Agreement and Plan of Merger among Pure Vanilla eXchange, Inc. (“Old Pure Vanilla”), NVS Entertainment, Inc. and NVS Acquisition Corp.
Exhibit
1.04
Agreement
and Plan of Merger among Pure Vanilla eXchange, Inc. (“Old Pure Vanilla”), NVS
Entertainment, Inc. and NVS Acquisition Corp.
AGREEMENT
AND PLAN OF MERGER
AMONG
PURE
VANILLA EXCHANGE, INC.,
NVS
ENTERTAINMENT, INC.
AND
NVS
ACQUISITION CORP.
March
9, 2006
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AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
This
Agreement and Plan of Merger (this "Agreement")
is
entered into as of March 9, 2006 by and among NVS Entertainment, Inc., a Nevada
corporation ("NVS"),
NVS
Acquisition Corp., a Nevada corporation and a wholly-owned subsidiary of NVS
("Acquisition
Subsidiary"),
and
Pure Vanilla eXchange, Inc., a Nevada corporation ("PVx").
NVS,
Acquisition Subsidiary and PVx are referred to collectively herein as the
"Parties."
WHEREAS,
this Agreement contemplates a merger of Acquisition Subsidiary with and into
PVx, with PVx being the surviving corporation in the merger (the "Merger").
In
the Merger, the shareholders of PVx will receive common stock of NVS in exchange
for their capital stock of PVx.
WHEREAS,
NVS, Acquisition Subsidiary, and PVx desire that the Merger qualify as a "plan
of reorganization" under Section 368(a) of the Internal Revenue Code of 1986,
as
amended (the "Code")
and
not subject the holders of equity securities of PVx to tax liability under
the
Code.
NOW,
THEREFORE, in consideration of the representations, warranties and covenants
herein contained, and for other good and valuable consideration the receipt,
adequacy and sufficiency of which are hereby acknowledged, the Parties hereto,
intending legally to be bound, agree as follows.
ARTICLE
I
THE
MERGER
1.1 The
Merger.
Upon
and subject to the terms and conditions of this Agreement, Acquisition
Subsidiary shall merge with and into PVx at the Effective Time (as defined
below). From and after the Effective Time, the separate corporate existence
of
PVx shall cease and PVx shall continue as the surviving corporation in the
Merger (the "Surviving
Corporation").
The
"Effective
Time"
shall
be the time at which the Parties file a certificate of merger and other
appropriate or required documents prepared and executed in accordance with
Section 92A.200
of the
Nevada Revised Statutes (the "Certificate
of Merger")
with
the Secretary of State of Nevada. The Merger shall have the effects set forth
in
Section 92A.250
of the
Nevada Revised Statutes (the "Nevada
Corporations Law").
1.2 The
Closing.
The
closing of the transactions contemplated by this Agreement (the "Closing")
shall
take place at the offices of Boylan, Brown, Code, Xxxxxx & Xxxxxx, LLP, 0000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx commencing at 10:00 a.m. local time on March
__, 2006, or, if all of the conditions to the obligations of the Parties to
consummate the transactions contemplated hereby have not been satisfied or
waived by such date, on such mutually agreeable later date as soon as
practicable (and in any event not later than three (3) business days) after
the
satisfaction or waiver of all conditions (excluding the delivery of any
documents to be delivered at the Closing by any of the Parties) set forth in
Article V hereof (the "Closing
Date").
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1.3 Actions
at the Closing.
At the
Closing:
(a) PVx
shall
deliver to NVS and Acquisition Subsidiary the various certificates, instruments
and documents referred to in Section 5.2;
(b) NVS
and
Acquisition Subsidiary shall deliver to PVx the various certificates,
instruments and documents referred to in Section 5.3;
(c) the
Surviving Corporation shall file with the Secretary of State of Nevada the
Certificate of Merger;
(d) each
of
the shareholders of record of PVx immediately prior to the Effective Time (the
"PVx
Shareholders")
shall
deliver to NVS the certificate(s) representing his, her or its PVx Shares (as
defined below); provided, however, that if any such certificates shall not
be
delivered prior to the Effective time, such certificates shall be deemed to
represent the number of Merger Shares into which they shall have been converted
and may be exchanged at any time thereafter for certificates representing such
Merger Shares; and
(e) NVS,
shall deliver certificates for the Merger Shares (as defined below) to each
PVx
Shareholder who has surrender certificates representing his, her or its PVx
Shares in accordance with Section 1.5
1.4 Additional
Actions.
If at
any time after the Effective Time, the Surviving Corporation shall consider,
or
be advised that, any further assignments or assurance in law or any other acts
are necessary or desirable to vest, perfect or confirm, of record or otherwise,
in the Surviving Corporation, title to and possession of any property or right
of PVx acquired by reason of, or as a result of, the Merger, PVx shall be deemed
to have granted to the Surviving Corporation an irrevocable power of attorney
to
execute and deliver all such deeds, assignments and assurances in law and to
do
all acts necessary or proper to vest, perfect or confirm title to, and
possession of, such property or rights in the Surviving Corporation, and the
proper directors and officers of the Surviving Corporation are fully authorized
in the name of PVx to take any and all such actions.
1.5 Conversion
of Shares.
At the
Effective Time, by virtue of the Merger and without any action on the part
of
any Party or the holder of any of the following securities:
(a) Each
share of Acquisition Subsidiary issued and outstanding immediately prior to
the
Effective Time shall, without further action by Acquisition Subsidiary, NVS
or
PVS be converted into one share of the Surviving Corporation.
(b) Each
share of Common Stock, $.01 value per share “PVx
Common Stock”),
of
PVx issued and outstanding immediately prior to the Effective Time (other than
Dissenting Shares (as defined below)) shall be converted into and represent
the
right to receive (subject to the provisions of Section 1.7) such number of
shares of common stock, $0.01 par value per share, of NVS ("NVS
Common Stock")
as is
equal to the Conversion Ratio (as defined below).
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(c) Each
share of NVS Common Stock that is owned by PVx at the Effective Time shall,
without further action by PVx or NVS, be cancelled.
(d) The
"Conversion
Ratio"
shall
be equal to 9.5472,
the
result obtained by dividing (i) 42,274,536 shares of NVS Common Stock by (ii)
4,427,958, the total number of outstanding shares of PVx Common Stock
immediately prior to the Effective Time on a fully-diluted basis after giving
effect to the exercise of all outstanding Options (as defined below). The shares
of NVS Common Stock into which the PVx Shares are so converted are referred
to
herein as the "Merger
Shares."
1.6 Dissenting
Shares.
(a) Promptly
(and in any event within ten (10) days) after the Effective Time, the Surviving
Corporation shall give each PVx Shareholder who did not consent in writing
to
the adoption of this Agreement and the Merger written notice in accordance
with
Section 92A.410(2) of the Nevada Corporations Law that such actions were taken
and send them the dissenters’ rights notice described in Section 92A.430 of the
Nevada Corporations Law.
(b) For
purposes of this Agreement, "Dissenting
Shares"
means
shares of PVx Common Stock held as of the Effective Time by a PVx Shareholder
who has not voted such shares of PVx Common Stock in favor of the adoption
of
this Agreement and the Merger and with respect to which appraisal shall have
been duly demanded and perfected in accordance with Section 92A.440 of the
Nevada Corporations Law. Dissenting Shares shall not be converted into or
represent the right to receive the Merger Shares, unless such PVx Shareholder's
right to appraisal shall have ceased in accordance with Section 92A.440 of
the
Nevada Corporations Law. If such PVx Shareholder has so forfeited or withdrawn
his, her or its right to appraisal of Dissenting Shares, then, (i) as of the
occurrence of such event, such holder's Dissenting Shares shall cease to be
Dissenting Shares and shall be converted into and represent the right to receive
the Merger Shares issuable in respect of such PVx Shares pursuant to Section
1.5
(subject to the provisions of Section 1.7), and (ii) promptly following the
occurrence of such event, NVS shall deliver to such PVx Shareholder a
certificate representing the Merger Shares to which such holder is
entitled.
(c) PVx
shall
give NVS prompt notice of any written demands for appraisal of any shares of
PVx
Common Stock, withdrawals of such demands, and any other instruments that relate
to such demands received by PVx. PVx shall not, except with the prior written
consent of NVS, make any payment with respect to any demands for appraisal
of
shares of PVx Common Stock or offer to settle or settle any such demands.
