AGREEMENT AND PLAN OF MERGER Among Jump’n Jax, Inc., CuraTech Acquisitions, Inc., and MedaCure International, Inc.
AGREEMENT
AND PLAN OF MERGER
Among
Jump’n
Jax, Inc.,
CuraTech
Acquisitions, Inc.,
and
MedaCure
International, Inc.
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (the
“Agreement”) is
made
and entered into as of this 22nd
day of
June 2006 by and among Jump’n
Jax, Inc.,
a Utah
corporation (“Jump’n
Jax”);
CuraTech
Acquisitions, Inc.,
a
Nevada corporation (“Merger
Sub”);
and
MedaCure
International, Inc.,
a
Nevada corporation (“MedaCure”).
WHEREAS,
Jump’n
Jax intends to change its state of domicile from Utah to Nevada following the
execution of this Agreement;
WHEREAS,
Jump’n
Jax desires to acquire MedaCure by way of a merger transaction whereby Merger
Sub will be merged with and into MedaCure and 100% of the issued and outstanding
shares of MedaCure common stock will be exchanged for shares of Jump’n Jax
common stock (the “Merger”),
whereupon MedaCure will be the surviving corporation and will become the wholly
owned subsidiary of Jump’n Jax (Merger Sub and MedaCure are collectively
referred to herein as the “Constituent
Corporations”);
WHEREAS,
the
boards of directors of Jump’n Jax, Merger Sub and MedaCure, respectively, deem
it advisable and in the best interest of each entity and their respective
stockholders that Merger Sub merges with and into MedaCure pursuant to terms
and
conditions of this Agreement and the Certificate of Merger (in the form attached
hereto as Attachment “A”) and pursuant to applicable provisions of law (such
transaction is hereafter referred to as the “Merger”);
and
WHEREAS,
each of
the parties to this Agreement desires to make certain representations,
warranties and agreements in connection with the transactions contemplated
herein and also to prescribe various conditions thereto.
NOW
THEREFORE,
in
consideration of the premises, mutual covenants set out herein and other good
and valuable consideration, the sufficiency of which is hereby acknowledged,
the
parties agree as follows:
SECTION
1 Acquisition
of MedaCure International, Inc.
The
parties to this Agreement do hereby agree that prior to the Closing and
Effective time of the Merger (the terms “Closing”
and
“Effective
Time of the Merger”
are
defined in Section 7 hereof), Jump’n Jax will change its state of domicile from
Utah to Nevada. The parties hereto further agree that at the Closing of this
Agreement, Merger Sub will be merged with and into MedaCure upon the terms
and
conditions set forth herein and, due to the fact that Jump’n Jax will change its
domicile to Nevada prior to the Closing, in accordance with the provisions
of
the Nevada Revised Statutes (“NRS”),
and
the stockholders of MedaCure will exchange their MedaCure common stock for
11,579,167 shares of Jump’n Jax’s authorized, but previously unissued common
stock (post-split after taking into consideration the forward stock split to
be
effected by Jump’n Jax as per Section 2(d) below), on a one share for one share
basis. It is the intention of the parties hereto that this transaction qualifies
as a tax-free reorganization under Section 368(a)(2)(E) of the Internal Revenue
Code of 1986, as amended, and related sections thereunder.
SECTION
2 Terms
of Merger.
In
accordance with the provisions of this Agreement and the requirements of
applicable law, at the Closing of this Agreement, Merger Sub will be merged
with
and into MedaCure as of the Effective Time of the Merger. MedaCure will be
the
surviving corporation (hereinafter sometimes referred to as the “Surviving
Corporation”)
and
the separate existence of Merger Sub will cease at the Effective Time of the
Merger. MedaCure, as the Surviving Corporation, will succeed to and assume
all
the rights and obligations of Merger Sub in accordance with the NRS, as
described below. Consummation of the Merger will be upon the following terms
and
subject to the conditions set forth herein:
2
(a) Corporate
Existence.
Commencing at the Effective Time of the Merger, the separate corporate existence
of Merger Sub will cease and the Surviving Corporation will continue its
corporate existence as a Nevada corporation; and
|
(i)
|
it
will thereupon and thereafter possess all rights, privileges, powers,
franchises and property (real, personal and mixed) of each of the
Constituent Corporations;
|
|
(ii)
|
all
debts due to either of the Constituent Corporations, on whatever
account,
all causes in action and all other things belonging to either of
the
Constituent Corporations will, except as otherwise set forth herein,
be
taken and deemed to be transferred to and will be vested in the Surviving
Corporation by virtue of the Merger without further act or deed;
and
|
|
(iii)
|
all
rights of creditors and all liens, if any, upon any property of any
of the
Constituent Corporations will be preserved unimpaired, limited in
lien to
the property affected by such liens immediately prior to the Effective
Time of the Merger, and all debts, liabilities and duties of the
Constituent Corporations will thenceforth attach to the Surviving
Corporation.
|
(b) Effective
Time of the Merger.
At the
Effective Time of the Merger,
|
(i)
|
the
Certificate of Incorporation and the Bylaws of MedaCure, as existing
and
in effect immediately prior to the Effective Time of the Merger,
will be
and remain the Certificate of Incorporation and Bylaws of the Surviving
Corporation; and
|
|
(ii)
|
the
members of the Board of Directors of MedaCure holding office immediately
prior to the Effective Time of the Merger will resign as directors
and
executive officers, effective at the Effective Time of the Merger,
and
will be replaced by those persons set forth in Section 2(f)
below.
|
(c) Conversion
of Securities.
At the
Effective Time of the Merger and without any action on the part of Jump’n Jax,
Merger Sub, MedaCure or the holders of any of the securities of any of these
entities, each of the following will occur:
|
(i)
|
The
11,579,167 shares of MedaCure common stock issued and outstanding
immediately prior to the Effective Time of the Merger, will be converted
into the right to receive an aggregate of 11,579,167 shares of Jump’n Jax
common stock, which shares will reflect the four shares for one share
forward stock split to be effected by Jump’n Jax prior to the Closing of
the Merger as depicted in Section 2(d) below. Accordingly, each one
(1)
share of MedaCure common stock is to be converted into the right
to
receive one (1) share of post-split Jump’n Jax common stock (the
“Conversion
Ratio”).
No fraction of any share of Jump’n Jax common stock will be issued to any
former holder of MedaCure common stock; rather, the number of shares
of
Jump’n Jax common stock otherwise issuable, if other than a whole number,
will be rounded to the nearest whole number. The holders of such
certificates previously evidencing shares of MedaCure common stock
outstanding immediately prior to the Effective Time of the Merger
will
cease to have any rights with respect to such shares of MedaCure
common
stock, except as otherwise provided herein or by
law.
|
|
(ii)
|
Any
shares of MedaCure capital stock held in the treasury of MedaCure
immediately prior to the Effective Time of the Merger will automatically
be canceled and extinguished without any conversion thereof and no
payment
will be made with respect thereto. At the Effective Time of the Merger,
the stock transfer books of MedaCure will be closed and thereafter,
there
will be no further registration of transfers on the stock transfer
books
of the Surviving Corporation of any shares of MedaCure common stock
which
were outstanding immediately prior to the Effective
Time.
|
3
|
(iii)
|
Each
one share of common stock of Merger Sub issued and outstanding immediately
prior to the Effective Time of the Merger will remain in existence
as one
share of common stock of the Surviving Corporation, which will be
owned by
Jump’n Jax.
|
|
(v)
|
The
807,602
shares of Jump’n Jax common stock currently issued and outstanding and to
be outstanding prior to the Merger, which shares will be increased
to
3,230,408 shares as a result of the four shares for one share forward
stock split described in Section 2(d) below, will remain issued and
outstanding after the Effective Time of the Merger.
|
(d) Forward
Stock Split.
