reason of any act
or
omission of Parent or Acquisition Corp. to any broker’s or finder’s fees,
commission or other similar compensation with respect to the execution and
delivery of this Agreement or the Certificate of Merger, or with respect to
the
consummation of the transactions contemplated hereby or thereby, except as
disclosed in Schedule
3.3
hereto.
Parent and Acquisition Corp. jointly and severally indemnify and hold Company
harmless from and against any and all loss, claim or liability arising out
of
any such claim from any other Person who claim they introduced Parent or
Acquisition Corp. to, or assisted them with the transactions contemplated by
or
described herein.
3.4 Capitalization
of Parent.
The
authorized capital stock of Parent consists of (a) 1,000,000,000 shares of
Common Stock, par value $.000001 per share (the “Parent Common Stock”), of which
not more than 10,000,000 shares will be, prior to the Effective Time, issued
and
outstanding; and (b) 20,000,000 shares of “blank check” preferred stock, par
value $.000001 per share, of which no shares have been issued. Except as
disclosed in Schedule
3.4,
Parent
has no outstanding options, rights or commitments to issue shares of Parent
Common Stock or any other Equity Security of Parent or Acquisition Corp., and
there are no outstanding securities convertible or exercisable into or
exchangeable for shares of Parent Common Stock or any other Equity Security
of
Parent or Acquisition Corp. There is no voting trust, agreement or arrangement
among any of the beneficial holders of Parent Common Stock affecting the
nomination or election of directors or the exercise of the voting rights of
Parent Common Stock. All outstanding shares of the capital stock of Parent
are
validly issued and outstanding, fully paid and non-assessable, none of such
shares have been issued in violation of the preemptive rights of any person,
and
all were issued in transactions that were (A) exempt from the registration
and
prospectus delivery requirements of the Securities Act, (B) registered or
qualified (or were exempt from registration or qualification) under the
registration or qualification requirements of all applicable state securities
laws and (C) accomplished in conformity with all other applicable securities
laws.
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3.5 Acquisition
Corp. Acquisition Corp.
is a
wholly-owned subsidiary of Parent that was formed specifically for the purpose
of the Merger and that has not conducted any business or acquired any property,
and will not conduct any business or acquire any property prior to the Closing
Date, except as approved by the Company in preparation for and otherwise in
connection with the transactions contemplated by this Agreement, the Certificate
of Merger and the other agreements to be made pursuant to or in connection
with
this Agreement and the Certificate of Merger.
3.6 Validity
of Shares.
The
457,600 shares of Parent Common Stock issued and outstanding as of the date
hereof are fully paid and non-assessable and to the Company’s best knowledge are
held by non-affiliates of the Parent. All of such shares have been registered
on
the Parent’s Registration Statement on Form SB-2 (No. 333-136791) which is
effective with the SEC and no stop orders have been issued against such
registration statement. The shares of Parent Common Stock to be issued at the
Closing pursuant to Section 1.5(a)(ii) hereof, when issued and delivered in
accordance with the terms hereof and the Certificate of Merger, shall be duly
and validly issued, fully paid and non-assessable. Based in part on the
representations and warranties of the Stockholders as contemplated by Section
4
hereof and assuming the accuracy thereof, the issuance of the Parent Common
Stock upon the Merger pursuant to Section 1.5(a)(ii), will be exempt from the
registration and prospectus delivery requirements of the Securities Act and
from
the qualification or registration requirements of any applicable state blue
sky
or securities laws.
3.7 SEC
Reporting and Compliance.
(a) Parent filed a registration statement on Form SB-2 under the Securities
Act on August 21, 2006 which became effective on February 6, 2007. Since that
date, Parent has filed with the Commission all registration statements, periodic
reports and other forms and reports required to be filed pursuant to the
Exchange Act. Parent has not filed with the Commission a certificate on Form
15
pursuant to Rule 12h-3 of the Exchange Act.
(a) Parent
has delivered to the Company true and complete copies of the registration
statements and other forms and reports (collectively, the “Parent
SEC Documents”)
filed
by the Parent with the Commission. The Parent SEC Documents, as of their
respective dates, complied in all material respects with the requirements of
the
Securities Act or Exchange Act and the rules and regulations of the Commission
promulgated thereunder and did not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained therein not misleading.
-11-
(b) Parent
has not filed, and nothing has occurred with respect to which Parent would
be
required to file, any report on Form 8-K since March 15, 2007. Prior to and
until the Closing, Parent will provide to the Company copies of any and all
amendments or supplements to the Parent SEC Documents filed with the Commission
since March 15, 2007, and all subsequent registration statements and reports
filed by Parent subsequent to the filing of the Parent SEC Documents with the
Commission and any and all subsequent forms or reports filed by the Parent
with
the Commission or delivered to the stockholders of Parent.
(c) Parent
is
not an investment company within the meaning of Section 3 of the Investment
Company Act.
(d) The
shares of Parent Common Stock are approved for quotation on the Over-the-Counter
(OTC) Bulletin Board under the symbol “CVAH” and Parent is in compliance in all
material respects with all rules and regulations of the OTC Bulletin Board
applicable to it and the Parent Common Stock.
(e) Between
the date hereof and the Closing Date, Parent shall continue to satisfy the
filing requirements of the Exchange Act and all other requirements of applicable
securities laws and rules and the OTC Bulletin Board.
(f) The
Parent SEC Documents include all certifications and statements required of
it,
if any, by (i) Rule 13a-14 or 15d-14 under the Exchange Act, and (ii) 18 U.S.C.
Section 1350 (Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), and each of such
certifications and statements contain no qualifications or exceptions to the
matters certified therein other than a knowledge qualification, permitted under
such provision, and have not been modified or withdrawn and neither the Company
nor any of its officers has received any notice from the SEC or any other
governmental entity questioning or challenging the accuracy, completeness,
form
or manner of filing or submission of such certifications or
statements.
(g) Parent
has otherwise complied with the Securities Act, Exchange Act and all other
applicable federal and
state
securities laws.
3.8 Financial
Statements.