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1.7 Fractional
Shares.
No
certificates or scrip representing fractional Merger Shares shall be issued
to
PVx Shareholders on the surrender for exchange of certificates that immediately
prior to the Effective Time represented shares of PVx Common Stock converted
into Merger Shares pursuant to Section 1.5 ("Certificates")
and
such PVx Shareholders shall not be entitled to any voting rights, rights to
receive any dividends or distributions or other rights as a stockholder of
NVS
with respect to any fractional Merger Shares that would have otherwise been
issued to such PVx Shareholders. In lieu of any fractional Merger Shares that
would have otherwise been issued, each former PVx Shareholder that would have
been entitled to receive a fractional Merger Share shall, on proper surrender
of
such person's Certificates, receive such whole number of Merger Shares as is
equal to the precise number of Merger Shares to which such PVx Shareholder
would
be entitled, rounded up or down to the nearest whole number (with a fractional
interest equal to .5 rounded upward to the nearest whole number); provided
that
each such PVx Shareholder shall receive at least one Merger Share.
1.8 Options
and Warrants.
(a) As
of the
Effective Time, all options to purchase shares of PVx Common Stock issued by
PVx
("Options"),
whether vested or unvested, shall, in accordance with the terms of PVx’ 2006
Incentive Stock Option Plan (the “PVx
Plan”),
entitle the holder thereof to purchase that number of shares of NVS Common
Stock
as is equal to the number of shares of PVx Common Stock subject to the
unexercised portion of the Option multiplied by the Conversion Ratio (with
any
fraction resulting from such multiplication to be rounded up or down to the
nearest whole number, as provided in Section 1.7), with the purchase price
per
share being adjusted accordingly.
(b) NVS
shall
take all corporate action necessary to reserve for issuance a sufficient number
of shares of NVS Common Stock for delivery upon exercise of Options in
accordance with this Section 1.8.
1.9 Articles
of Incorporation and Bylaws.
(a) The
Certificate of Incorporation of PVx in effect immediately prior to the Effective
Time shall be the Certificate of Incorporation of the Surviving Corporation
until duly amended or repealed.
(b) The
Bylaws of PVx in effect immediately prior to the Effective Time shall be the
Bylaws of the Surviving Corporation until duly amended or repealed.
1.10 No
Further Rights.
From
and after the Effective Time, no PVx Shares shall be deemed to be outstanding,
and holders of Certificates representing PVx Shares shall cease to have any
rights with respect thereto, except as provided herein or by law.
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1.11 Closing
of Transfer Books.
At the
Effective Time, the stock transfer books of PVx shall be closed and no transfer
of PVx Shares shall thereafter be made. If, after the Effective Time,
certificates representing PVx Shares are presented to NVS or the Surviving
Corporation, they shall be cancelled and exchanged for Merger Shares in
accordance with Section 1.5, subject to Section 1.6 and to applicable law in
the
case of Dissenting Shares.
1.12 Exemption
From Registration.
NVS and
PVx intend that the shares of NVS Common Stock to be issued pursuant to Section
1.5 hereof or upon exercise of Options will be issued in a transaction exempt
from registration under the Securities Act by reason of section 4(2) of the
Securities Act and/or Rule 506 of Regulation D promulgated by the SEC
thereunder.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF PVx
PVx
represents and warrants to NVS that the statements contained in this Article
II
are true and correct. For purposes of this Article II, the phrase "to the
knowledge of PVx" or any phrase of similar import shall be deemed to refer
to
the actual knowledge of the executive officers of PVx, as well as any other
knowledge which such executive officers would have possessed had they made
reasonable inquiry with respect to the matter in question.
2.1 Organization,
Qualification and Corporate Power.
PVx is
a corporation duly organized, validly existing and in corporate and tax good
standing under the laws of the State of Nevada. PVx is duly qualified to conduct
business and is in corporate and tax good standing under the laws of each
jurisdiction in which the nature of its businesses or the ownership or leasing
of its properties requires such qualification, except where the failure to
be so
qualified or in good standing, individually or in the aggregate, has not had
and
would not reasonably be expected to have a Material Adverse Effect (as defined
below). PVx has all requisite corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties owned and
used by it. PVx has furnished or made available to NVS complete and accurate
copies of its Articles of Incorporation and Bylaws. PVx is not in default under
or in violation of any provision of its Articles of Incorporation, as amended
to
date, or its Bylaws, as amended to date. For purposes of this Agreement,
"
Material Adverse Effect"
means a
material adverse effect on the assets, business, condition (financial or
otherwise), results of operations or future prospects of the entity with respect
to which the effect occurs.
2.2 Capitalization.
The
authorized capital stock of PVx consists of 10,000,000, shares of common stock,
par value $.01 per share ("PVx
Common Stock").
As of
the date of this Agreement, 4,427,958 shares of PVx Common Stock were issued
and
outstanding. As of the date of this Agreement, there were no outstanding options
to purchase shares of PVx Common Stock pursuant to the PVx Plan or otherwise.
There are no outstanding or authorized stock appreciation, phantom stock or
similar rights with respect to PVx. There are no agreements to which PVx is
a
party or by which it is bound with respect to the voting (including without
limitation voting trusts or proxies), registration under the Securities Act
of
1933, as amended (the “Securities
Act”),
or
sale or transfer (including without limitation agreements relating to
pre-emptive rights, rights of first refusal, co-sale rights or "drag-along"
rights) of any securities of PVx. To the knowledge of PVx, there are no
agreements among other parties, to which PVx is not a party and by which it
is
not bound, with respect to the voting (including without limitation voting
trusts or proxies) or sale or transfer (including without limitation agreements
relating to rights of first refusal, co-sale rights or "drag-along" rights)
of
any securities of PVx. All of the issued and outstanding shares of PVx Common
Stock were issued in compliance with applicable federal and state securities
laws.
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2.3 Authorization
of Transaction.
PVx has
all requisite power and authority to execute and deliver this Agreement and
to
perform its obligations hereunder. The execution and delivery by PVx of this
Agreement and, subject to the adoption of this Agreement and the approval of
the
Merger by a majority of the votes represented by the outstanding PVx Shares
entitled to vote on this Agreement and the Merger (the "Requisite
PVx Shareholder Approval"),
the
consummation by PVx of the transactions contemplated hereby have been duly
and
validly authorized by all necessary corporate action on the part of PVx. Without
limiting the generality of the foregoing, the Board of Directors of PVx (i)
determined that the Merger is fair and in the best interests of PVx and its
shareholders, (ii) adopted this Agreement in accordance with the provisions
of
the Nevada Corporations Law, and (iii) directed that this Agreement and the
Merger be submitted to the shareholders of PVx for their adoption and approval
and resolved to recommend that the shareholders of PVx vote in favor of the
adoption of this Agreement and the approval of the Merger. This Agreement has
been duly and validly executed and delivered by PVx and constitutes a valid
and
binding obligation of PVx, enforceable against PVx in accordance with its
terms.
2.4 Non-contravention.
Subject
to the filing of the Certificate of Merger as required by the Nevada General
Corporation Law, neither the execution and delivery by PVx of this Agreement,
nor the consummation by PVx of the transactions contemplated hereby, will (a)
conflict with or violate any provision of the Articles of Incorporation or
Bylaws of PVx, as amended to date, (b) require on the part of PVx any filing
with, or any permit, authorization, consent or approval of, any court,
arbitrational tribunal, administrative agency or commission or other
governmental or regulatory authority or agency (a "Governmental
Entity"),
(c)
conflict with, result in a breach of, constitute (with or without due notice
or
lapse of time or both) a default under, result in the acceleration of
obligations under, create in any party the right to terminate, modify or cancel,
or require any notice, consent or waiver under, any contract or instrument
to
which PVx is a party or by which PVx is bound or to which any of their assets
is
subject, except for (i) any conflict, breach, default, acceleration,
termination, modification or cancellation which, individually or in the
aggregate, would not have a Material Adverse Effect and would not adversely
affect the consummation of the transactions contemplated hereby or (ii) any
notice, consent or waiver the absence of which, individually or in the
aggregate, would not have a Material Adverse Effect and would not adversely
affect the consummation of the transactions contemplated hereby, (d) result
in
the imposition of any Security Interest (as defined below) upon any assets
of
PVx or (e) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to PVx or any of its properties or assets. For purposes
of
this Agreement: "Security
Interest"
means
any mortgage, pledge, security interest, encumbrance, charge or other lien
(whether arising by contract or by operation of law), other than (i) mechanic's,
materialmen's, and similar liens, (ii) liens arising under worker's
compensation, unemployment insurance, social security, retirement, and similar
legislation, and (iii) liens on goods in transit incurred pursuant to
documentary letters of credit, in each case arising in the Ordinary Course
of
Business (as defined below) of PVx and not material to PVx. "Ordinary
Course of Business"
means
the ordinary course of PVx's business, consistent with past custom and practice
(including with respect to frequency and amount).