Prior to
the Closing of the Merger, Jump’n Jax will take all requisite and necessary
action to effect a forward stock split (the “Forward
Stock Split”)
of its
issued and outstanding shares of common stock on a four (4) shares for one
(1)
share basis, the effect of which will increase the number of issued and
outstanding shares of Jump’n Jax common stock to 3,230,408 shares. In connection
with the Forward Stock Split, no fraction of any Jump’n Jax Shares will be
issued; rather, the number of shares otherwise issuable, if other than a whole
number, will be rounded up to the next whole number.
(e) Restricted
Securities.
|
(i)
|
None
of the shares of Jump’n Jax common stock into which the shares of MedaCure
common stock are to be converted will, at the Effective Time of the
Merger, be registered under the Securities Act of 1933, as amended
(the
“Securities
Act”)
but, rather, will be deemed to have been issued pursuant to an exemption
or exemptions therefrom (subject to the satisfaction of certain other
terms and conditions hereof) and will be considered “restricted
securities” within the meaning of Rule 144 promulgated under the
Securities Act. All shares of Jump’n Jax common stock to be issued
pursuant to this Agreement will be exempt from registration under
the
Securities Act pursuant to Section 4(2) of that Act and Regulation
D -
Rule 506 promulgated thereunder, and certificates representing the
shares
will bear a restrictive legend worded substantially as follows and
as may
otherwise be required:
|
“The
shares represented by this certificate have not been registered under the
Securities Act of 1933 (the “Act”) and are “restricted securities” as that term
is defined in Rule 144 under the Act. The shares may not be offered for sale,
sold or otherwise transferred unless first registered under the Act, except
pursuant to an applicable exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
corporation.”
| (ii) |
At
the Closing, Jump’n Jax will direct its transfer agent to record, as soon
as practicable after the Closing, the issuance of Jump’n Jax common stock
to the holders of MedaCure’s common stock pursuant to the provisions set
forth above. The transfer agent will annotate its records to reflect
the
restrictions on transfer embodied in the legend set forth above.
There
will be no requirement of Jump’n Jax to register under the Securities Act
any shares of Jump’n Jax common stock in connection with the
Merger.
|
4
(f) Other
Matters.
|
(i)
|
Immediately
prior to the Effective Time of the Merger, MedaCure will have no
more than
11,579,167 shares of MedaCure common stock issued and outstanding.
Immediately prior to the Effective Time of the Merger, Jump’n Jax will
have no more than 3,230,408 shares of Jump’n Jax common stock, post-split,
and no other series of common or preferred stock issued and
outstanding.
|
|
(ii)
|
Immediately
prior to the Closing, the Jump’n Jax Board of Directors will nominate and
elect to the Jump’n Jax Board, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, Lincoln
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, effective immediately upon the Closing,
and
Lane ▇. ▇▇▇▇▇▇▇▇, currently a directors and officers of Jump’n Jax, will
immediately prior to the Closing tender his resignation as a director
and
executive officer of Jump’n Jax, effective immediately upon the Closing.
All directors will serve in such capacities until the next meeting
of
stockholders of Jump’n Jax at which directors are
elected.
|
|
(iii)
|
Immediately
prior to the Closing, the MedaCure Board of Directors will nominate
and
elect to the MedaCure Board, Lincoln ▇▇▇▇▇▇▇ and those additional
directors to be designated by ▇▇. ▇▇▇▇▇▇▇, effective immediately
upon the
Closing, and MedaCure will cause all of the persons then serving
as
directors and/or officers of MedaCure immediately prior to the Closing
to
tender their resignations as directors and executive officers of
MedaCure,
effective immediately upon the
Closing.
|
|
(iv)
|
If,
at any time after the Closing, any further action is necessary or
desirable to carry out the purposes of this Agreement, the officers
and
directors of Jump’n Jax are hereby fully authorized to take, and will use
their reasonable efforts to take, all such lawful and necessary
action.
|
SECTION
3 Delivery
of Shares.
On or
as soon as practicable after the Effective Time of the Merger, MedaCure will
use
reasonable efforts to cause all holders of MedaCure’s common stock (the
“MedaCure
Stockholders”)
to
surrender to Jump’n Jax’s transfer agent for cancellation certificates
representing their shares of MedaCure’s common stock, against delivery of
certificates representing the shares of Jump’n Jax common stock for which
MedaCure’s common stock is to be converted in the Merger pursuant to Section 2
hereof. Each MedaCure Stockholder will be required, prior to or upon surrender
of their MedaCure common stock, to deliver to Jump’n Jax an “investment letter”
or other written instrument acceptable to the parties hereto, providing, among
other things, whether or not the investor is an “accredited investor” as defined
under Regulation D of the Securities Act. Until surrendered and exchanged as
herein provided, each outstanding certificate which, prior to the Effective
Time
of the Merger, represented MedaCure common stock, will be deemed for all
corporate purposes to evidence ownership of the same number of shares of Jump’n
Jax common stock into which the shares of MedaCure common stock represented
by
such MedaCure certificate will have been so converted.
SECTION
4 Representations
of MedaCure.
MedaCure hereby makes as of the date hereof and as of the Effective Time of
the
Merger, the following representations and warranties:
(a) MedaCure
is a validly established corporation under the laws of the State of Nevada
and
is in good standing and duly qualified to do business in that state and in
any
other state where required to be so qualified.
(b) MedaCure
has the requisite power and authority to enter into this Agreement together
with
such other agreements and documents requisite to this Agreement (the
“Transaction
Documents”),
to
which it is a party and to perform its obligations hereunder and thereunder.
The
execution and delivery of this Agreement and other Transaction Documents to
which it is a party and the consummation of the transactions contemplated hereby
and thereby have been, or will prior to the Closing and the Effective Time
of
the Merger be, duly authorized by MedaCure’s Board of Directors, and by the
MedaCure’s stockholders, if necessary. The execution of this Agreement and other
Transaction Documents does not materially violate or breach any material
agreement or contract to which MedaCure is a party, and MedaCure, to the extent
required, has, or will have by Closing, obtained all necessary approvals or
consents required by any agreement to which MedaCure is a party. The execution
and performance of this Agreement and other Transaction Documents will not
violate or conflict with any provision of MedaCure’s Articles of Incorporation
or Bylaws in effect as of the date hereof.
5
(c) As
of the
date of this Agreement, MedaCure’s authorized capital stock consists solely of
25,000,000 shares of common stock, $0.001 par value, of which 11,579,167 shares
are presently issued and outstanding. All outstanding shares of common stock
of
MedaCure are, and will be at the Closing, duly authorized, validly issued,
fully
paid and nonassessable. There are no existing options, calls, claims, warrants,
preemptive rights, registration rights or commitments of any character relating
to the issued or unissued capital stock or other securities of
MedaCure.