The
balance sheets, and statements of income, changes in financial position and
stockholders’ equity contained in the Parent SEC Documents (the “Parent
Financial Statements”)
(i)
have been prepared in accordance with GAAP applied on a basis consistent with
prior periods (and, in the case of unaudited financial information, on a basis
consistent with year-end audits), (ii) are in accordance with the books and
records of the Parent, and (iii) present fairly in all material respects the
financial condition of the Parent at the dates therein specified and the results
of its operations and changes in financial position for the periods therein
specified.
3.9 Governmental
Consents.
All
material consents, approvals, orders, or authorizations of, or registrations,
qualifications, designations, declarations, or filings with any federal or
state
governmental authority on the part of Parent or Acquisition Corp. required
in
connection with the consummation of the Merger shall have been obtained prior
to, and be effective as of, the Closing.
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3.10 Compliance
with Laws and Other Instruments.
The
execution, delivery and performance by Parent and/or Acquisition Corp. of this
Agreement, the Certificate of Merger and the other agreements to be made by
Parent or Acquisition Corp. pursuant to or in connection with this Agreement
or
the Certificate of Merger and the consummation by Parent and/or Acquisition
Corp. of the transactions contemplated by the Merger Documents will not cause
Parent and/or Acquisition Corp. to violate or contravene (i) any provision
of
law, (ii) any rule or regulation of any agency or government, (iii) any order,
judgment or decree of any court, or (iv) any provision of their respective
certificates of incorporation or by-laws as amended and in effect on and as
of
the Closing Date and will not violate or be in conflict with, result in a breach
of or constitute (with or without notice or lapse of time, or both) a default
under any material indenture, loan or credit agreement, deed of trust, mortgage,
security agreement or other agreement or contract to which Parent or Acquisition
Corp. is a party or by which Parent and/or Acquisition Corp. or any of their
respective properties are
bound
or affected, except where any such violation, conflict, breach or default could
not reasonably be expected to have a material and adverse effect on the
Condition of Parent or Acquisition Corp., and (v) will not result in the
creation or imposition of any material Lien upon any property or asset of Parent
or Acquisition Corp.
3.11 Binding
Obligations.
The
Merger Documents constitute the legal, valid and binding obligations of the
Parent and Acquisition Corp., and are enforceable against the Parent and
Acquisition Corp., in accordance with their respective terms, except as such
enforcement is limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity.
3.12 Absence
of Undisclosed Liabilities.
Neither
Parent nor Acquisition Corp. has any material obligation or liability (whether
accrued, absolute, contingent, liquidated or otherwise, whether due or to become
due), arising out of any transaction entered into at or prior to the Closing,
except (a) as disclosed in the Parent SEC Documents, (b) to the extent set
forth
on or reserved against in the balance sheet of Parent as of December 31, 2006
(the “Parent
Balance Sheet”)
or the
Notes to the Parent Financial Statements, (c) current liabilities incurred
and
obligations under agreements entered into in the usual and ordinary course
of
business since December 31, 2006 (the “Parent
Balance Sheet Date”),
none
of which (individually or in the aggregate) materially and adversely affects
the
condition (financial or otherwise), properties, assets, liabilities, business
operations, results of operations or prospects of the Parent or Acquisition
Corp., taken as a whole (the “Condition
of the Parent”),
and
(d) by the specific terms of any written agreement, document or arrangement
attached as an exhibit to the Parent SEC Documents. Without
limiting the foregoing, Parent has no Indebtedness for Borrowed Money. There
is
no real property owned or leased by Parent. The liabilities of the Parent are
not in excess of $10,000.
3.13 Parent
Contracts.
The
Parent SEC Reports contain true and accurate copies of all agreements required
to be filed as material contracts under Item 601(b)(10) of Regulation S-B under
the Securities Act and the Exchange Act (the “Parent
Material Contracts”).
To
the knowledge of Parent, no party to any Parent Material Contract has a claim
against Parent in respect of any breach or default thereunder. Prior to the
Effective Time, each of the Parent Material Contracts shall be terminated and
of
no further force and effect. As of the date hereof, no Parent Material Contracts
are in force and effect.
-13-
3.14 Changes. Since
December 31, 2006, no event has occurred which could be reasonably anticipated
to have a material adverse effect on the condition of the Company.
3.15 Litigation.
There
is no legal action, suit, arbitration or other legal, administrative or other
governmental proceeding pending or, to the best knowledge of the Parent,
threatened against or affecting the Parent or its properties, assets or business
that might reasonably be expected to materially and adversely affect the
Condition of the Parent. The Parent is not in default with respect to any order,
writ, judgment, injunction, decree, determination or award of any court or
any
governmental agency or instrumentality or arbitration authority.
3.16 Employee
Benefit Plans; ERISA.
The
Parent has no “employee benefit plans” (within the meaning of Section 3(3) of
the ERISA) nor any other employee benefit or fringe benefit arrangements,
practices, contracts, policies or programs of every type.
3.17 Tax
Returns and Audits.
All
required federal, state and local Tax Returns of the Parent have been accurately
prepared and duly and timely filed, and all federal, state and local Taxes
required to be paid with respect to the periods covered by such returns have
been paid. The Parent is not and has not been delinquent in the payment of
any
Tax. The reserves for Taxes reflected on the Parent Financial Statement are
and
will be sufficient for the payment of all unpaid Taxes payable by the Parent
The
Parent has made adequate provisions on its books of account for all Taxes with
respect to its business, properties and operations for such period. The Parent
has withheld or collected from each payment made to each of its employees the
amount of all taxes (including, but not limited to, federal, state and local
income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment
Tax Act taxes) required to be withheld or collected therefrom.
3.18 Interested
Party Transactions.
Except
as disclosed in the Parent SEC Documents, no officer, director or stockholder
of
the Parent or any Affiliate or “associate” (as such term is defined in Rule 405
under the Securities Act) of any such Person or Parent has or has had, either
directly or indirectly, (a) an interest in any Person that (i) furnishes or
sells services or products that are furnished or sold or are proposed to be
furnished or sold by the Parent or (ii) purchases from or sells or furnishes
to
Parent any goods or services, or (b) a beneficial interest in any contract
or
agreement to which Parent is a party or by which it may be bound or
affected.