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2.5 Subsidiaries.
(a) PVx
has
no Subsidiaries. For purposes of this Agreement, a “Subsidiary”
shall
mean a corporation, partnership, joint venture or other entity in which an
entity has, directly or indirectly, an equity interest representing 50% or
more
of the capital stock thereof or other equity interests therein.
(b) PVx
does
not control directly or indirectly or have any direct or indirect equity
participation or similar interest in any corporation, partnership, limited
liability PVx, joint venture, trust or other business association which is
not a
Subsidiary.
2.6 Financial
Statements.
PVx has
provided or made available to NVS (a) the unaudited balance sheet of PVx at
December 31, 2005, and the related statements of operations and cash flows
for
the period from its formation until such date (collectively, the "PVx
Year-End Financial Statements")
and
(b) the unaudited balance sheet of PVx (the "PVx
Interim Balance Sheet")
at
January 31, 2006 (the "PVx
Interim Balance Sheet Date")
and
the related statements of operations and cash flows for the period then ended
(collectively, the "PVx
Interim Financial Statements,"
and
with the Year-End Financial Statements, the "PVx
Financial Statements").
The
PVx Financial Statements have been prepared in accordance with United States
generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods covered thereby, fairly
present the financial condition, results of operations and cash flows of PVx
as
of the respective dates thereof and for the periods referred to therein and
are
consistent with the books and records of PVx; provided, however, that the PVx
Financial Statements referred to in clause (b) above are subject to normal
recurring year-end adjustments (which will not be material) and do not include
footnotes.
2.7 Absence
of Certain Changes.
Since
the PVx Interim Balance Sheet Date, (a) there has occurred no event or
development which, individually or in the aggregate, has had, or could
reasonably be expected to have in the future, a Material Adverse
Effect.
2.8 Undisclosed
Liabilities.
PVx has
no liability (whether known or unknown, whether absolute or contingent, whether
liquidated or unliquidated and whether due or to become due), except for (a)
liabilities shown on the balance sheet referred to in clause (b) of Section
2.6,
(b) liabilities which have arisen since PVx Interim Balance Sheet Date in the
Ordinary Course of Business and (c) contractual and other liabilities incurred
in the Ordinary Course of Business which are not required by GAAP to be
reflected on a balance sheet.
2.9 Tax
Matters.
(a) For
purposes of this Agreement, the following terms shall have the following
meanings:
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(i) "Taxes"
means
all taxes, charges, fees, levies or other similar assessments or liabilities,
including without limitation income, gross receipts, ad valorem, premium,
value-added, excise, real property, personal property, sales, use, transfer,
withholding, employment, unemployment insurance, social security, business
license, business organization, environmental, workers compensation, payroll,
profits, license, lease, service, service use, severance, stamp, occupation,
windfall profits, customs, duties, franchise and other taxes imposed by the
United States of America or any state, local or foreign government, or any
agency thereof, or other political subdivision of the United States or any
such
government, and any interest, fines, penalties, assessments or additions to
tax
resulting from, attributable to or incurred in connection with any tax or any
contest or dispute thereof.
(ii) "Tax
Returns"
means
all reports, returns, declarations, statements or other information required
to
be supplied to a taxing authority in connection with Taxes.
(b) PVx
has
filed on a timely basis all Tax Returns that it was required to file, and all
such Tax Returns were complete and accurate in all material respects. PVx is
not
and never has been a member of a group of corporations with which it has filed
(or been required to file) consolidated, combined or unitary Tax Returns. PVx
has paid on a timely basis all Taxes that were due and payable. The unpaid
Taxes
of PVx for tax periods through PVx Interim Balance Sheet Date do not exceed
the
accruals and reserves for Taxes (excluding accruals and reserves for deferred
Taxes established to reflect timing differences between book and Tax income)
set
forth on PVx Interim Balance Sheet. PVx has no actual or potential liability
for
any Tax obligation of any taxpayer (including without limitation any affiliated
group of corporations or other entities that included PVx during a prior period)
other than PVx. All Taxes that PVx is or was required by law to withhold or
collect have been duly withheld or collected and, to the extent required, have
been paid to the proper Governmental Entity.
(c)
PVx has
delivered or made available to NVS complete and accurate copies of all federal
income Tax Returns, examination reports and statements of deficiencies assessed
against or agreed to by PVx. No examination or audit of any Tax Return of PVx
by
any Governmental Entity has ever been made or is currently in progress or,
to
the knowledge of PVx, threatened or contemplated. PVx has not been informed
by
any jurisdiction that the jurisdiction believes that PVx was required to file
any Tax Return that was not filed. PVx has not waived any statute of limitations
with respect to Taxes or agreed to an extension of time with respect to a Tax
assessment or deficiency.
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(d)
PVx: (i)
is not a "consenting corporation" within the meaning of Section 341(f) of the
Code, and none of the assets of PVx are subject to an election under Section
341(f) of the Code; (ii) has not been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code during the
applicable period specified in Section 897(c)(l)(A)(ii) of the Code; (iii)
has
not made any payments, is obligated to make any payments, and is not a party
to
any agreement that could obligate it to make any payments that may be treated
as
an "excess parachute payment" under Section 280G of the Code; (iv) has no actual
or potential liability for any Taxes of any person under Treasury Regulation
Section 1.1502-6 (or any similar provision of federal, state, local, or foreign
law), or as a transferee or successor, by contract, or otherwise; or (v) is
not
and has not been required to make a basis reduction pursuant to Treasury
Regulation Section 1.1502-20(b) or Treasury Regulation Section
1.337(d)-2(b).
(e) None
of
the assets of PVx: (i) is property that is required to be treated as being
owned
by any other person pursuant to the provisions of former Section 168(f)(8)
of
the Code; (ii) is "tax-exempt use property" within the meaning of Section 168(h)
of the Code; or (iii) directly or indirectly secures any debt the interest
on
which is tax exempt under Section 103(a) of the Code.
(f) PVx
has
not undergone a change in its method of accounting resulting in an adjustment
to
its taxable income pursuant to Section 481 of the Code.
(g) No
state
or federal "net operating loss" of PVx determined as of the Effective Date
is
subject to limitation on its use pursuant to Section 382 of the Code or
comparable provisions of state law as a result of any "ownership change" within
the meaning of Section 382(g) of the Code or comparable provisions of any state
law occurring prior to the Closing Date.
2.10 Assets.
PVx
owns or leases all tangible assets necessary for the conduct of its business
as
presently conducted and as presently proposed to be conducted. Each such
tangible asset is free from material defects, has been maintained in accordance
with normal industry practice, is in good operating condition and repair
(subject to normal wear and tear) and is suitable for the purposes for which
it
presently is used. No asset of PVx (tangible or intangible) is subject to any
Security Interest.
2.11 Owned
Real Property.
PVx
owns no real property.
2.12 Real
Property Leases.
PVx
leases no real property other than the lease to its principal place of business,
which is located at 000
X.
00xx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx, an accurate copy of which has been made available to
NVS.
Such
leased is legal, valid, binding, enforceable and in full force and effect,
and
neither PVx nor any; other party is in breach or violation of, or default under,
such lease, and no event has occurred, is pending or, to the knowledge of PVx,
is threatened, which, after the giving of notice, with lapse of time, or
otherwise, would constitute a breach or default by PVx or, to the knowledge
of
PVx, any other party under such lease or sublease. PVx has not assigned,
transferred, conveyed, mortgaged, deeded in trust or encumbered any interest
in
the leasehold or subleasehold
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2.13 Intellectual
Property.