(d) The
audited financial statements of MedaCure for the period from the date of
inception, April 25, 2006 through May 31 2006, which have been delivered to
Jump’n Jax, or will be delivered prior to the Closing (hereinafter referred to
as the “MedaCure
Financial Statements”),
fairly present the financial condition of MedaCure as of the dates thereof
and
the results of its operations for the periods covered thereby. Other than as
set
forth in any schedule or exhibit attached hereto, and except as may otherwise
be
set forth or referenced herein, there are no material liabilities or
obligations, either fixed or contingent, not disclosed or referenced in the
MedaCure Financial Statements or in any exhibit or notes thereto other than
contracts or obligations occurring in the ordinary course of business since
May
31, 2006; and no such contracts or obligations occurring in the ordinary course
of business constitute liens or other liabilities which materially alter the
financial condition of MedaCure as reflected in the MedaCure Financial
Statements. MedaCure has, or will have at the Closing and which will be acquired
by MedaCure, good title to all assets, properties or contracts shown on the
MedaCure Financial Statements subject only to dispositions and other
transactions in the ordinary course of business, the disclosures set forth
therein and liens and encumbrances of record.
(e) Except
as
disclosed in writing to Jump’n Jax, since May 31, 2006, there has not been any
material adverse changes in the financial position of MedaCure except changes
arising in the ordinary course of business, which changes will not materially
and adversely affect the financial position of MedaCure.
(f) Except
as
and to the extent set forth in Attachment 4(f) annexed hereto, MedaCure is
not a
party to any material pending litigation or, to the knowledge of its executive
officers or directors (herein, the “MedaCure’s
Knowledge”),
any
governmental investigation or proceeding, not reflected in the MedaCure
Financial Statements and, to MedaCure’s Knowledge, no material litigation,
claims, assessments or any governmental proceedings are threatened in writing
against MedaCure.
(g) Neither
MedaCure nor any of its directors, executive officers, employees or agents,
nor
any other person acting on behalf of MedaCure, has directly or indirectly,
within the past five years, given or agreed to give any gift or similar benefit
to any person who is or may be in a position to help or hinder MedaCure’s
business, or assist it in connection with any actual or proposed transaction,
which (i) might be reasonably expected to subject it to any material damage
or
penalty in any action or to have a material adverse effect on MedaCure or its
business, assets, properties, financial condition or results of operations
(a
“Material
Adverse Effect”),
(ii)
if not given in the past, might have reasonably been expected to have had a
Material Adverse Effect, or (iii) if not continued in the future, might be
reasonably expected to have a Material Adverse Effect or to subject MedaCure
to
material suit or penalty in any action.
6
(h) MedaCure
has, or by the Effective Time of the Merger will have, filed all material tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed in the ordinary course of business and has (or will have)
paid or made adequate provisions for all taxes or assessments which have become
due as of the Effective Time of the Merger.
(i) MedaCure
has not materially breached any material agreement to which it is a party.
MedaCure has previously given Jump’n Jax copies of or access to all material
contracts, commitments and/or agreements to which MedaCure is a
party.
(j) To
MedaCure’s Knowledge, MedaCure has and at the Closing will have, disclosed in
writing to Jump’n Jax all events, conditions and facts materially affecting the
business, financial conditions (including any liabilities, contingent or
otherwise) or results of operations of MedaCure.
(k) To
MedaCure’s Knowledge, MedaCure is and has been in material compliance with, and
MedaCure has conducted any business previously owned or operated by it in
material compliance with, all applicable laws, orders, rules and regulations
of
all governmental bodies and agencies, including applicable securities laws
and
regulations and environmental laws and regulations, except where such
noncompliance in the aggregate has not had, and would not be reasonably expected
to have, a Material Adverse Effect. MedaCure has not received notice of any
noncompliance with the foregoing, nor is it aware of any claims or claims
threatened in writing in connection therewith.
(l) To
MedaCure’s Knowledge and without limiting the foregoing, (i) MedaCure and any
other person or entity for whose conduct MedaCure is legally held responsible
are and have been in material compliance with all applicable federal, state,
regional, local laws, statutes, ordinances, judgments, rulings and regulations
relating to any matters of pollution, protection of the environment, health
or
safety, or environmental regulation or control, and (ii) neither MedaCure nor
any other person for whose conduct MedaCure is legally held responsible has
manufactured, generated, treated, stored, handled, processed, released,
transported or disposed of any hazardous substance on, under, from or at any
of
MedaCure’s properties or in connection with MedaCure’s operations.
(m) Except
as, and to the extent specifically disclosed in this Agreement and as may be
specifically disclosed or reserved against it as to amount in the latest balance
sheet contained in the MedaCure Financial Statements, there is no basis for
any
assertion against MedaCure of any material liabilities or obligations of any
nature, whether absolute, accrued, contingent or otherwise and whether due
or to
become due, including, without limitation, any liability for taxes (including
e-commerce sales or other taxes), interest, penalties and other charges payable
with respect thereto. Neither the execution and delivery of this Agreement
or
other Transaction Documents to which it is a party, nor the consummation of
the
transactions contemplated hereby or thereby will:
|
(i)
|
result
in any payment (whether severance pay, unemployment compensation
or
otherwise) becoming due from MedaCure to any person or entity, including
without limitation any employee, director, officer or affiliate or
former
employee, director, officer or affiliate of
MedaCure;
|
|
(ii)
|
increase
any benefits otherwise payable to any person or entity, including
without
limitation any employee, director, officer or affiliate or former
employee, director, officer or affiliate of MedaCure;
or
|
|
(iii)
|
result
in the acceleration of the time of payment or vesting of any such
benefits.
|
(n) Except
as
disclosed to Jump’n Jax in writing and annexed hereto as Attachment 4(n), to
MedaCure’s Knowledge it has no material contracts, commitments, arrangements, or
understandings relating to its business, operations, financial condition,
prospects, or otherwise. For purposes of this Section 4(n), “material” means
payment or performance of a contract, commitment, arrangement or understanding
in the ordinary course of business, which is expected to involve payments from
MedaCure to any third party in excess of $100,000.
7
(o) To
MedaCure’s Knowledge, no representation or warranty by MedaCure contained in
this Agreement contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein not
misleading. Except as specifically indicated elsewhere in this Agreement, all
documents delivered by MedaCure in connection herewith have been and will be
complete originals, or exact copies thereof.
SECTION
5 Representations
of Jump’n Jax and Merger Sub.
Jump’n
Jax and Merger Sub hereby make jointly and severally, as of the date hereof
and
as of the Effective Time of the Merger, the following representations and
warranties:
(a) As
of the
date hereof and the Effective Time of the Merger, the shares of Jump’n Jax
common stock to be issued and delivered to the MedaCure Stockholders hereunder
will, when so issued and delivered, constitute duly authorized, validly and
legally issued, fully-paid, nonassessable shares of Jump’n Jax common stock,
free of all liens and encumbrances.
(b) Each
of
Jump’n Jax and Merger Sub has the requisite corporate power to enter into this
Agreement and to perform its respective obligations hereunder. The execution
and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been or will be, prior to the Closing and the Effective Time of
the
Merger, duly authorized by the respective Boards of Directors of Jump’n Jax and
Merger Sub and by Jump’n Jax as the sole stockholder of Merger Sub. The
execution and performance of this Agreement will not constitute a material
breach of any agreement, indenture, mortgage, license or other instrument or
document to which Jump’n Jax or Merger Sub is a party or to which it is
otherwise subject and will not violate any judgment, decree, order, writ, law,
rule, statute, or regulation applicable to Jump’n Jax, Merger Sub or their
properties. The execution and performance of this Agreement will not violate
or
conflict with any provision of the respective Certificates of Incorporation
or
Bylaws of either Jump’n Jax or Merger Sub.