3.19 Questionable
Payments.
Neither
Parent, Acquisition Corp. nor, to the knowledge of Parent, any director,
officer, agent, employee or other Person associated with or acting on behalf
of
Parent or Acquisition Corp., has used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; made any direct or indirect unlawful payments to government
officials or employees from corporate funds; established or maintained any
unlawful or unrecorded fund of corporate monies or other assets; made any false
or fictitious entries on the books of record of any such corporations; or made
any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
-14-
3.20 Obligations
to or by Stockholders.
Except
as disclosed in the Parent SEC Documents, Parent has no liability or obligation
or commitment to any stockholder of Parent or any Affiliate or “associate” (as
such term is defined in Rule 405 under the Securities Act) of any stockholder
of
Parent, nor does any stockholder of Parent or any such Affiliate or associate
have any liability, obligation or commitment to Parent.
3.21 Employees.
Other
than pursuant to ordinary arrangements of employment compensation, Parent is
not
under any obligation or liability to any officer, director, employee or
Affiliate of Parent.
3.22 No
General Solicitation.
In
issuing Parent Common Stock in the Merger hereunder, neither Parent nor anyone
acting on its behalf has offered to sell the Parent Common Stock by any form
of
general solicitation or advertising.
3.23 Records.
The
books of accounts, corporate records and minute books of Parent and Acquisition
Corp. are complete and correct in all material respects. Copies of all such
books of account, corporate records and minute books of Parent and Acquisition
Corp. will be provided to the Company at Closing.
4. Representations,
Warranties and Covenants of the Shareholders.
Promptly after the Effective Time, Parent shall cause to be mailed to each
holder of record of Company Common Stock, preferred stock and holders of Company
warrants that was converted pursuant to Section 1.5 hereof into the right to
receive Parent Common Stock a letter of transmittal (“Letter
of Transmittal”)
in
substantially the form attached hereto as Schedule
4
which
shall contain additional representations, warranties and covenants of such
Shareholder, including without limitation, that (i) such Shareholder has full
right, power and authority to deliver such Company Common Stock and Letter
of
Transmittal, (ii) the delivery of such Company Common Stock will not violate
or
be in conflict with, result in a breach of or constitute a default under, any
indenture, loan or credit agreement, deed of trust, mortgage, security agreement
or other agreement or instrument to which such Shareholder is bound or affected,
(iii) such Shareholder has good, valid and marketable title to all shares of
Company Common Stock indicated in such Letter of Transmittal and that such
Shareholder is not affected by any voting trust, agreement or arrangement
affecting the voting rights of such Company Common Stock, (iv) such Shareholder
is an “accredited investor,” as such term is defined in Regulation D under the
Securities Act or a sophisticated investor who would qualify to purchase Parent
Common Stock and that such Shareholder is acquiring Parent Common Stock for
investment purposes, and not with a view to selling or otherwise distributing
such Parent Common Stock in violation of the Securities Act or the securities
laws of any state, and (v) such Shareholder has had an opportunity to ask and
receive answers to any questions such Shareholder may have had concerning the
terms and conditions of the Merger and the Parent Common Stock and has obtained
any additional information that such Shareholder has requested. Delivery shall
be effected, and risk of loss and title to the Parent Common Stock shall pass,
only upon delivery to the Parent (or an agent of the Parent) of (x) certificates
evidencing ownership thereof as contemplated by Section 1.6 hereof (or affidavit
of lost certificate), and (y) the Letter of Transmittal containing the
representations, warranties and covenants contemplated by this Section
4.
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5. Conduct
of Businesses Pending the Merger.
5.1 Conduct
of Business by the Company Pending the Merger
.
Prior
to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree
in writing or as otherwise contemplated by this Agreement:
(i) the
business of the Company shall be conducted only in the ordinary
course;
(ii) the
Company shall not (A) directly or indirectly redeem, purchase or otherwise
acquire or agree to redeem, purchase or otherwise acquire any shares of its
capital stock; (B) amend its Certificate of Incorporation or By-laws; or (C)
split, combine or reclassify the outstanding Company Common Stock or declare,
set aside or pay any dividend payable in cash, stock or property or make any
distribution with respect to any such stock;
(iii) the
Company shall not (A) issue or agree to issue any additional shares of, or
options, warrants or rights of any kind to acquire any shares of, Company Common
Stock; (B) acquire or dispose of any fixed assets or acquire or dispose of
any
other substantial assets other than in the ordinary course of business; (C)
incur additional Indebtedness or any other liabilities or enter into any other
transaction other than in the ordinary course of business; (D) enter into any
contract, agreement, commitment or arrangement with respect to any of the
foregoing; or (E) except as contemplated by this Agreement, enter into any
contract, agreement, commitment or arrangement to dissolve, merge, consolidate
or enter into any other material business combination; and
(iv) the
Company shall use its best efforts to preserve intact the business organization
of the Company, to keep available the service of its present officers and key
employees, and to preserve the good will of those having business relationships
with it.
5.2 Conduct
of Business by Parent and Acquisition Corp. Pending the Merger.
Prior
to the Effective Time, unless the Company shall otherwise agree in writing
or as
otherwise contemplated by this Agreement:
(i) the
business of Parent and Acquisition Corp. shall be conducted only in the ordinary
course; provided,
however,
that
Parent shall take the steps necessary to have discontinued its existing business
without liability to Parent or Acquisition Corp. as of the Closing
Date;
(ii) neither
Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase
or otherwise acquire or agree to redeem, purchase or otherwise acquire any
shares of its capital stock; (B) amend its certificate of incorporation or
by-laws or (C) split, combine or reclassify its capital stock or declare, set
aside or pay any dividend payable in cash, stock or property or make any
distribution with respect to such stock; and
-16-
(iii) neither
Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional
shares of, or options, warrants or rights of any kind to acquire shares of,
its
capital stock; (B) acquire or dispose of any assets other than in the ordinary
course of business (except for dispositions in connection with Section 5.2(i)
hereof); (C) incur additional Indebtedness or any other liabilities or enter
into any other transaction except in the ordinary course of business; (D) enter
into any contract, agreement, commitment or arrangement with respect to any
of
the foregoing, or (E) except as contemplated by this Agreement, enter into
any
contract, agreement, commitment or arrangement to dissolve, merge; consolidate
or enter into any other material business contract or enter into any
negotiations in connection therewith.