PVx
owns or has the right to use all Intellectual Property (as defined below)
necessary (i) to use, manufacture, market and distribute the products
manufactured, marketed, sold or licensed, and to provide the services provided,
by PVx to other parties (together, the "Customer
Deliverables")
and
(ii) to operate the internal systems of PVx that are material to its business
or
operations, including, without limitation, computer hardware systems, software
applications and embedded systems (the "Internal
Systems";
the
Intellectual Property owned by or licensed to PVx and incorporated in or
underlying the Customer Deliverables or the Internal Systems is referred to
herein as the "PVx
Intellectual Property").
Each
item of PVx Intellectual Property will be owned or available for use by the
Surviving Corporation immediately following the Closing on substantially
identical terms and conditions as it was immediately prior to the Closing.
PVx
has taken all reasonable measures to protect the proprietary nature of each
item
of PVx Intellectual Property. To the knowledge of PVx, (a) no person or entity
has any rights to any of PVx Intellectual Property owned by PVx except pursuant
to agreements or licenses entered into by PVx and such person in the ordinary
course, and (b) no other person or entity is infringing, violating or
misappropriating any of PVx Intellectual Property. For purposes of this
Agreement, "Intellectual
Property"
means
all (i) patents and patent applications, (ii) copyrights and registrations
thereof, (iii) computer software, data and documentation, (iv) trade secrets
and
confidential business information, whether patentable or unpatentable and
whether or not reduced to practice, know-how, manufacturing and production
processes and techniques, research and development information, copyrightable
works, financial, marketing and business data, pricing and cost information,
business and marketing plans and customer and supplier lists and information,
(v) trademarks, service marks, trade names, domain names and applications and
registrations therefor and (vi) other proprietary rights relating to any of
the
foregoing.
2.14 Contracts.
PVx is
not a party to any material agreements, other than a license from Nimble Group,
Inc., to use certain of the PVx Intellectual Property, a copy of which has
been
made available to NVS.
2.15
Powers of Attorney.
There
are no outstanding powers of attorney executed on behalf of PVx.
2.16 Insurance.
PVx
maintains insurance policies of the type and in amounts customarily carried
by
organizations conducting businesses or owning assets similar to those of PVx.
There is no material claim pending under any such policy as to which coverage
has been questioned, denied or disputed by the underwriter of such policy.
All
premiums due and payable under all such policies have been paid, PVx is not
liable for retroactive premiums or similar payments, and PVx is otherwise in
compliance in all material respects with the terms of such policies. PVx has
no
knowledge of any threatened termination of, or material premium increase with
respect to, any such policy. Each such policy will continue to be enforceable
and in full force and effect immediately following the Closing in accordance
with the terms thereof as in effect immediately prior to the
Closing.
2.17 Litigation.
As of
the date of this Agreement, there is no action, suit, proceeding, claim,
arbitration or investigation before any Governmental Entity or before any
arbitrator (a "Legal
Proceeding")
which
is pending or has been threatened in writing against PVx.
-71-
2.18 Warranties.
No
service sold or delivered by PVx is subject to any guaranty, warranty, right
of
credit or other indemnity other than the applicable standard terms and
conditions of sale of the PVx, which have been made available to NVS
2.19 Employees.
PVx is
not a party to or bound by any collective bargaining agreement, nor has it
experienced any strikes, grievances, claims of unfair labor practices or other
collective bargaining disputes. PVx has no knowledge of any organizational
effort made or threatened by or on behalf of any labor union with respect to
employees of PVx. To the knowledge of PVx there are no circumstances or facts
which could individually or collectively give rise to a suit based in
discrimination of any kind.
2.20 Employee
Benefits.
(a) For
purposes of this Agreement, the following terms shall have the following
meanings:
(i) "Employee
Benefit Plan"
means
any "employee pension benefit plan" (as defined in Section 3(2) of ERISA),
any
"employee welfare benefit plan" (as defined in Section 3(1) of ERISA), and
any
other written or oral plan, agreement or arrangement involving direct or
indirect compensation, including without limitation insurance coverage,
severance benefits, disability benefits, deferred compensation, bonuses, stock
options, stock purchase, phantom stock, stock appreciation or other forms of
incentive compensation or post-retirement compensation.
(ii) "ERISA"
means
the Employee Retirement Income Security Act of 1974, as amended.
(iii) "ERISA
Affiliate"
means
any entity which is, or at any applicable time was, a member of (1) a controlled
group of corporations (as defined in Section 414(b) of the Code), (2) a group
of
trades or businesses under common control (as defined in Section 414(c) of
the
Code), or (3) an affiliated service group (as defined under Section 414(m)
of
the Code or the regulations under Section 414(o) of the Code), any of which
includes or included PVx.
(b) Each
Employee Benefit Plan maintained or contributed to by PVx has been administered
in all material respects in accordance with its terms and PVx and each ERISA
Affiliate has in all material respects met its obligations with respect to
such
Employee Benefit Plan and has made all required contributions thereto. PVx,
each
ERISA Affiliate and each Employee Benefit Plan are in compliance in all material
respects with the currently applicable provisions of ERISA and the Code and
the
regulations thereunder (including without limitation Section 4980 B of the
Code,
Subtitle K, Chapter 100 of the Code and Sections 601 through 608 and Section
701
et seq. of ERISA). All filings and reports as to each Employee Benefit Plan
required to have been submitted to the Internal Revenue Service or to the United
States Department of Labor have been duly submitted.
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(c) To
the
knowledge of PVx, there are no Legal Proceedings (except claims for benefits
payable in the normal operation of the Employee Benefit Plans and proceedings
with respect to qualified domestic relations orders) against or involving any
Employee Benefit Plan or asserting any rights or claims to benefits under any
Employee Benefit Plan that could give rise to any material
liability.
(d)
All the
Employee Benefit Plans that are intended to be qualified under Section 401(a)
of
the Code have received determination letters from the Internal Revenue Service
to the effect that such Employee Benefit Plans are qualified and the plans
and
the trusts related thereto are exempt from federal income taxes under Sections
401(a) and 501(a), respectively, of the Code, no such determination letter
has
been revoked and revocation has not been threatened, and no such Employee
Benefit Plan has been amended since the date of its most recent determination
letter or application therefor in any respect, and no act or omission has
occurred, that would adversely affect its qualification or materially increase
its cost. Each Employee Benefit Plan which is required to satisfy Section
401(k)(3) or Section 401(m)(2) of the Code has been tested for compliance with,
and satisfies the requirements of, Section 401(k)(3) and Section 401(m)(2)
of
the Code for each plan year ending prior to the Closing Date.
(e) Neither
PVx nor any ERISA Affiliate has ever maintained an Employee Benefit Plan subject
to Section 412 of the Code or Title IV of ERISA.
(f)
At no
time has PVx or any ERISA Affiliate been obligated to contribute to any
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA).
(g)
There
are no unfunded obligations under any Employee Benefit Plan providing benefits
after termination of employment to any employee of PVx (or to any beneficiary
of
any such employee), including but not limited to retiree health coverage and
deferred compensation, but excluding continuation of health coverage required
to
be continued under Section 4980B of the Code or other applicable law and
insurance conversion privileges under state law. The assets of each Employee
Benefit Plan which is funded are reported at their fair market value on the
books and records of such Employee Benefit Plan.
(h)
No act
or omission has occurred and no condition exists with respect to any Employee
Benefit Plan maintained by PVx or any ERISA Affiliate that would subject PVx
or
any ERISA Affiliate to (i) any material fine, penalty, tax or liability of
any
kind imposed under ERISA or the Code or (ii) any contractual indemnification
or
contribution obligation protecting any fiduciary, insurer or service provider
with respect to any Employee Benefit Plan.
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(i)
No
Employee Benefit Plan is funded by, associated with or related to a "voluntary
employee's beneficiary association" within the meaning of Section 501(c)(9)
of
the Code.
(j)
Each
Employee Benefit Plan is amendable and terminable unilaterally by PVx at any
time without liability to PVx as a result thereof and no Employee Benefit Plan,
plan documentation or agreement, summary plan description or other written
communication distributed generally to employees by its terms prohibits PVx
from
amending or terminating any such Employee Benefit Plan.
(k)
No
agreement with any shareholder, director, executive officer or other key
employee of PVx is materially altered upon the occurrence of a transaction
involving PVx of the nature of the transactions contemplated by this
Agreement.
2.21 Environmental
Matters.