(c) Jump’n
Jax has delivered to MedaCure a true and complete copy of its audited financial
statements for the fiscal years ended December 31, 2005, and 2004, and unaudited
financial statements for the three-month period ended March 31, 2006 (the
“Jump’n
Jax Financial Statements”).
The
Jump’n Jax Financial Statements are complete, accurate and fairly present the
financial condition of Jump’n Jax as of the dates thereof and the results of its
operations for the periods then ended. There are no material liabilities or
obligations either fixed or contingent not reflected therein. Merger Sub has
no
financial statements because it was recently formed solely for the purpose
of
effectuating the Merger and it has been, is and will remain inactive except
for
purposes of the Merger and it has no assets, liabilities, contracts or
obligations of any kind other than as incurred in the ordinary course in
connection with its incorporation in Nevada. Jump’n Jax has no subsidiaries or
affiliates except for Merger Sub and Merger Sub has no subsidiaries or
affiliates.
(d) Since
March 31, 2006, there have not been any material adverse changes in the
business, financial condition or results of operation of Jump’n Jax. At the
Closing, neither Jump’n Jax nor Merger Sub will have any material assets and
neither such corporation now has, nor will it have, any liabilities of any
kind
other than those reflected in the most recent balance sheet set forth in the
Jump’n Jax Financial Statements and any costs or liabilities incurred in
connection with the Merger (which costs and liabilities, including those
liabilities reflected in the most recent balance sheet set forth in the Jump’n
Jax Financial Statements, collectively will be paid in full by Jump’n Jax prior
to the Closing so that at Closing, Jump’n Jax has no outstanding
liabilities).
8
(e) Neither
Jump’n Jax nor Merger Sub is a party to, or the subject of, any material pending
litigation, claims, or governmental investigation or proceeding not reflected
in
the Jump’n Jax Financial Statements, and to the knowledge of the executive
officers of Jump’n Jax and of the Jump’n Jax Stockholders (herein “Jump’n
Jax’s Knowledge”),
there
are no material lawsuits, claims, assessments, investigations, or similar
matters, threatened in writing against Merger Sub, Jump’n Jax, or the management
or properties of Jump’n Jax or Merger Sub.
(f) Jump’n
Jax and Merger Sub are each duly organized, validly existing and in good
standing under the laws of the jurisdiction of their respective incorporation;
each has the corporate power to own its property and to carry on its business
as
now being conducted and is duly qualified to do business in any jurisdiction
where so required except where the failure to so qualify would have no material
negative impact. Neither corporation is required to be qualified to do business
in any state other than the State of Nevada.
(g) To
Jump’n
Jax’s Knowledge, Jump’n Jax and Merger Sub have filed all federal, state, county
and local income, excise, property and other tax, governmental and/or other
returns, forms, filings, or reports, which are due or required to be filed
by it
prior to the date hereof and have paid or made adequate provision in the Jump’n
Jax Financial Statements for the payment of all taxes, fees, or assessments
which have or may become due pursuant to such returns, filings or reports or
pursuant to any assessments received. Neither Jump’n Jax nor Merger Sub is
delinquent or obligated for any tax, penalty, interest, delinquency or charge
and there are no tax liens or encumbrances applicable to either corporation.
Neither Jump’n Jax nor Merger Sub is deemed to be an “S Corporation” as defined
by Internal Revenue Code of 1986, as amended.
(h) As
of the
date of this Agreement, Jump’n Jax’s authorized capital stock consists solely of
50,000,000 shares of common stock, $0.001 par value, of which 807,602
shares are presently issued and outstanding. Immediately prior to the Closing,
Jump’n Jax will have outstanding 3,230,408
shares of common stock, which number reflects the Forward Stock Split and no
other capital stock. Merger Sub’s capitalization consists solely of 1,000,000
authorized shares of $0.001 par value common stock (“Merger
Sub’s Common Stock”),
of
which 1,000 shares are outstanding, all of which are owned by Jump’n Jax, free
and clear of all liens, claims and encumbrances. All outstanding shares of
common stock of Jump’n Jax and Merger Sub are, and will be at the Closing, duly
authorized, validly issued, fully paid and nonassessable. There are no existing
options, calls, claims, warrants, preemptive rights, registration rights or
commitments of any character relating to the issued or unissued capital stock
or
other securities of either Jump’n Jax or Merger Sub.
(i) The
financial records, minute books, and other documents and records of Jump’n Jax
and Merger Sub have been made available to MedaCure prior to the Closing. The
records and documents of Jump’n Jax and Merger Sub that have been delivered to
MedaCure constitute all of the material records and documents of Jump’n Jax and
Merger Sub that they are aware of or that are in their possession or in the
possession of Jump’n Jax or Merger Sub.
(j) To
Jump’n
Jax’s Knowledge, neither Jump’n Jax nor Merger Sub has materially breached any
material agreement to which it is or has been a party. Prior to the execution
of
the Agreement, Jump’n Jax has given to MedaCure copies or access to all material
contracts, commitments and/or agreements to which Jump’n Jax is a party. There
are no currently existing agreements with any affiliates, related or controlling
persons or entities. Jump’n Jax has no leasehold interest or other ownership
interest, and no obligations under any real estate or any mining
claims.
(k) To
Jump’n
Jax’s Knowledge, it has complied with all provisions relating to the issuance of
shares and for the registration thereof under the Securities Act and all
applicable state securities laws, or appropriate exemption from registration
therefrom, and there are no outstanding, pending or threatened stop orders
or
other actions or investigations relating thereto involving federal and state
securities laws.
9
(l) Jump’n
Jax currently has no employees, consultants or independent contractors other
than its attorneys, accountants and transfer agent. Lane ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ are, and will be at the Closing, the sole directors and sole
executive officers of Jump’n Jax, and Lane ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
will be at the Closing the sole directors and sole executive officers of Merger
Sub.
(m) Jump’n
Jax and Merger Sub have, and at the Closing will have, disclosed in writing
to
MedaCure all events, conditions and facts materially affecting
the business, financial conditions, including any liabilities, contingent or
otherwise, or results of operations of either Jump’n Jax or Merger Sub, since
March 31, 2006.
(n) To
Jump’n
Jax’s Knowledge, Jump’n Jax was originally organized for the purposes of, and
with a specific plan for the ownership and rental of entertainment equipment.
Subsequently, Jump’n Jax revised its business to seeking potential operating
businesses and business opportunities with the intent to acquire or merge with
such businesses.
(o) To
Jump’n
Jax’s Knowledge, all information regarding Jump’n Jax which has been provided to
MedaCure by Jump’n Jax, or set forth in any document or other communication,
disseminated to any former, existing or potential stockholders of Jump’n Jax, to
the public or filed with the SEC, NASD, or any state securities regulators
or
authorities, is true, complete, accurate in all material respects, not
misleading, and was and is in full compliance with all securities laws and
regulations.
(p) To
Jump’n
Jax’s Knowledge, Jump’n Jax is and has been in compliance with, and Jump’n Jax
has conducted any business owned or operated by it in compliance with, all
applicable laws, orders, rules and regulations of all governmental bodies and
agencies, including applicable securities laws and regulations, including,
but
not limited to, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, and environmental laws and
regulations, except where such noncompliance has and will have, in the
aggregate, no material adverse effect. Jump’n Jax has not received notice of any
noncompliance with the foregoing, nor is it aware of any claims or threatened
claims in connection therewith.