6. Additional
Agreements.
6.1 Access
and Information.
The
Company, Parent and Acquisition Corp. shall each afford to the other and to
the
other’s accountants, counsel and other representatives full access during normal
business hours throughout the period prior to the Effective Time of all of
its
properties, books, contracts, commitments and records (including but not limited
to tax returns) and during such period, each shall furnish promptly to the
other
all information concerning its business, properties and personnel as such other
party may reasonably request, provided that no investigation pursuant to this
Section 6.1 shall affect any representations or warranties made herein. Each
party shall hold, and shall cause its employees and agents to hold, in
confidence all such information (other than such information which (i) becomes
generally available to the public other than as a result of a disclosure by
such
party or its directors, officers, managers, employees, agents or advisors,
or
(ii) becomes available to such party on a non-confidential basis from a source
other than a party hereto or its advisors, provided that such source is not
known by such party to be bound by a confidentiality agreement with or other
obligation of secrecy to a party hereto or another party until such time as
such
information is otherwise publicly available; provided,
however,
that
(A) any such information may be disclosed to such party’s directors, officers,
employees and representatives of such party’s advisors who need to know such
information for the purpose of evaluating the transactions contemplated hereby
(it being understood that such directors, officers, employees and
representatives shall be informed by such party of the confidential nature
of
such information and agree to hold such information confidential pursuant to
the
terms hereof), (B) any disclosure of such information may be made as to which
the party hereto furnishing such information has consented in writing, and
(C)
any such information may be disclosed pursuant to a judicial, administrative
or
governmental order or request; provided,
however,
that
the requested party will promptly so notify the other party so that the other
party may seek a protective order or appropriate remedy and/or waive compliance
with this Agreement and if such protective order or other remedy is not obtained
or the other party waives compliance with this provision, the requested party
will furnish only that portion of such information which is legally required
and
will exercise its best efforts to obtain a protective order or other reliable
assurance that confidential treatment will be accorded the information
furnished. If this Agreement is terminated, each party will deliver to the
other
all documents and other materials (including copies) obtained by such party
or
on its behalf from the other party as a result of this Agreement or in
connection herewith, whether so obtained before or after the execution
hereof.
-17-
6.2 Additional
Agreements.
Subject
to the terms and conditions herein provided, each of the parties hereto agrees
to use its commercially reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including using its commercially
reasonable efforts to satisfy the conditions precedent to the obligations of
any
of the parties hereto to obtain all necessary waivers, and to lift any
injunction or other legal bar to the Merger (and, in such case, to proceed
with
the Merger as expeditiously as possible). In order to obtain any necessary
governmental or regulatory action or non-action, waiver, consent, extension
or
approval, each of Parent, Acquisition Corp. and the Company agrees to take
all
reasonable actions and to enter into all reasonable agreements as may be
necessary to obtain timely governmental or regulatory approvals and to take
such
further action in connection therewith as may be necessary. In case at any
time
after the Effective Time any further action is necessary or desirable to carry
out the purposes of this Agreement, the proper officers and/or directors of
Parent, Acquisition Corp. and the Company shall take all such necessary
action.
6.3 Publicity.
No
party shall issue any press release or public announcement pertaining to the
Merger that has not been agreed upon in advance by Parent and the Company,
except as Parent reasonably determines to be necessary in order to comply with
the rules of the Commission or of the principal trading exchange or market
for
Parent Common Stock, provided that in such case Parent will use its best efforts
to allow the Company to review and approve (such approval not to be unreasonably
withheld or delayed) any same prior to its release.
6.4 Appointment
of Directors.
Immediately upon the Effective Time, Parent shall, subject to compliance with
Rule 14f-1 of the Exchange Act, accept the resignations of the current officers
and directors of Parent as provided by Section 7.2(e)(7) hereof, and shall
cause
the persons listed as directors in Schedule 6.4 hereto to be elected to the
Board of Directors of Parent. At the first annual meeting of Parent shareholders
and thereafter, the election of members of Parent’s Board of Directors shall be
accomplished in accordance with the by-laws of Parent.
7. Conditions
of Parties’ Obligations.
7.1 Company
Obligations.
The
obligations of Parent and Acquisition Corp. under this Agreement and the
Certificate of Merger are subject to the fulfillment at or prior to the Closing
of the following conditions, any of which may be waived in whole or in part
by
Parent.
(a) No
Errors, etc.
The
representations and warranties of the Company under this Agreement shall be
deemed to have been made again on the Closing Date and shall then be true and
correct in all material respects.
(b) Compliance
with Agreement.
The
Company shall have performed and complied in all material respects with all
agreements and conditions required by this Agreement to be performed or complied
with by it on or before the Closing Date.
(c) No
Default or Adverse Change.
There
shall not exist on the Closing Date any Default or Event of Default or any
event
or condition that, with the giving of notice or lapse of time, or both, would
constitute a Default or Event of Default, and since the Balance Sheet Date,
there shall have been no material adverse change in the Condition of the
Company.
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(d) Certificate
of Officers.
The
Company shall have delivered to Parent and Acquisition Corp. a certificate
dated
the Closing Date, executed on its behalf by the Chief Executive Officer and
Chief Financial Officer of the Company, certifying the satisfaction of the
conditions specified in paragraphs (a), (b) and (c) of this Section
7.1.
(e) No
Restraining Action.
No
action or proceeding before any court, governmental body or agency shall have
been threatened, asserted or instituted to restrain or prohibit, or to obtain
substantial damages in respect of, this Agreement or the Certificate of Merger
or the carrying out of the transactions contemplated by the Merger
Documents.
(f) Supporting
Documents.
Parent
and Acquisition Corp. shall have received the following:
(1) Copies
of
resolutions of the Board of Directors and the shareholders of the Company,
certified by the Secretary of the Company, authorizing and approving the
execution, delivery and performance of the Merger Documents and all other
documents and instruments to be delivered pursuant hereto and
thereto.