(a)
PVx has
complied with all applicable Environmental Laws (as defined below). There is
no
pending or, to the knowledge of PVx, threatened civil or criminal litigation,
written notice of violation, formal administrative proceeding, or investigation,
inquiry or information request by any Governmental Entity, relating to any
Environmental Law involving PVx. For purposes of this Agreement, "Environmental
Law"
means
any federal, state or local law, statute, rule or regulation or the common
law
relating to the environment or occupational health and safety, including without
limitation any statute, regulation, administrative decision or order pertaining
to (i) treatment, storage, disposal, generation and transportation of
industrial, toxic or hazardous materials or substances or solid or hazardous
waste; (ii) air, water and noise pollution; (iii) groundwater and soil
contamination; (iv) the release or threatened release into the environment
of
industrial, toxic or hazardous materials or substances, or solid or hazardous
waste, including without limitation emissions, discharges, injections, spills,
escapes or dumping of pollutants, contaminants or chemicals; (v) the protection
of wild life, marine life and wetlands, including without limitation all
endangered and threatened species; (vi) storage tanks, vessels, containers,
abandoned or discarded barrels, and other closed receptacles; (vii) health
and
safety of employees and other persons; and (viii) manufacturing, processing,
using, distributing, treating, storing, disposing, transporting or handling
of
materials regulated under any law as pollutants, contaminants, toxic or
hazardous materials or substances or oil or petroleum products or solid or
hazardous waste. As used above, the terms "release" and "environment" shall
have
the meaning set forth in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA”).
(b) To
the
knowledge of PVx there is no material environmental liability with respect
to
any solid or hazardous waste transporter or treatment, storage or disposal
facility that has been used by PVx.
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2.22 Legal
Compliance.
PVx,
and the conduct and operations of its business, are in compliance with each
applicable law (including rules and regulations thereunder) of any federal,
state, local or foreign government, or any Governmental Entity, except for
any
violations or defaults that, individually or in the aggregate, have not had
and
would not reasonably be expected to have a Material Adverse Effect.
2.23 Certain
Business Relationships With Affiliates.
No
Affiliate of PVx (a) owns any property or right, tangible or intangible, which
is used in the business of PVx, (b) has any claim or cause of action against
PVx, or (c) owes any money to, or is owed any money by, PVx; except that Nimble
Group, Inc., an affiliate of PVx, is the licensor of certain of the PVx
Intellectual Property to PVx, provides certain services to PVx and, in
connection therewith, is entitled to receive certain payments from PVx.
2.24 Brokers'
Fees.
PVx has
no liability or obligation to pay any fees or commissions to any broker, finder
or agent with respect to the transactions contemplated by this
Agreement.
2.25 Books
and Records.
The
minute books and other similar records of PVx contain complete and accurate
records of all actions taken at any meetings of PVx's shareholders, Board of
Directors or any committee thereof and of all written consents executed in
lieu
of the holding of any such meeting. The books and records of PVx accurately
reflect in all material respects the assets, liabilities, business, financial
condition and results of operations of PVx and have been maintained in
accordance with good business and bookkeeping practices.
2.26 Disclosure.
No
representation or warranty by PVx contained in this Agreement, and no statement
contained in any other document, certificate or other instrument delivered
or to
be delivered by or on behalf of PVx pursuant to this Agreement, contains or
will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary, in light of the circumstances under which it was
or
will be made, in order to make the statements herein or therein not misleading.
PVx has disclosed to NVS all material information relating to its business
PVx
and the transactions contemplated by this Agreement.
2.27 Board
Actions.
PVx's
Board of Directors (a) has unanimously determined that the Merger is fair and
in
the best interests of PVx shareholders and is on terms that are fair to such
PVx
shareholders and has recommended the Merger to PVx shareholders, and (b) shall
submit the Merger and this Agreement to the vote and approval of PVx
shareholders or the approval of PVx shareholders by written
consent.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF NVS
AND
ACQUISITION SUBSIDIARY
Each
of
NVS and Acquisition Subsidiary represents and warrants to PVx as
follows:
3.1 Organization,
Qualification and Corporate Power.
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(a) Each
of
NVS and Acquisition Subsidiary: is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and has
furnished or made available to PVx complete and accurate copies of its
Certificate of Incorporation and Bylaws. .
(b) NVS
is
duly qualified to conduct business and is in corporate and tax good standing
under the laws of each jurisdiction in which the nature of its businesses or
the
ownership or leasing of its properties requires such qualification; has all
+requisite corporate power and authority to carry on the businesses in which
it
is engaged and to own and use the properties owned and used by it.
(c) Acquisition
Subsidiary is a newly-formed entity and has never transacted business.
Acquisition Subsidiary has no assets other than the nominal amounts contributed
to it by NVS in consideration for the issuance of the shares of its Common
Stock
owned by NVS. Acquisition Subsidiary has no liabilities.
3.2 Capitalization.
(a) The
authorized capital stock of NVS consists of 500,000,000 shares of NVS Common
Stock, of which 50,496,086 shares were issued and outstanding as of the date
of
this Agreement. The NVS Common Stock is presently eligible for quotation and
is
quoted on
the
Pink Sheets Electronic Quotation Service.
All of
the issued and outstanding shares of NVS Common Stock are duly authorized,
validly issued, fully paid, non-assessable and free of all preemptive rights.
All of the Merger Shares, when issued in accordance with this Agreement will
be
duly authorized, validly issued, fully paid, non-assessable and free of all
preemptive rights. There are no outstanding or authorized options, warrants,
conversion, stock appreciation, phantom stock or similar rights with respect
to
NVS or the NVS Common Stock.. There are no agreements to which NVS is a party
or
by which it is bound with respect to the voting (including without limitation
voting trusts or proxies), registration under the Securities Act, or sale or
transfer (including without limitation agreements relating to pre-emptive
rights, rights of first refusal, co-sale rights or "drag-along" rights) of
any
securities of NVS. To the knowledge of PVx, there are no agreements among other
parties, to which NVS is not a party and by which it is not bound, with respect
to the voting (including without limitation voting trusts or proxies) or sale
or
transfer (including without limitation agreements relating to rights of first
refusal, co-sale rights or "drag-along" rights) of any securities of NVS. All
of
the issued and outstanding NVS Shares were issued in compliance with applicable
federal and state securities laws
(b) The
authorized capital stock of Acquisition Subsidiary consists of 75,000 shares
of
common stock without par value, of which 100 shares are issued and outstanding
as of the date of this Agreement, all of which are owned by NVS. All of the
issued and outstanding shares of Acquisition Subsidiary Common Stock are duly
authorized, validly issued, fully paid, non-assessable and free of all
preemptive rights. There are no outstanding or authorized options, warrants,
conversion, stock appreciation, phantom stock or similar rights with respect
to
Acquisition Subsidiary or its Common Stock. There are no agreements to which
NVS
is a party or by which it is bound with respect to the voting, sale or transfer
of Acquisition Subsidiary Common Stock.
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3.3 Authorization
of Transaction.
Each of
NVS and Acquisition Subsidiary has all requisite power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery by NVS and Acquisition Subsidiary of this Agreement
and
the agreements contemplated hereby and thereby (collectively, the "Transaction
Documentation")
and,
subject to the adoption of this Agreement and the approval of the Merger by
a
majority of the votes represented by the outstanding Common Stock of Acquisition
Subsidiary entitled to vote on this Agreement and the Merger, the consummation
by NVS and the Acquisition Subsidiary of the transactions contemplated hereby
and thereby have been duly and validly authorized by all necessary corporate
action on the part of the Buyer and Acquisition Subsidiary, respectively. The
consummation by NVS and the Acquisition Subsidiary of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate action on the part of the NVS and Acquisition Subsidiary,
respectively. This Agreement has been duly and validly executed and delivered
by
NVS and Acquisition Subsidiary and constitutes a valid and binding obligation
of
NVS and Acquisition Subsidiary, enforceable against them in accordance with
its
terms.