(q) Except
as
and to the extent specifically disclosed in this Agreement and as may be
specifically disclosed or reserved against as to amount in the latest balance
sheet contained in the Jump’n Jax Financial Statements, there is no basis for
any assertion against Jump’n Jax of any material liabilities or obligations of
any nature, whether absolute, accrued, contingent or otherwise and whether
due
or to become due, including, without limitation, any liability for taxes,
including e-commerce sales or other taxes, interest, penalties and other charges
payable with respect thereto. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby
will;
|
(i)
|
result
in any payment, whether severance pay, unemployment compensation
or
otherwise, becoming due from Jump’n Jax to any person or entity, including
without limitation any employee, director, officer;
|
|
(ii)
|
increase
any benefits otherwise payable to any person or entity, including
without
limitation any employee, director, officer or affiliate;
or
|
| (iii) | result in the acceleration of the time of payment or vesting of any such benefits. |
(r) To
Jump’n
Jax’s Knowledge, no aspect of Jump’n Jax’s business, operations or assets is of
such a character as would restrict or otherwise hinder or impair Jump’n Jax from
carrying on the business of Jump’n Jax as it is presently being conducted and as
anticipated following consummation of the Merger.
10
(s) To
Jump’n
Jax’s Knowledge, other than retention of accountants, attorney, and transfer
agent, Jump’n Jax has no other contracts, commitments, arrangements, or
understandings relating to its business, operations, financial condition,
prospects or otherwise.
(t) None
of
Jump’n Jax, Merger Sub or any other affiliate thereof has or maintains any
employee benefit, bonus, incentive compensation, profit-sharing, equity, stock
bonus, stock option, stock appreciation rights, restricted stock, other
stock-based incentive, executive compensation agreement, employment agreement,
deferred compensation, pension, stock purchase, employee stock ownership,
savings, pension, retirement, supplemental retirement, employment related
change-in-control, severance, salary continuation, layoff, welfare (including,
without limitation, health, medical, prescription, dental, disability, salary
continuation, life, accidental death, travel accident, and other insurance),
vacation, holiday, sick leave, fringe benefit, or other benefit plan, program,
or policy, whether qualified or nonqualified and any trust, escrow, or other
agreement related thereto, covering any present or former employees, directors,
or their respective dependents.
(u) To
Jump’n
Jax’s Knowledge, no representation or warranty by Jump’n Jax or Merger Sub
contained in this Agreement and no statement contained in any certificate,
schedule or other communication furnished pursuant to or in connection with
the
provisions hereof, contains or will contain any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein not misleading. Except as specifically indicated elsewhere in this
Agreement, all documents delivered by Jump’n Jax in connection herewith have
been and will be complete originals, or exact copies thereof.
SECTION
6 Closing.
The
Closing of the transactions contemplated herein will take place on such date
(the “Closing”)
as
mutually determined by the parties hereto, but no later than five (5) days
after
all conditions precedent have been satisfied or waived and all required
documents have been delivered. The parties will use their reasonable commercial
efforts to cause the Closing to occur on or before September 30, 2006. The
“Effective
Time of the Merger”
will
be
that date and time specified in the Certificate of Merger as the date on which
the Merger will become effective.
SECTION
7 Actions
Prior to Closing.
(a) Prior
to
the Closing, MedaCure on the one hand, and Jump’n Jax and Merger Sub on the
other hand, will be entitled to make such investigations of the assets,
properties, business and operations of the other party and to examine the books,
records, tax returns, financial statements and other materials of the other
party as such investigating party deems necessary in connection with this
Agreement and the transactions contemplated hereby. Any such investigation
and
examination will be conducted at reasonable times and under reasonable
circumstances, and the parties hereto will cooperate fully therein. The
representations and warranties contained in this Agreement will not be affected
or deemed waived by reason of the fact that either party hereto discovered
or
should have discovered any representation or warranty is or might be inaccurate
in any respect. Until the Closing, the parties hereto and their respective
affiliates will keep confidential and will not use in any manner inconsistent
with the transactions contemplated by this Agreement any information or
documents obtained from the other concerning its assets, properties, business
or
operations. If the Closing will not occur for any reason (including, without
limitation, pursuant to a termination of this Agreement), the parties hereto
and
their respective affiliates will not disclose, nor use for their own benefit,
any such information or documents obtained from the other, in either case,
unless and to the extent:
|
(i)
|
readily
ascertainable from public or published information, or trade
sources;
|
|
(ii)
|
received
from a third party not under an obligation to such MedaCure or Jump’n Jax,
as the case may be, to keep such information confidential; or
|
11
|
(iii)
|
required
by any applicable law, rule, regulation or court order.
|
If
the
Closing does not occur for any reason, each of the parties and their respective
affiliates will promptly return or destroy all such confidential information
and
compilations thereof as is practicable, and will certify such destruction or
return to the other party.
(b) Prior
to
the Closing, any written news releases or public disclosure by either party
pertaining to this Agreement will be submitted to the other party for its review
and approval prior to such release or disclosure, provided, however,
that:
|
(i)
|
such
approval will not be unreasonably withheld,
and
|
|
(ii)
|
such
review and approval will not be required of disclosures required
to
comply, in the judgment of counsel, with federal or state securities
or
corporate laws or policies.
|
(c) Prior
to
the Closing, Jump’n Jax will effect a change in its corporate domicile from the
State of Utah to Nevada and will effect the Merger as a Nevada entity. Jump’n
Jax will also cause it corporate name to be changed to CuraTech Industries,
Inc.
(d) Except
as
contemplated by this Agreement, there will be no stock dividend, stock split,
recapitalization, or exchange of shares with respect to or rights issued in
respect of Jump’n Jax common stock after the date hereof and there will be no
dividends or other distributions paid on Jump’n Jax’s common stock after the
date hereof, in each case through and including the Effective Time of the
Merger. Jump’n Jax and Merger Sub will conduct no business activities prior to
the Closing other than in the ordinary course of business or as may be necessary
in order to consummate the transactions contemplated hereby.
(e) Jump’n
Jax, acting through its Board of Directors, will authorize and take all
requisite and necessary actions to finalize and give notice of and submit for
a
vote by its stockholders by written consent the following items;
(i) the
proposal to change Jump’n Jax’s state of domicile from the State of Utah to
Nevada and change its corporate name to CuraTech Industries, Inc.;
and
(ii) authority
to effectuate the four shares for one share Forward Stock Split and take all
requisite and necessary action to finalize the Forward Stock Split in accordance
with applicable law;
(f) Jump’n
Jax will take the requisite and necessary actions to obtain the written consent
for those actions discussed in Section 7(e) above as soon as practicable after
the execution of this Agreement and, as promptly as practicable thereafter
will:
|
(i)
|
prepare
and file with the SEC a preliminary Information Statement to be
disseminated by Jump’n Jax to its stockholders (the “Information
Statement”)
relating to the matters stated
above;
|
|
(ii)
|
take
the appropriate action to obtain and furnish the information required
by
the SEC to be included in the definitive Information Statement;
and
|
|
(iii)
|
after
consultation with counsel to MedaCure, respond promptly to any comments
made by the SEC with respect to the preliminary Information Statement
and
cause the definitive Information Statement to be mailed to its
stockholders as promptly as practicable following clearance from
the
SEC.
|
12
(g)
MedaCure
will provide to Jump’n Jax any information for inclusion in the Information
Statement which may be required under applicable law and which is reasonably
requested by Jump’n Jax. Each of MedaCure, Jump’n Jax and Merger Sub,
respectively, agree promptly to correct any information provided by any of
them
for use in the Information Statement if, and to the extent that, such
information will have become false or misleading in any material respect and
Jump’n Jax further agrees to take all necessary steps to cause the Information
Statement as so corrected to be filed with the SEC and to be disseminated to
its
stockholders to the extent required by applicable federal securities
laws.