(2) A
certificate of incumbency executed by the Secretary of the Company certifying
the names, titles and signatures of the officers authorized to execute any
documents referred to in this Agreement and further certifying that the
Certificate of Incorporation and By-laws of the Company delivered to Parent
and
Acquisition Corp. at the time of the execution of this Agreement have been
validly adopted and have not been amended or modified.
(3) A
certificate, dated the Closing Date, executed by the Company’s Secretary,
certifying that, except for the filing of the Certificate of Merger: (i) all
consents, authorizations, orders and approvals of, and filings and registrations
with, any court, governmental body or instrumentality that are required for
the
execution and delivery of this Agreement and the Certificate of Merger and
the
consummation of the Merger shall have been duly made or obtained, and all
material consents by third parties that are required for the Merger have been
obtained; and (ii) no action or proceeding before any court, governmental body
or agency has been threatened, asserted or instituted to restrain or prohibit,
or to obtain substantial damages in respect of, this Agreement or the
Certificate of Merger or the carrying out of the transactions contemplated
by
the Merger Documents.
(4) Evidence
as of a recent date of the good standing and corporate existence of the Company
issued by the Secretary of State of the State of Delaware and evidence that
the
Company is qualified to transact business as a foreign corporation and is in
good standing in each state of the United States and in each other jurisdiction
where the character of the property owned or leased by it or the nature of
its
activities makes such qualification necessary.
-19-
(5) Such
additional supporting documentation and other information with respect to the
transactions contemplated hereby as Parent and Acquisition Corp. may reasonably
request.
(g) Proceedings
and Documents.
All
corporate and other proceedings and actions taken in connection with the
transactions contemplated hereby and all certificates, opinions, agreements,
instruments and documents mentioned herein or incident to any such transactions
shall be reasonably satisfactory in form and substance to Parent and Acquisition
Corp. The Company shall furnish to Parent and Acquisition Corp. such supporting
documentation and evidence of the satisfaction of any or all of the conditions
precedent specified in this Section 7.1 as Parent or its counsel may reasonably
request.
7.2 Parent
and Acquisition Corp. Obligations.
The
obligations of the Company under this Agreement and the Certificate of Merger
are subject to the fulfillment at or prior to the Closing of the conditions
precedent specified in paragraphs (e), (f) and (g) of Section 7.1 hereof and
the
following additional conditions:
(a) No
Errors, etc.
The
representations and warranties of Parent and Acquisition Corp. under this
Agreement shall be deemed to have been made again on the Closing Date and shall
then be true and correct in all material respects.
(b) Compliance
with Agreement.
Parent
and Acquisition Corp. shall have performed and complied in all material respects
with all agreements and conditions required by this Agreement and the
Certificate of Merger to be performed or complied with by them on or before
the
Closing Date.
(c) No
Default or Adverse Change.
There
shall not exist on the Closing Date any Default or Event of Default or any
event
or condition, that with the giving of notice or lapse of time, or both, would
constitute a Default of Event of Default, and since the Parent Balance Sheet
Date, there shall have been no material adverse change in the Condition of
the
Parent.
(d) Certificate
of Officers.
Parent
and Acquisition Corp. shall have delivered to the Company a certificate dated
the Closing Date, executed on their behalf by their respective Presidents or
other duly authorized officers, certifying the satisfaction of the conditions
specified in paragraphs (a), (b), and (c) of this Section 7.2.
(e) Supporting
Documents.
The
Company shall have received the following:
(1) Copies
of
resolutions of Parent’s and Acquisition Corp.’s respective board of directors
and the sole shareholder of Acquisition Corp., certified by their respective
Secretaries, authorizing and approving, to the extent applicable, the execution,
delivery and performance of this Agreement, the Certificate of Merger and all
other documents and instruments to be delivered by them pursuant hereto and
thereto.
(2) A
certificate of incumbency executed by the respective Secretaries of Parent
and
Acquisition Corp. certifying the names, titles and signatures of the officers
authorized to execute the documents referred to in paragraph (i) above and
further certifying that the certificates of incorporation and by-laws of Parent
and Acquisition Corp. appended thereto have not been amended or
modified.
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(3) A
certificate, dated the Closing Date, executed by the Secretary of each of the
Parent and Acquisition Corp., certifying that, except for the filing of the
Certificate of Merger: (i) all consents, authorizations, orders and approvals
of, and filings and registrations with, any court, governmental body or
instrumentality that are required for the execution and delivery of this
Agreement and the Certificate of Merger and the consummation of the Merger
shall
have been duly made or obtained, and all material consents by third parties
required for the Merger have been obtained; and (ii) no action or proceeding
before any court, governmental body or agency has been threatened, asserted
or
instituted to restrain or prohibit, or to obtain substantial damages in respect
of, this Agreement or the Certificate of Merger or the carrying out of the
transactions contemplated by any of the Merger Documents.
(4) A
certificate of Island Stock Transfer Corp., Parent’s transfer agent and
registrar, certifying as of the Closing Date, a true and complete list of the
names and addresses of the record owners of all of the outstanding shares of
Parent Common Stock, together with the number of shares of Parent Common Stock
held by each record owner.
(5) A
letter
from Parent’s transfer agent and registrar, setting forth that the number of
shares of Parent Common Stock that would be issued and outstanding as of the
Closing Date
(6) An
agreement in writing from Malone& ▇▇▇▇▇▇, PC in form and substance
reasonably satisfactory to the Company, to deliver copies of the audit opinions
with respect to any and all financial statements of Parent that had been audited
by such firm.
(7) (i)
The
executed resignations of ▇▇▇▇▇▇ ▇▇▇▇▇ an officer of Parent and (ii) executed
release from ▇▇▇▇▇▇ ▇▇▇▇▇ as an officer.
(8) Evidence
as of a recent date of the good standing and corporate existence of each of
the
Parent and Acquisition Corp. issued by the Secretary or Department of State
of
their respective states of incorporation and evidence that the Parent and
Acquisition Corp. are qualified to transact business as foreign corporations
and
are in good standing in each state of the United States and in each other
jurisdiction where the character of the property owned or leased by them or
the
nature of their activities makes such qualification necessary.