3.4 Non-contravention.
Subject
to compliance with the applicable requirements of the Securities Act of 1933,
as
amended, and any applicable state securities laws and the filing of the
Certificate of Merger as required by the Nevada Corporations Law, neither the
execution and delivery by NVS or Acquisition Subsidiary of this Agreement or
the
Transaction Documentation, nor the consummation by NVS or Acquisition Subsidiary
of the transactions contemplated hereby or thereby, will (a) conflict with
or
violate any provision of the Certificate of Incorporation or Bylaws of NVS
or
Acquisition Subsidiary, (b) require on the part of NVS or Acquisition Subsidiary
any filing with, or permit, authorization, consent or approval of, any
Governmental Entity, (c) conflict with, result in breach of, constitute (with
or
without due notice or lapse of time or both) a default under, result in the
acceleration of obligations under, create in any party any right to terminate,
modify or cancel, or require any notice, consent or waiver under, any contract
or instrument to which NVS or Acquisition Subsidiary is a party or by which
either is bound or to which any of their assets are subject.
3.5 Subsidiaries.
(a) NVS
has
no Subsidiaries other than Acquisition Subsidiary. Acquisition Subsidiary has
no
Subsidiaries.
(b) Neither
NVS nor Acquisition Subsidiary controls directly or indirectly or has any direct
or indirect equity participation or similar interest in any corporation,
partnership, limited liability company, joint venture, trust or other business
association which is not a Subsidiary.
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3.6 Compliance
with Laws.
NVS:
(a) and
the
conduct and operations of its business, is in compliance with each applicable
law (including rules and regulations thereunder) of any federal, state, local
or
foreign government, or any Governmental Entity, except for any violations or
defaults that, individually or in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect;
(b) has
complied with all federal and state securities laws and
regulations;
(c) has
not,
and the past and present officers, directors and Affiliates of NVS have not,
been the subject of, nor does any officer or director of NVS have any reason
to
believe that NVS or any of its officers, directors or Affiliates will be the
subject of, any civil or criminal proceeding or investigation by any federal
or
state agency alleging a violation of securities laws;
(d) has
not
been the subject of any voluntary or involuntary bankruptcy proceeding, nor
has
it been a party to any material litigation;
(e) has
not,
and the past and present officers, directors and Affiliates have not, been
the
subject of, nor does any officer or director of NVS have any reason to believe
that NVS or any of its officers, directors or affiliates will be the subject
of,
any civil, criminal or administrative investigation or proceeding brought by
any
federal or state agency having regulatory authority over such entity or
person;
(f) does
not
and will not on the Closing, have any liabilities, contingent or otherwise,
including but not limited to notes payable and accounts payable, and is not
a
party to any executory agreements; and
(g) is
not a
"blank check company" as such term is defined by Rule 419 of the Securities
Act.
3.7 Financial
Statements.
NVS has
provided or made available to NVS (a) the unaudited balance sheet of NVS at
December 31, 2005, and the related statements of operations and cash flows
for
the year then ended period from its formation until such date (collectively,
the
"NVS
Year-End Financial Statements")
and
(b) the unaudited balance sheet of NVS (the "NVS
Interim Balance Sheet")
at
January 31, 2006 (the "NVS
Interim Balance Sheet Date")
and
the related statements of operations and cash flows for the period then ended
(collectively, the "NVS
Interim Financial Statements,"
and
with the Year-End Financial Statements, the "NVS
Financial Statements").
The
NVS Financial
Statements have been prepared in accordance with United States generally
accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods covered thereby, fairly
present the financial condition, results of operations and cash flows of
NVS as
of the
respective dates thereof and for the periods referred to therein and are
consistent with the books and records of NVS; provided, however, that
NVS Financial
Statements referred to in clause (b) above are subject to normal recurring
year-end adjustments (which will not be material) and do not include
footnotes.
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3.8 Absence
of Certain Changes.
Since
the NVS Interim Balance Sheet Date, there has occurred no event or development
which, individually or in the aggregate, has had, or could reasonably be
expected to have in the future, a Material Adverse Effect.
3.9 Litigation.
As of
the date of this Agreement, there is no Legal Proceeding which is pending or,
to
NVS's knowledge, threatened against NVS which, if determined adversely to NVS,
could have, individually or in the aggregate, a Material Adverse Effect or
which
in any manner challenges or seeks to prevent, enjoin, alter or delay the
transactions contemplated by this Agreement.
3.10 Undisclosed
Liabilities.
NVS has
no liability (whether known or unknown, whether absolute or contingent, whether
liquidated or unliquidated and whether due or to become due), except for
liabilities shown on NVS Interim Balance Sheet.
3.11 Tax
Matters.
(a) NVS
has
filed on a timely basis all Tax Returns that it was required to file, and all
such Tax Returns were complete and accurate in all material respects. NVS is
not
nor has it ever been a member of a group of corporations with which it has
filed
(or been required to file) consolidated, combined or unitary Tax Returns. NVS
has paid on a timely basis all Taxes that were due and payable. The unpaid
Taxes
of NVS for tax periods through NVS Interim Balance Sheet Date do not exceed
the
accruals and reserves for Taxes (excluding accruals and reserves for deferred
Taxes established to reflect timing differences between book and Tax income)
set
forth on NVS Interim Balance Sheet. NVS has no actual or potential liability
for
any Tax obligation of any taxpayer (including without limitation any affiliated
group of corporations or other entities that included NVS during a prior
period). All Taxes that NVS is or was required by law to withhold or collect
have been duly withheld or collected and, to the extent required, have been
paid
to the proper Governmental Entity.
(b) NVS
has
delivered or made available to PVx complete and accurate copies of all federal
income Tax Returns, examination reports and statements of deficiencies assessed
against or agreed to by NVS. No examination or audit of any Tax Return of NVS
by
any Governmental Entity is currently in progress or, to the knowledge of NVS,
threatened or contemplated. NVS has not been informed by any jurisdiction that
the jurisdiction believes that NVS was required to file any Tax Return that
was
not filed. NVS has not waived any statute of limitations with respect to Taxes
or agreed to an extension of time with respect to a Tax assessment or
deficiency.
(c) NVS:
(i)
is not a "consenting corporation" within the meaning of Section 341(f) of the
Code, and none of the assets of NVS are subject to an election under Section
341(f) of the Code; (ii) has been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code during the
applicable period specified in Section 897(c)(l)(A)(ii) of the Code; (iii)
has
made any payments, is obligated to make any payments, or is a party to any
agreement that could obligate it to make any payments that may be treated as
an
"excess parachute payment" under Section 280G of the Code; (iv) has any actual
or potential liability for any Taxes of any other person under Treasury
Regulation Section 1.1502-6 (or any similar provision of federal, state, local,
or foreign law), or as a transferee or successor, by contract, or otherwise;
or
(v) is or has been required to make a basis reduction pursuant to Treasury
Regulation Section 1.1502-20(b) or Treasury Regulation Section
1.337(d)-2(b).
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(d) None
of
the assets of NVS: (i) is property that is required to be treated as being
owned
by any other person pursuant to the provisions of former Section 168(f)(8)
of
the Code; (ii) is "tax-exempt use property" within the meaning of Section 168(h)
of the Code; or (iii) directly or indirectly secures any debt the interest
on
which is tax exempt under Section 103(a) of the Code.
(e) NVS
has
not undergone a change in its method of accounting resulting in an adjustment
to
its taxable income pursuant to Section 481 of the Code.
(f) No
state
or federal "net operating loss" of NVS determined as of the Closing Date is
subject to limitation on its use pursuant to Section 382 of the Code or
comparable provisions of state law as a result of any "ownership change" within
the meaning of Section 382(g) of the Code or comparable provisions of any state
law occurring prior to the Closing Date.
3.12 Assets.
NVS has
no assets, real or personal, tangible or intangible, other than the cash shown
on the Financial Statements
(a) Real
Property Leases.
NVS
leases no real property.
3.13 Intellectual
Property.
(a) NVS
neither owns nor licenses any Intellectual Property.
(b) NVS
has
not infringed, violated or misappropriated any Intellectual Property rights
of
any person or entity, nor has it received any complaint, claim or notice, or
written threat thereof, alleging any such infringement, violation or
misappropriation.
3.14 Contracts.
NVS is
not a party to any Contract.
3.15 Powers
of Attorney.
There
are no outstanding powers of attorney executed on behalf of NVS.
3.16 Insurance.
NVS has
in full force and effect polices of insurance of the type and in amounts
customarily carried by organizations conducting businesses or owning assets
similar to those of NVS. There is no material claim pending under any such
policy as to which coverage has been questioned, denied or disputed by the
underwriter of such policy. All premiums due and payable under all such policies
have been paid, and NVS is not liable for retroactive premiums or similar
payments
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3.17 Employees.