(h) Jump’n
Jax hereby represents and warrants that the information supplied or to be
supplied by Jump’n Jax for inclusion or incorporation by reference in (i) the
Information Statement or (ii) the Other Filings (as defined below) will, at
the
respective times filed with the SEC and, in addition, in the case of the
Information Statement, as of the date it or any amendment or supplement thereto
is mailed to stockholders, not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. The Information Statement will comply as to
form
in all material respects with the requirements of the Exchange Act and the
rules
and regulations promulgated thereunder. MedaCure hereby represents and warrants
that the information supplied or to be supplied by MedaCure for inclusion or
incorporation by reference in the Information Statement or Other Filings will,
at the respective times filed with the SEC and, in addition, in the case of
the
Information Statement, as of the date it or any amendment or supplement thereto
is mailed to stockholders, not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading.
(i)
As
soon
as practicable following the date hereof and following the Effective Time of
the
Merger, each of Jump’n Jax and MedaCure will properly prepare and file any other
filings required under the Exchange Act or any other federal, state or foreign
law relating to the Merger (collectively, the “Other
Filings”).
(j) Except
as
required by law, Jump’n Jax and Merger Sub will not voluntarily take any action
that would, or that is reasonably likely to, result in any of the conditions
to
the Merger not being satisfied. Without limiting the generality of the foregoing
Jump’n Jax and Merger Sub will not take any action that would result in
|
(i)
|
any
of its representations and warranties set forth in this Agreement
that are
qualified as to materiality becoming untrue,
or
|
|
(ii)
|
any
of such representations and warranties that are not so qualified
becoming
untrue in any material respect.
|
(k) Jump’n
Jax common stock will continue to be approved for quotation on the OTC Bulletin
Board and Jump’n Jax will have continued to satisfy throughout the period from
the date hereof through the Closing Date (i) its filing requirements under
Section 13 of the Exchange Act and (ii) the requirements of Rule 15c2-11 as
promulgated by the SEC under the Exchange Act.
SECTION
8 Conditions
Precedent to the Obligations of MedaCure.
All
obligations of MedaCure under this Agreement to effect the Merger and the other
transactions contemplated hereby are subject to the fulfillment, prior to or
as
of the Closing and/or the Effective Time of the Merger, as indicated below,
of
each of the following conditions:
13
(a) The
representations and warranties by or on behalf of Jump’n Jax, and Merger Sub
contained in this Agreement, or in any certificate or document delivered
pursuant to the provisions hereof or in connection herewith, will be true at
and
as of the Closing and Effective Time of the Merger as though such
representations and warranties were made at and as of such time.
(b) Jump’n
Jax and Merger Sub will have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by them prior to or at the Closing. No
preliminary or permanent injunction or other order, decree or ruling issued
by a
court or other governmental authority of competent jurisdiction nor any statute,
rule, regulation or executive order promulgated or enacted by any governmental
authority of competent jurisdiction will be in effect which would have the
effect of (i) making the consummation of the Merger illegal, or (ii) otherwise
prohibiting the consummation of the Merger.
(c) On
or
before the Closing, the directors of Jump’n Jax and Merger Sub, and Jump’n Jax
as sole stockholder of Merger Sub, will have approved in accordance with
applicable provisions of the NRS the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein, and Jump’n Jax
will have approved and effected its change of corporate domicile and the Forward
Stock Split and submitted the same for approval by the stockholders of Jump’n
Jax, as required.
(d) On
or
before the Closing, Jump’n Jax and Merger Sub will have delivered certified
copies of resolutions of the sole stockholder and directors of Merger Sub and
of
the directors and stockholders of Jump’n Jax approving and
authorizing:
|
(i)
|
the
execution, delivery and performance of this Agreement and all necessary
and proper actions to enable Jump’n Jax and Merger Sub to comply with the
terms of this Agreement;
|
|
(ii)
|
the
election of MedaCure’s nominees to the Board of Directors of Jump’n Jax
and all matters outlined or contemplated herein;
and
|
|
(iii)
|
those
items set forth in Section 7(e)
above.
|
(e) Prior
to
the Closing, Jump’n Jax must receive from each MedaCure Stockholder an
“investment letter” or other equivalent document providing representations that
the shares of Jump’n Jax common stock to be issued in the Merger are, among
other things;
|
(i)
|
being
acquired for investment purposes and not with a view to public
resale;
|
|
(ii)
|
being
acquired for the investor’s own account;
and
|
| (iii) |
restricted
and may not be resold, except in reliance of an exemption under the
Act.
|
(f) The
Merger will be permitted by applicable state law and Jump’n Jax will have
sufficient shares of its common stock authorized to complete the Merger at
the
Effective Time and the transactions contemplated hereby.
(g) The
change of Jump’n Jax’s corporate domicile and corporate name will have been
approved by the requisite vote of the stockholders of Jump’n Jax, acting by
written consent in lieu of a special meeting thereof.
(h) At
Closing, Lane ▇. ▇▇▇▇▇▇▇▇, currently a director and officer of Jump’n Jax and
Merger Sub, will have resigned in writing from his positions as directors and
executive officers of Jump’n Jax and Merger Sub, respectively, effective upon
the appointment of MedaCure nominees, and the directors of Jump’n Jax will have
taken such action as may be deemed necessary or desirable by MedaCure regarding
such appointment of the MedaCure nominees.
14
(i) At
the
Closing, all instruments and documents delivered by Jump’n Jax or Merger Sub, to
MedaCure Stockholders pursuant to the provisions hereof, will be reasonably
satisfactory to legal counsel for MedaCure and the MedaCure
Stockholders.
(j) The
capitalization of Jump’n Jax and Merger Sub will be the same as described in
Section 5(h) above and will reflect the effectiveness of change in corporate
domicile of Jump’n Jax.
(k) The
shares of Jump’n Jax common stock to be issued to MedaCure Stockholders at
Closing will be validly issued, nonassessable and fully paid under the
applicable provisions of the NRS and will be issued in a nonpublic offering
in
compliance with all federal, state and applicable securities laws.
(l) Jump’n
Jax and MedaCure will have received all necessary and required approvals and
consents from members, required parties and stockholders, as
applicable.
(m) At
the
Closing, Jump’n Jax and Merger Sub will have delivered to MedaCure an opinion of
Jump’n Jax’s legal counsel dated as of the Closing to the effect that:
|
(i)
|
Each
of Jump’n Jax and Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its
incorporation;
|
|
(ii)
|
Jump’n
Jax and Merger Sub each has the corporate power to execute, deliver
and
perform its respective obligations under this
Agreement;
|
|
(iii)
|
This
Agreement has been duly authorized, executed and delivered by Jump’n Jax
and Merger Sub and is a valid and binding obligation of Jump’n Jax and
Merger Sub enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating
to
creditors’ rights and general principles of
equity;
|
|
(iv)
|
Jump’n
Jax and Merger Sub each through its Board of Directors and/or
stockholders, as required, have taken all corporate action necessary
for
performance under this Agreement;
|
|
(v)
|
The
documents executed by Jump’n Jax and delivered to MedaCure and MedaCure
Stockholders hereunder are valid and binding in accordance with their
terms and vest in MedaCure Stockholders all right, title and interest
in
and to the shares of Jump’n Jax’s common stock to be issued pursuant to
Section 2 hereof, and the shares of Jump’n Jax common stock when issued
will be duly and validly issued, fully paid and
nonassessable;
|
|
(vi)
|
The
shares of Jump’n Jax common stock issued pursuant to this Agreement will
be deemed “restricted securities” and may be sold or otherwise transferred
upon the satisfaction of the provisions of Rule 144, or pursuant
to any
other appropriate exemption or registration under the Securities
Act;
and
|
|
(vii)
|
Current
stockholders of Jump’n Jax common stock will have no appraisal or similar
rights as a result of consummation of this Agreement and the transactions
contemplated hereby, except as such rights may apply to Jump’n Jax’s
change of domicile from the State of Utah to
Nevada.
|
15
(n) MedaCure
will have completed its financial and legal due diligence investigation of
Jump’n Jax with results thereof satisfactory to MedaCure in its sole
discretion.