Such
additional supporting documentation and other information with respect to the
transactions contemplated hereby as the Company may reasonably
request.
(f) A
Certificate dated the Closing Date, executed by the CEO of the Parent,
certifying that the Parent has discontinued its existing business without
liability to Parent or Acquisition Corp. and transferred all assets and
liabilities away from Parent or Acquisition Corp.
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(g) Proceedings
and Documents.
All
corporate and other proceedings and actions taken in connection with the
transactions contemplated hereby and all certificates, opinions, agreements,
instruments and documents mentioned herein or incident to any such transactions
shall be satisfactory in form and substance to the Company. Parent and
Acquisition Corp. shall furnish to the Company such supporting documentation
and
evidence of satisfaction of any or all of the conditions specified in this
Section 7.2 as the Company may reasonably request.
(h) Stock
Split On
or
prior to the Closing the Parent shall effect a 21.85315 to one forward stock
split. All of the share numbers contained herein with respect to Parent Common
Stock reflect the forward stock split.
(i) CUSIP
Number
The
Parent shall apply for a new CUSIP Number to reflect the forward stock
split.
(j) Name
and Symbol
The
Parent shall change its name to MIT Holding, Inc. and shall apply for a change
in its symbol.
The
Company and Parent may waive compliance with any of the conditions precedent
specified in this Section 7.2.
8. Survival
of Representations and Warranties.
The
representations and warranties of the parties made in Sections 2 and 3 of this
Agreement (including the Schedules to the Agreement which are hereby
incorporated by reference) shall survive for six (6) months beyond the Effective
Time. This Section 8 shall not limit any claim for fraud or any covenant or
agreement of the parties which by its terms contemplates performance after
the
Effective Time.
9. Amendment
of Agreement.
This
Agreement and the Certificate of Merger may be amended or modified at any time
in all respects by an instrument in writing executed (i) in the case of this
Agreement by the parties hereto and (ii) in the case of the Certificate of
Merger by the parties thereto.
10. Definitions.
Unless
the context otherwise requires, the terms defined in this Section 10 shall
have
the meanings herein specified for all purposes of this Agreement, applicable
to
both the singular and plural forms of any of the terms herein
defined.
“Acquisition
Corp.”
shall
have the meaning assigned to it in the introductory paragraph of this
Agreement.
“Affiliate”
shall
mean any Person that directly or indirectly controls, is controlled by, or
is
under common control with, the indicated Person.
“Agreement”
shall
mean this Agreement.
“Balance
Sheet”
and
“Balance
Sheet Date”
shall
have the meanings assigned to such terms in Section 2.10 hereof.
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“Certificate
of Merger”
shall
have the meaning assigned to it in the second recital of this
Agreement.
“Closing”
and
“Closing
Date”
shall
have the meanings assigned to such terms in Section 11 hereof.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended.
“Commission”
shall
mean the U.S. Securities and Exchange Commission.
“Company”
shall
have the meaning assigned to it in the introductory paragraph of this
Agreement.
“Company
Common Stock”
shall
mean the Common Stock of the Company.
“Condition
of the Company”
shall
have the meaning assigned to it in Section 2.2 hereof.
“Condition
of the Parent”
shall
have the meaning assigned to it in Section 3.12 hereof.
“Default”
shall
mean a default or failure in the due observance or performance of any covenant,
condition or agreement on the part of the Company to be observed or performed
under the terms of this Agreement or the Certificate of Merger, if such default
or failure in performance shall remain unremedied for five (5)
days.
“Effective
Time”
shall
have the meaning assigned to it in Section 1.2 hereof.
“Employee
Benefit Plans”
shall
have the meaning assigned to it in Section 2.15 hereof.
“Environmental
Laws”
means
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. §§ 9601, et seq.; the Emergency Planning and Community Right-to-Know Act
of 1986, 42 U.S.C. §§ 11001, et seq.; the Resource Conservation and Recovery
Act, 42 U.S.C. §§ 6901, et seq.; the Toxic Substances Control Act, 15 U.S.C. §§
2601 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
§§ 136, et seq. and comparable state statutes dealing with the registration,
labeling and use of pesticides and herbicides; the Clean Air Act, 42 U.S.C.
§§
7401 et seq.; the Clean Water Act (Federal Water Pollution Control Act), 33
U.S.C. §§ 1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f, et seq.;
the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801, et seq.; as any
of the above statutes have been amended as of the date hereof, all rules,
regulations and policies promulgated pursuant to any of the above statutes,
and
any other foreign, federal, state or local law, statute, ordinance, rule,
regulation or policy governing environmental matters, as the same have been
amended as of the date hereof.
“Equity
Security”
shall
mean any stock or similar security of an issuer or any security (whether stock
or Indebtedness for Borrowed Money) convertible, with or without consideration,
into any stock or similar equity security, or any security (whether stock or
Indebtedness for Borrowed Money) carrying any warrant or right to subscribe
to
or purchase any stock or similar security, or any such warrant or
right.
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“ERISA”
shall
mean the Employee Retirement Income Securities Act of 1974, as
amended.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
“Event
of Default”
shall
mean (a) the failure of the Company to pay any Indebtedness for Borrowed Money,
or any interest or premium thereon, within five (5) days after the same shall
become due, whether such Indebtedness shall become due by scheduled maturity,
by
required prepayment, by acceleration, by demand or otherwise, (b) an event
of
default under any agreement or instrument evidencing or securing or relating
to
any such Indebtedness, or (c) the failure of the Company to perform or observe
any material term, covenant, agreement or condition on its part to be performed
or observed under any agreement or instrument evidencing or securing or relating
to any such Indebtedness when such term, covenant or agreement is required
to be
performed or observed.
“GAAP”
shall
mean generally accepted accounting principles in the United States, as in effect
from time to time.