NVS has
no employees.
3.18 Employee
Benefits.
(a)
Neither
NVS nor any ERISA Affiliate maintains or contributes, or has ever maintained
or
contributed to, any Employee Benefit Plans
(b) At
no
time has NVS or any ERISA Affiliate been obligated to contribute to any
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA).
(c) NVS
has
no:
(i) agreement
with any present or former stockholder, director, executive officer or other
key
employee (A) the benefits of which are contingent, or the terms of which are
materially altered, upon the occurrence of a transaction involving NVS of the
nature of any of the transactions contemplated by this Agreement, (B) providing
any term of employment or compensation guarantee or (C) providing severance
benefits or other benefits after the termination of employment of such director,
executive officer or key employee;
(ii) agreement,
plan or arrangement under which any person may receive payments from NVS that
may be subject to the tax imposed by Section 4999 of the Code or included in
the
determination of such person's "parachute payment" under Section 280G of the
Code; and
(iii) agreement
or plan binding NVS, including without limitation any stock option plan, stock
appreciation right plan, restricted stock plan, stock purchase plan, severance
benefit plan or Employee Benefit Plan, any of the benefits of which will be
increased, or the vesting of the benefits of which will be accelerated, by
the
occurrence of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which will be calculated on the basis of any
of
the transactions contemplated by this Agreement. The accruals for vacation,
sickness and disability expenses are accounted for on the Most Recent Balance
Sheet and are adequate and properly reflect the expenses associated therewith
in
accordance with generally accepted accounting principles.
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3.19 Environmental
Matters.
(a) NVS
has
complied with all applicable Environmental Laws. There is no pending or, to
the
knowledge of NVS, threatened civil or criminal litigation, written notice of
violation, formal administrative proceeding, or investigation, inquiry or
information request by any Governmental Entity, relating to any Environmental
Law involving NVS.
(b)
NVS is
not aware of any material environmental liability of any solid or hazardous
waste transporter or treatment, storage or disposal facility that has been
used
by NVS.
3.20 Permits.
There
are no permits, licenses, registrations, certificates, orders or approvals
from
any Governmental Entity (including without limitation those issued or required
under Environmental Laws and those relating to the occupancy or use of owned
or
leased real property) that are required to be issued to or held by NVS in
connection with the Business or operations of NVS as presently conducted.
3.21 Certain
Business Relationships With Affiliates.
No
Affiliate of NVS (a) owns any property or right, tangible or intangible, which
is used in the business of NVS, (b) has any claim or cause of action against
NVS, (c) is a party to any Contract with NVS or (d) owes any money to, or is
owed any money by, NVS.
3.22 Tax-Free
Reorganization.
(a) NVS
(i)
is not an "investment company" as defined in Section 368(a)(2)(F)(iii) and
(iv)
of the Code.
(b) Acquisition
Subsidiary is a wholly-owned subsidiary of NVS, formed solely for the purpose
of
engaging in the Merger, and will carry on no business prior to the
Merger.
(c) Immediately
prior to the Merger, NVS will be in control of Acquisition Subsidiary within
the
meaning of Section 368(c) of the Code.
(d) Immediately
following the Merger, the Surviving Corporation will hold at least 90% of the
fair market value of the net assets and at least 70% of the fair market value
of
the gross assets held by Acquisition Subsidiary immediately prior to the Merger
(for purposes of this representation, amounts used by the Acquisition Subsidiary
to pay reorganization expenses, if any, will be included as assets of
Acquisition Subsidiary held immediately prior to the Merger).
(e) NVS
has
no present plan or intention to reacquire any of the Merger Shares.
-82-
(f)
Acquisition Subsidiary will have no liabilities assumed by the Surviving
Corporation and will not transfer to the Surviving Corporation any assets
subject to liabilities in the Merger.
(g) Following
the Merger, the Surviving Corporation will continue PVx's historic business
or
use a significant portion of PVx's historic business assets in a business as
required by Section 368 of the Code and the Treasury Regulations promulgated
thereunder.
3.23 Brokers'
Fees.
Neither
NVS nor Acquisition Subsidiary has any liability or obligation to pay any fees
or commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement.
3.24 Disclosure.
No
representation or warranty by NVS contained in this Agreement or in any of
the
Transaction Documentation, and no statement contained in the any document,
certificate or other instrument delivered or to be delivered by or on behalf
of
NVS pursuant to this Agreement or therein, contains or will contain any untrue
statement of a material fact or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was or will be made,
in
order to make the statements herein or therein not misleading.
3.25 Interested
Party Transactions.
To the
knowledge of NVS, no officer, director or stockholder of NVS or any "affiliate"
(as such term is defined in Rule 12b-2 under the Exchange Act) or "associate"
(as such term is defined in Rule 405 under the Securities Act) of any such
person 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 NVS or (ii) purchases from or sells
or
furnishes to NVS any goods or services, or (b) a beneficial interest in any
contract or agreement to which NVS is a party or by which it may be bound or
affected. NVS has not extended or maintained credit, arranged for the extension
of credit, or renewed an extension of credit, in the form of a personal loan
to
or for any director or executive officer (or equivalent thereof) of
NVS.
3.26 Duty
to Make Inquiry.
To the
extent that any of the representations or warranties in this Section 3 are
qualified by "knowledge" or "belief," NVS represents and warrants that it has
made due and reasonable inquiry and investigation concerning the matters to
which such representations and warranties relate, including, but not limited
to,
diligent inquiry by its directors, officers and key personnel.
3.27 Minute
Books
. The
minute books, if any, of NVS contain, in all material respects, a complete
and
accurate summary of all meetings of directors and stockholders or actions by
written resolutions since the time of organization of each such corporation
through the date of this Agreement, and reflect all transactions referred to
in
such minutes and resolutions accurately, except for omissions which are not
material. NVS has provided true and complete copies of all such minute books,
if
any, to PVx's representatives.
3.28 Board
Action.
NVS's
Board of Directors (a) has unanimously determined that the Merger is advisable
and in the best interests of NVS's stockholders and is on terms that are fair
to
such NVS stockholders and has recommended the Merger to NVS stockholders, and
(b) shall submit the Merger and this Agreement to the vote and approval of
NVS
stockholders or the approval of NVS stockholders by written
consent.
-83-
ARTICLE
IV
COVENANTS
4.1 Closing
Efforts.
Each of
the Parties shall use its best efforts, to the extent commercially reasonable
("Reasonable
Best Efforts"),
to
take all actions and to do all things necessary, proper or advisable to
consummate the transactions contemplated by this Agreement, including without
limitation using its Reasonable Best Efforts to ensure that (i) its
representations and warranties remain true and correct in all material respects
through the Closing Date and (ii) the conditions to the obligations of the
other
Parties to consummate the Merger are satisfied.
4.2 Governmental
and Third-Party Notices and Consents.
(a) Waivers,
etc.
Each
Party shall use its Reasonable Best Efforts to obtain, at its expense, all
waivers, permits, consents, approvals or other authorizations from Governmental
Entities, and to effect all registrations, filings and notices with or to
Governmental Entities, as may be required for such Party to consummate the
transactions contemplated by this Agreement and to otherwise comply with all
applicable laws and regulations in connection with the consummation of the
transactions contemplated by this Agreement.
(b) Operation
of Business.
Except
as contemplated by this Agreement, during the period from the date of this
Agreement to the Effective Time, PVx shall conduct its operations in the
Ordinary Course of Business and in compliance with all applicable laws and
regulations and, to the extent consistent therewith, use its Reasonable Best
Efforts to preserve intact its current business organization, keep its physical
assets in good working condition, keep available the services of its current
officers and employees and preserve its relationships with customers, suppliers
and others having business dealings with it to the end that its goodwill and
ongoing business shall not be impaired in any material respect.
4.3 Access
to Information.
(a) Each
of
the parties shall permit representatives of the other to have full access (at
all reasonable times, and in a manner so as not to interfere with the normal
business operations of such party to all premises, properties, financial and
accounting records, contracts, other records and documents, and personnel,
of or
pertaining to such party.