Section
9 Conditions
Precedent to the Obligations of Jump’n Jax and Merger
Sub.
All
obligations of Jump’n Jax and Merger Sub under this Agreement are subject to the
fulfillment, prior to or at the Closing and/or the Effective Time of the Merger,
of each of the following conditions:
(a) The
representations and warranties by MedaCure contained in this Agreement or in
any
certificate or document delivered pursuant to the provisions hereof or in
connection herewith, will be true at and as of the Closing and the Effective
Time of the Merger as though such representations and warranties were made
at
and as of such times.
(b) MedaCure
will have performed and complied with, in all material respects, all covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by it, prior to or at the Closing.
(c) On
or
before the Closing, the MedaCure Board of Directors and MedaCure Stockholders,
as applicable, will have approved, in accordance with applicable state
corporation law, the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein.
(d) On
or
before the Closing Date, MedaCure will have delivered certified copies of
resolutions of its Board of Directors approving and authorizing the execution,
delivery and performance of this Agreement and the other Transaction Documents
and authorizing all of the necessary and proper action to enable MedaCure to
comply with the terms of this Agreement.
(e) The
Merger will be permitted by applicable state law.
(f) Prior
to
the Closing, Jump’n Jax must receive from each MedaCure Stockholder an
“investment letter” or other equivalent document providing representations that
the shares of Jump’n Jax common stock to be issued in the Merger are, among
other things;
|
(i)
|
being
acquired for investment purposes and not with a view to public
resale;
|
|
(ii)
|
being
acquired for the investor’s own account;
and
|
|
(iii)
|
restricted
and may not be resold, except in reliance of an exemption under the
Act.
|
(g) At
the
Closing, all instruments and documents delivered by MedaCure pursuant to the
provisions hereof will be reasonably satisfactory to legal counsel for Jump’n
Jax.
(h) Jump’n
Jax will have received all necessary and requisite approvals and consents from
required parties and from its stockholders, and this Agreement and the Merger
will have been adopted and approved by the requisite vote of MedaCure
Stockholders.
(i) At
the
Closing, MedaCure will have delivered to Jump’n Jax an opinion of MedaCure’s
legal counsel dated as of the Closing to the effect that:
|
(i)
|
MedaCure
is a corporation validly existing and in good standing under the
laws of
the State of Nevada;
|
|
(ii)
|
This
Agreement has been duly authorized, executed and delivered by MedaCure
and
is a valid and binding obligation of MedaCure enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws relating to creditors’ rights and general principles
of equity;
|
| (iii) | MedaCure, through its Board of Directors, has taken all corporate action necessary for performance of its obligations under this Agreement; and |
16
|
(vi)
|
MedaCure
has the authority and power to execute, deliver and perform its
obligations under this Agreement.
|
(j) Jump’n
Jax will have an exemption from registration under the Securities Act and the
securities laws of the various states of residence of MedaCure Stockholders
for
issuance of the shares of Jump’n Jax common stock to be issued to MedaCure
Stockholders in the Merger.
SECTION
10 Survival.
The
representations and warranties contained in this Agreement and any other
document or certificate relating hereto will survive and continue in full force
and effect for a period of six months after the Effective Time of the
Merger.
SECTION
11 Nature
of Representations.
All of
the parties hereto are executing and carrying out the provisions of this
Agreement in reliance solely on the representations, warranties, covenants
and
agreements contained in this Agreement and the other documents delivered at
the
Closing and not upon any representation, warranty, agreement, promise or
information, written or oral, made by the other party or any other person other
than as specifically set forth herein.
SECTION
12 Documents
at Closing.
At the
Closing, the following documents will be delivered:
(a) MedaCure
will deliver, or will cause to be delivered, to Jump’n Jax the
following:
|
(i)
|
a
certificate executed by the Board of Directors of MedaCure to the
effect
that all representations and warranties made by MedaCure under this
Agreement are true and correct as of the Closing and as of the Effective
Time of the Merger, the same as though originally given to Jump’n Jax or
Merger Sub on said date and that MedaCure has performed or complied
in all
material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the
Effective Time of the Merger;
|
|
(ii)
|
a
certificate from the state of MedaCure’s domicile dated within five
business days of the Closing to the effect that MedaCure is in good
standing under the laws of said
state;
|
|
(iii)
|
such
other instruments, documents and certificates, if any, as are required
to
be delivered pursuant to the provisions of this Agreement and the
other
Transaction Documents;
|
|
(iv)
|
certified
copies of resolutions adopted by the MedaCure Board of Directors
approving
the Merger Agreement and other Transaction Documents related to and
authorizing the Merger;
|
|
(v)
|
the
opinion of MedaCure’s counsel as described in Section 9(i) above;
and
|
|
(vi)
|
all
other items, the delivery of which is a condition precedent to the
obligations of Jump’n Jax and Merger Sub, as set forth
herein.
|
(b) Jump’n
Jax and Merger Sub will deliver or cause to be delivered to
MedaCure:
|
(i)
|
stock
certificates representing those securities of Jump’n Jax to be issued
MedaCure Stockholders as a part of the Merger as described in Section
2
hereof;
|
17
|
(ii)
|
a
certificate of the President of Jump’n Jax and Merger Sub, respectively,
to the effect that all representations and warranties of Jump’n Jax and
Merger Sub made under this Agreement are true and correct as of the
Closing, the same as though originally given to MedaCure on said
date; and
that each of Jump’n Jax and Merger Sub has performed or complied in all
material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the
Effective Time of the Merger;
|
|
(iii)
|
certified
copies of resolutions adopted by Jump’n Jax’s and Merger Sub’s Board of
Directors and Merger Sub’s sole stockholder approving the Merger Agreement
and authorizing the Merger and all related matters; and certified
copies
of resolutions adopted by the stockholders of Jump’n Jax approving the
matters described in Section 7(e)
above;
|
|
(iv)
|
certificates
from the jurisdiction of incorporation of Jump’n Jax and Merger Sub dated
within five business days of the Closing Date that each of said
corporations is in good standing under the laws of said
state;
|
|
(v)
|
executed
copy of the Certificate of Merger for filing in the State of
Nevada;
|
|
(vi)
|
opinion
of Jump’n Jax’s counsel as described in Section 8(m)
above;
|
|
(vii)
|
such
other instruments and documents as are required to be delivered pursuant
to the provisions of this
Agreement;
|
|
(viii)
|
written
resignation of Lane ▇. ▇▇▇▇▇▇▇▇ as an officer and director of Jump’n Jax;
and
|
|
(ix)
|
all
other items, the delivery of which is a condition precedent to the
obligations of MedaCure, as set forth in Section 8
hereof.
|
SECTION
13 Finder’s
Fees.