“Hazardous
Material”
means
any substance or material meeting any one or more of the following criteria:
(a)
it is or contains a substance designated as or meeting the characteristics
of a
hazardous waste, hazardous substance, hazardous material, pollutant, contaminant
or toxic substance under any Environmental Law; (b) its presence at some
quantity requires investigation, notification or remediation under any
Environmental Law; or (c) it contains, without limiting the foregoing, asbestos,
polychlorinated biphenyls, petroleum hydrocarbons, petroleum derived substances
or waste, pesticides, herbicides, crude oil or any fraction thereof, nuclear
fuel, natural gas or synthetic gas.
“Indebtedness”
shall
mean any obligation of the Company which under generally accepted accounting
principles is required to be shown on the balance sheet of the Company as a
liability. Any obligation secured by a Lien on, or payable out of the proceeds
of production from, property of the Company shall be deemed to be Indebtedness
even though such obligation is not assumed by the Company.
“Indebtedness
for Borrowed Money”
shall
mean (a) all Indebtedness in respect of money borrowed including, without
limitation, Indebtedness which represents the unpaid amount of the purchase
price of any property and is incurred in lieu of borrowing money or using
available funds to pay such amounts and not constituting an account payable
or
expense accrual incurred or assumed in the ordinary course of business of the
Company, (b) all Indebtedness evidenced by a promissory note, bond or similar
written obligation to pay money, or (c) all such Indebtedness guaranteed by
the
Company or for which the Company is otherwise contingently liable.
“Investment
Company Act”
shall
mean the Investment Company Act of 1940, as amended.
-24-
“Knowledge”
and
“know”
means,
when referring to any person or entity, the actual knowledge of such person
or
entity of a particular matter or fact, and what that person or entity would
have
reasonably known after due inquiry. An entity will be deemed to have "knowledge"
of a particular fact or other matter if any individual who is serving, or who
has served, as an executive officer of such entity has actual "knowledge" of
such fact or other matter, or had actual "knowledge" during the time of such
service of such fact or other matter, or would have had "knowledge" of such
particular fact or matter after due inquiry.
“Letter
of Transmittal”
shall
have the meaning assigned to it in Section 4 hereof.
“Lien”
shall
mean any mortgage, pledge, security interest, encumbrance, lien or charge of
any
kind, including, without limitation, any conditional sale or other title
retention agreement, any lease in the nature thereof and the filing of or
agreement to give any financing statement under the Uniform Commercial Code
of
any jurisdiction and including any lien or charge arising by statute or other
law.
“Memorandum”
shall
have the meaning assigned to it in the fourth recital hereof.
“Merger”
shall
have the meaning assigned to it in Section 1.1 hereof.
“Merger
Documents”
shall
have the meaning assigned to it in Section 2.6 hereof.
“Parent”
shall
have the meaning assigned to it in the introductory paragraph of this
Agreement.
“Parent
Balance Sheet Date”
shall
have the meaning assigned to it in Section 3.12 hereof.
“Parent
Common Stock”
shall
mean the Common Stock, par value $.001 per share, of Parent.
“Parent
Financial Statements”
shall
have the meaning assigned to it in Section 3.8 hereof.
“Parent
SEC Documents”
shall
have the meaning assigned to it in Section 3.7 hereof.
“Permitted
Liens”
shall
mean (a) Liens for taxes and assessments or governmental charges or levies
not
at the time due or in respect of which the validity thereof shall currently
be
contested in good faith by appropriate proceedings; (b) Liens in respect of
pledges or deposits under workmen’s compensation laws or similar legislation,
carriers’, warehousemen’s, mechanics’, laborers’ and materialmens’ and similar
Liens, if the obligations secured by such Liens are not then delinquent or
are
being contested in good faith by appropriate proceedings; and (c) Liens
incidental to the conduct of the business of the Company that were not incurred
in connection with the borrowing of money or the obtaining of advances or
credits and which do not in the aggregate materially detract from the value
of
its property or materially impair the use made thereof by the Company in its
business.
-25-
“Person”
shall
include all natural persons, corporations, business trusts, associations,
limited liability companies, partnerships, joint ventures and other entities
and
governments and agencies and political subdivisions.
“Private
Placement”
shall
mean the private offering described in the recitals.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Shareholders”
shall
mean all of the shareholders of the Company owning a minimum of five percent
of
the outstanding common stock of the Company as of the Effective
Date.
“Surviving
Corporation”
shall
have the meaning assigned to it in Section 1.1 hereof.
“Tax”
or
“Taxes”
shall
mean (a) any and all taxes, assessments, customs, duties, levies, fees, tariffs,
imposts, deficiencies and other governmental charges of any kind whatsoever
(including, but not limited to, taxes on or with respect to net or gross income,
franchise, profits, gross receipts, capital, sales, use, ad valorem, value
added, transfer, real property transfer, transfer gains, transfer taxes,
inventory, capital stock, license, payroll, employment, social security,
unemployment, severance, occupation, real or personal property, estimated taxes,
rent, excise, occupancy, recordation, bulk transfer, intangibles, alternative
minimum, doing business, withholding and stamp), together with any interest
thereon, penalties, fines, damages costs, fees, additions to tax or additional
amounts with respect thereto, imposed by the United States (federal, state
or
local) or other applicable jurisdiction; (b) any liability for the payment
of
any amounts described in clause (a) as a result of being a member of an
affiliated, consolidated, combined, unitary or similar group or as a result
of
transferor or successor liability, including, without limitation, by reason
of
Regulation section 1.1502-6; and (c) any liability for the payments of any
amounts as a result of being a party to any Tax Sharing Agreement or as a result
of any express or implied obligation to indemnify any other Person with respect
to the payment of any amounts of the type described in clause (a) or
(b).
“Tax
Return”
shall
include all returns and reports (including elections, declarations, disclosures,
schedules, estimates and information returns (including Form 1099 and
partnership returns filed on Form 1065) required to be supplied to a Tax
authority relating to Taxes.
11. Closing.
The
closing of the Merger (the “Closing”)
shall
occur concurrently with the Effective Time (the “Closing
Date”).
The
Closing shall occur at the offices of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP referred to in
Section 13.1 hereof or such other time and place as the parties may agree.