Unless
otherwise disclosed in an attachment hereto, Jump’n Jax and Merger Sub, jointly
and severally, represent and warrant to MedaCure, and MedaCure represents and
warrants to Jump’n Jax and Merger Sub, that none of them, or any party acting on
their behalf, has incurred any liabilities, either express or implied, to any
“broker” or “finder” or similar person in connection with this Agreement or any
of the transactions contemplated hereby.
SECTION
14 Additional
Covenants.
Between
the date hereof and the Closing, except with prior written consent of the other
party:
(a) Jump’n
Jax, Merger Sub and MedaCure will conduct their business only in the usual
and
ordinary course and the character of such business will not be changed nor
will
any different business be undertaken;
(b) No
change
will be made in the Certificate of Incorporation or Bylaws of Jump’n Jax, Merger
Sub or MedaCure except as described herein;
(c) No
change
will be made in the authorized or issued shares of Jump’n Jax except as set
forth herein;
(d) Neither
Jump’n Jax nor MedaCure will discharge or satisfy any lien or encumbrance or
obligation or liability, other than current liabilities shown on the financial
statements heretofore delivered and current liabilities incurred since that
date
in the ordinary course of business; and
18
(e) Jump’n
Jax will not make any payment or distribution to its stockholders or purchase
or
redeem any shares or common stock except as set forth herein.
SECTION
15 Termination.
This
Agreement may be terminated at any time prior to the Effective Time of the
Merger, by action taken or authorized by the Board of Directors of the
terminating party or parties and, except as provided below, whether before
or
after approval of the matters presented in connection with the Merger by the
stockholders of Jump’n Jax or MedaCure:
(a) By
mutual
written consent of Jump’n Jax and MedaCure;
(b) By
either
Jump’n Jax or MedaCure, if the Effective Time of the Merger will not have
occurred on or before September 30, 2006 (the “Termination Date”); provided,
however, that the right to terminate this Agreement under this Section 15(b)
will not be available to any party whose failure to fulfill any obligation
under
this Agreement has been the cause of or resulted in, the failure of the
Effective Time of the Merger to occur on or before the Termination
Date;
(c) By
either
Jump’n Jax or MedaCure if any governmental entity
|
(i)
|
will
have issued an order, decree or ruling or taken any other action
(which
the parties will use their reasonable best efforts to resist, resolve
or
lift, as applicable) permanently restraining, enjoining or otherwise
prohibiting the transaction contemplated by this Agreement and such
order,
decree, ruling or other action will have become final and nonappealable;
or
|
|
(ii)
|
will
have failed to issue an order, decree or ruling or to take any other
action and such denial of a request to issue such order, decree,
ruling or
take such other action will have become final and nonappealable (which
order, decree, ruling or other action the parties will have used
their
reasonable best efforts to obtain); if such action under (i) and/or
(ii)
is necessary to fulfill the conditions set forth in Sections 9 and
10, as
applicable;
|
(d) By
either
Jump’n Jax or MedaCure, if the approvals of the respective stockholders of
Jump’n Jax or MedaCure contemplated by this Agreement will not have been
obtained by reason of the failure to obtain the required vote of stockholders
or
consent to the respective matters as to which such approval was
sought;
(e) By
Jump’n
Jax, if MedaCure will have breached or failed to perform any of its
representations, warranties, covenants or other agreements contained in this
Agreement, such that the conditions set forth in Section 9 are not capable
of
being satisfied on or before the Termination Date; or
(f) By
MedaCure, if Jump’n Jax will have breached or failed to perform any of its
representations, warranties, covenants or other agreements contained in this
Agreement, such that the conditions set forth in Section 8 are not capable
of
being satisfied on or before the Termination Date.
SECTION
16 Effect
of Termination.
In the
event of termination of this Agreement by either Jump’n Jax or MedaCure as
provided in Section 15 (other than Sections 16(e) or (f)), this Agreement will
forthwith become void and there will be no liability or obligation on the part
of any of the parties or their respective officers or directors.
SECTION
17 Miscellaneous.
(a) Further
Assurances.
At any
time and from time to time after the Effective Time of the Merger, each party
will execute such additional instruments and take such action as may be
reasonably requested by the other party to confirm or perfect title to any
property transferred hereunder or otherwise to carry out the intent and purposes
of this Agreement.
19
(b) Waiver.
Any
failure on the part of any party hereto to comply with any of its obligations,
agreements or conditions hereunder may be waived in writing by the party (in
its
sole discretion) to whom such compliance is owed.
(c) Amendment.
This
Agreement may be amended only in writing as agreed to by all parties
hereto.
(d) Notices.
All
notices and other communications hereunder will be in writing and will be deemed
to have been given if delivered in person or sent by prepaid first class
registered or certified mail, return receipt requested to the last known address
of the noticed party.
(e) Headings.
The
section and subsection headings in this Agreement are inserted for convenience
only and will not affect in any way the meaning or interpretation of this
Agreement.
(f) Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which will be deemed an original, but all of which together will constitute
one
and the same instrument.
(g) Binding
Effect.
This
Agreement will be binding upon the parties hereto and inure to the benefit
of
the parties, their respective heirs, administrators, executors, successors
and
assigns.
(h) Entire
Agreement.
This
Agreement and the attached Exhibits, including the Certificate of Merger, is
the
entire agreement of the parties covering everything agreed upon or understood
in
the transaction. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution hereof.
(i) Severability.
If any
part of this Agreement is deemed to be unenforceable, the balance of the
Agreement will remain in full force and effect.
(j) Responsibility
and Costs.
Whether
the Merger is consummated or not and except as otherwise set forth below, all
fees, expenses and out-of-pocket costs including, but not limited to, fees
and
disbursements of counsel, financial advisors and accountants and expenses
associated with fulfillment of the obligations set forth herein, that are
incurred by the parties hereto will be borne solely and entirely by the party
that has incurred such costs and expenses, unless the failure to consummate
the
Merger constitutes a breach of the terms hereof, in which event the breaching
party will be responsible for all costs of all parties hereto. Notwithstanding
the above, the parties agree that MedaCure will pay to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Attorney at Law, all reasonable legal fees, expenses and costs associated with
the preparation and execution of this Agreement and all transactions, agreements
and documents associated thereto and contemplated hereby. All printing expenses
and ▇▇▇▇▇ filing expenses, will be paid by MedaCure. No other pre-Merger fees,
expenses or other costs incurred by Jump’n Jax prior to the Effective Time of
the Merger will be the obligation of Jump’n Jax at or following the Effective
Time of the Merger.
(k) Governing
Law.
This
Agreement will be governed and construed in accordance with the laws of the
State of Utah without regard to principles of conflicts of law.
[Signatures
on Following Page]
20
IN
WITNESS WHEREOF,
the
parties have executed this Agreement the day and year first above
written.
| MedaCure International, Inc. | ||
| By: _________________________________ | ||
| Lincoln ▇▇▇▇▇▇▇ | ||
| Its: President | ||
| Jump’n Jax, Inc. | ||
| By: _________________________________ | ||
| Lane ▇. ▇▇▇▇▇▇▇▇ | ||
| Its: President | ||
| CuraTech Acquisitions, Inc. | ||
| By: _________________________________ | ||
| Lane ▇. ▇▇▇▇▇▇▇▇ | ||
|
Its: President
|
||
21