At
the Closing, Parent shall present for delivery to each Stockholder the
certificate representing the Parent Common Stock to be issued pursuant to
Section 1.5(a)(ii) hereof to them pursuant to Sections 1.6 and 4 hereof. Such
presentment for delivery shall be against delivery to Parent and Acquisition
Corp. of the certificates, agreements and other instruments referred to in
Section 7.1 hereof, and the certificates representing all of the Common Stock
issued and outstanding immediately prior to the Effective Time. Parent will
deliver at such Closing to the Company the officers’ certificate referred to in
Section 7.2 hereof. All of the other documents and certificates and agreements
referenced in Section 7 will also be executed as described therein. At the
Effective Time, all actions to be taken at the Closing shall be deemed to be
taken simultaneously.
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12. Termination
Prior to Closing.
12.1 Termination
of Agreement.
This
Agreement may be terminated at any time prior to the Closing:
(a) By
the
mutual written consent of the Company, Acquisition Corp. and
Parent;
(b) By
the
Company, if Parent or Acquisition Corp. (i) fails to perform in any material
respect any of its agreements contained herein required to be performed by
it on
or prior to the Closing Date, (ii) materially breaches any of its
representations, warranties or covenants contained herein, which failure or
breach is not cured within thirty (30) days after the Company has notified
Parent and Acquisition Corp. of its intent to terminate this Agreement pursuant
to this paragraph (b);
(c) By
Parent
and Acquisition Corp., if the Company (i) fails to perform in any material
respect any of its agreements contained herein required to be performed by
it on
or prior to the Closing Date, (ii) materially breach any of its representations,
warranties or covenants contained herein, which failure or breach is not cured
within thirty (30) days after Parent or Acquisition Corp. has notified the
Company of its intent to terminate this Agreement pursuant to this paragraph
(c);
(d) By
either
the Company, on the one hand, or Parent and Acquisition Corp., on the other
hand, if there shall be any order, writ, injunction or decree of any court
or
governmental or regulatory agency binding on Parent, Acquisition Corp. or the
Company, which prohibits or materially restrains any of them from consummating
the transactions contemplated hereby, provided
that the
parties hereto shall have used their best efforts to have any such order, writ,
injunction or decree lifted, and the same shall not have been lifted within
ninety (90) days after entry, by any such court or governmental or regulatory
agency; or
(e) By
either
the Company, on the one hand, or Parent and Acquisition Corp., on the other
hand, if the Closing has not occurred on or prior to May 31, 2007, for any
reason other than delay or nonperformance of the party seeking such
termination.
12.2 Termination
of Obligations.
Termination of this Agreement pursuant to this Section 12 shall terminate all
obligations of the parties hereunder, except for the obligations under Sections
6.1 and 13.3; provided,
however,
that
termination pursuant to paragraphs (b) or (c) of Section 12.1 shall not relieve
the defaulting or breaching party or parties from any liability to the other
parties hereto.
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13. Miscellaneous.
13.1 Notices.
Any
notice, request or other communication hereunder shall be given in writing
and
shall be served either personally by overnight delivery or delivered by mail,
certified return receipt and addressed to the following addresses:
If
to
Parent or
Acquisition
Corp.: Convention
All Holdings, Inc.
| With a copy to: |
▇▇▇▇▇▇▇▇
▇▇▇▇▇, LLP
|
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
| If to the Company: |
MIT
Holding Inc.
|
▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
| With a copy to: |
▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, LLP
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Notices
shall be deemed received at the earlier of actual receipt or three (3) business
days following mailing. Counsel for a party (or any authorized representative)
shall have authority to accept delivery of any notice on behalf of such
party.
13.2 Entire
Agreement.
This
Agreement, including the schedules and exhibits attached hereto and other
documents referred to herein, contains the entire understanding of the parties
hereto with respect to the subject matter hereof. This Agreement supersedes
all
prior agreements and undertakings between the parties with respect to such
subject matter.
13.3 Expenses.
Each
party shall bear and pay all of the legal, accounting and other expenses
incurred by it in connection with the transactions contemplated by this
Agreement.
13.4 Time.
Time is
of the essence in the performance of the parties’ respective obligations herein
contained.
13.5 Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
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13.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and heirs; provided,
however,
that
neither party shall directly or indirectly transfer or assign any of its rights
hereunder in whole or in part without the written consent of the others, which
may be withheld in its sole discretion, and any such transfer or assignment
without said consent shall be void.
13.7 No
Third Parties Benefited.
This
Agreement is made and entered into for the sole protection and benefit of the
parties hereto, their successors, assigns and heirs, and no other Person shall
have any right or action under this Agreement.
13.8 Counterparts.
This
Agreement may be executed in one or more counterparts, with the same effect
as
if all parties had signed the same document. Each such counterpart shall be
an
original, but all such counterparts together shall constitute a single
agreement.
13.9 Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York. This Agreement and the transactions contemplated
hereby shall be subject to the exclusive jurisdiction of the courts of New
York,
New York. The parties to this Agreement agree that any breach of any term or
condition of this Agreement or the transactions contemplated hereby shall be
deemed to be a breach occurring in the State of New York by virtue of a failure
to perform an act required to be performed in the State of New York. The parties
to this Agreement irrevocably and expressly agree to submit to the jurisdiction
of the courts of the State of New York for the purpose of resolving any disputes
among the parties relating to this Agreement or the transactions contemplated
hereby. The parties irrevocably waive, to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of
any
suit, action or proceeding arising out of or relating to this Agreement and
the
transactions contemplated hereby, or any judgment entered by any court in
respect hereof brought in New York, New York, and further irrevocably waive
any
claim that any suit, action or proceeding brought in New York, New York has
been
brought in an inconvenient forum. With respect to any action before the above
courts, the parties hereto agree to service of process by certified or
registered United States mail, postage prepaid, addressed to the party in
question.
(Signature
Page Follows)
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement to be binding and effective as
of
the day and year first above written.
|
PARENT:
|
||
|
CONVENTION
ALL HOLDINGS, INC.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ |
||
| Title: CEO | ||
| ACQUISITION CORP.: | ||
| MIT CVAH ACQUISITION CORP. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name: |
||
| Title: | ||
| THE COMPANY: | ||
| MIT HOLDING, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
|
Title:
President & CEO
|
||
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