-84-
(b) Each
party (i) shall treat and hold as confidential any Confidential Information
(as
defined below), (ii) shall not use any of the Confidential Information except
in
connection with this Agreement, and (iii) if this Agreement is terminated for
any reason whatsoever, shall return to the disclosing party all tangible
embodiments (and all copies) thereof which are in its possession. For purposes
of this Agreement, "Confidential Information" means any confidential or
proprietary information of a party that is furnished in writing to another
party
in connection with this Agreement and is labeled confidential or proprietary;
provided, however, that it shall not include any information (A) which, at
the
time of disclosure, is available publicly, (B) which, after disclosure, becomes
available publicly through no fault of the recipient, (C) which the recipient
knew or to which it had access prior to disclosure or (D) which the recipient
rightfully obtains from a source other than the disclosing party.
4.4 Expenses.
The
costs and expenses (including legal fees and expenses of NVS and PVx) incurred
by each party in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party which incurred the
same.
4.5 Indemnification.
(a) NVS
shall
not, for a period of three years after the Effective Time, take any action
to
alter or impair any exculpatory or indemnification provisions now existing
in
the Articles of Incorporation or Bylaws of PVx for the benefit of any individual
who served as a director or officer of PVx at any time prior to the Effective
Time, except for any changes which may be required to conform with changes
in
applicable law and any changes which do not affect the application of such
provisions to acts or omissions of such individuals prior to the Effective
Time.
(b) From
and
after the Effective Time, NVS agrees that it will, and will cause the Surviving
Corporation to, indemnify and hold harmless each present and former director
and
officer of PVx (the "Indemnified
Executives")
against any costs or expenses (including attorneys' fees), judgments, fines,
losses, claims, damages, liabilities or amounts paid in settlement incurred
in
connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, arising out of or pertaining
to matters existing or occurring at or prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, to the fullest
extent permitted under Nevada law (and NVS and the Surviving Corporation shall
also advance expenses as incurred to the fullest extent permitted under Nevada
law, provided the Indemnified Executive to whom expenses are advanced provides
an undertaking to repay such advances if it is ultimately determined that such
Indemnified Executive is not entitled to indemnification).
-85-
ARTICLE
V
CONDITIONS
TO CONSUMMATION OF MERGER
5.1 Conditions
to Each Party's Obligations.
The
respective obligations of each Party to consummate the Merger are subject to
the
satisfaction of the following conditions:
(a) this
Agreement and the Merger shall have received the Requisite PVx Shareholder
Approval and the approval of NVS, as the sole shareholder of Acquisition
Subsidiary.
(b) satisfactory
completion by NVS and PVx of all necessary legal due diligence; and
(c) Xxxxx
Xxxx, the current President of NVS, or a corporation controlled by him, shall
have executed a consulting agreement satisfactory to him or such corporation,
PVx and NVS, pursuant to which the consultant will be paid a consulting fee
of
$60,000 for one year, which agreement shall be renewable by agreement of the
parties for an additional one-year term.
5.2 Conditions
to Obligations of NVS and Acquisition Subsidiary.
The
obligation of each of NVS and Acquisition Subsidiary to consummate the Merger
is
subject to the satisfaction (or waiver by NVS) of the following additional
conditions:
(a) PVx
shall
have obtained (and shall have provided copies thereof to NVS) all of the
waivers, permits, consents, approvals or other authorizations, and effected
all
of the registrations, filings and notices, that are required in order for it
to
enter into this agreement and to consummate the Merger;
(b) the
representations and warranties of PVx set forth in this Agreement shall be
true
and correct as of the date of this Agreement and shall be true and correct
as of
the Effective Time as though made as of the Effective Time, except to the extent
that the inaccuracy of any such representation or warranty is the result of
events or circumstances occurring subsequent to the date of this Agreement
and
any such inaccuracies, individually or in the aggregate, would not have a
Material Adverse Effect or a material adverse effect on the ability of the
Parties to consummate the transactions contemplated by this Agreement (it being
agreed that any materiality qualifications in particular representations and
warranties shall be disregarded in determining whether any such inaccuracies
would have a Material Adverse Effect for purposes of this Section
5.2(c));
(c) PVx
shall
have performed or complied in all material respects with its agreements and
covenants required to be performed or complied with under this Agreement as
of
or prior to the Effective Time;
-86-
(d) no
Legal
Proceeding shall be pending wherein an unfavorable judgment, order, decree,
stipulation or injunction would (i) prevent consummation of any of the
transactions contemplated by this Agreement, (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation or (iii)
have, individually or in the aggregate, a Material Adverse Effect, and no such
judgment, order, decree, stipulation or injunction shall be in effect;
and
(e) PVx
shall
have delivered to NVS and the Acquisition Subsidiary a certificate (the
"PVx
Certificate")
to the
effect that each of the conditions specified in clauses (a) and (c) of Section
5.1 and clauses (a) through (d) (insofar as clause (d) relates to Legal
Proceedings involving PVx) of this Section 5.2 is satisfied in all
respects.
5.3 Conditions
to Obligations of PVx.
The
obligation of PVx to consummate the Merger is subject to the satisfaction of
the
following additional conditions:
(a) the
representations and warranties of NVS and the Acquisition Subsidiary set forth
in the first sentence of Section 3.1 and Section 3.3 and any representations
and
warranties of NVS and the Acquisition Subsidiary set forth in this Agreement
that are qualified as to materiality shall be true and correct, and the
representations and warranties of NVS and Acquisition Subsidiary set forth
in
this Agreement that are not so qualified (other than those set forth in Section
3.1 and Section 3.3) shall be true and correct in all material respects, in
each
case as of the date of this Agreement and as of the Effective Time as though
made as of the Effective Time, except to the extent such representations and
warranties are specifically made as of a particular date (in which case such
representations and warranties shall be true and correct as of such
date);
(b) each
of
NVS and Acquisition Subsidiary shall have performed or complied with its
agreements and covenants required to be performed or complied with under this
Agreement as of or prior to the Effective Time;
(c) no
Legal
Proceeding shall be pending wherein an unfavorable judgment, order, decree,
stipulation or injunction would (i) prevent consummation of any of the
transactions contemplated by this Agreement, (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation or (iii)
have, individually or in the aggregate, a Material Adverse Effect, and no such
judgment, order, decree, stipulation or injunction shall be in
effect;
(d) NVS
shall
have delivered to PVx a certificate (the "NVS
Certificate")
to the
effect that each of the conditions specified in clauses (a) through (c) (insofar
as clause (e) relates to Legal Proceedings involving NVS) of this Section 5.3
is
satisfied in all respects; and
(e) PVx
shall
have received a certificate of NVS's transfer agent and registrar certifying
that as of the closing Date there are 50,496,086 shares of NVS Common Stock
issued and outstanding, including the shares of NVS Common Stock sold by Xxxxx
Xxxx to PVx that are to be cancelled at the Effective Time
-87-
ARTICLE
VI
INDEMNIFICATION
6.1 Indemnification
by PVx Shareholders.
The PVx
Shareholders receiving the Merger Shares pursuant to Section 1.5 (the
“PVx
Shareholders”)
shall
indemnify NVS in respect of, and hold it harmless against, any and all debts,
obligations and other liabilities (whether absolute, accrued, contingent, fixed
or otherwise, or whether known or unknown, or due or to become due or
otherwise), monetary damages, fines, fees, penalties, interest obligations,
deficiencies, losses and expenses (including without limitation amounts paid
in
settlement, interest, court costs, costs of investigators, fees and expenses
of
attorneys, accountants, financial advisors and other experts, and other expenses
of litigation) ("Damages")
incurred or suffered by the Surviving Corporation or NVS or any Affiliate
thereof resulting from, relating to or constituting:
(a) any
misrepresentation, breach of warranty or failure to perform any covenant or
agreement of PVx contained in this Agreement or the PVx
Certificate;
(b) any
failure of any PVx Shareholder to have good, valid and marketable title to
the
issued and outstanding PVx Shares issued in the name of such PVx Shareholder,
free and clear of all Security Interests; or
(c) any
claim
by a shareholder or former shareholder of PVx, or any other person or entity,
seeking to assert, or based upon: (i) ownership or rights to ownership of any
shares of stock of PVx; (ii) any rights of a shareholder (other than the right
to receive the Merger Shares pursuant to this Agreement or appraisal rights
under the applicable provisions of the Nevada General Corporation Law),
including any option, preemptive rights or rights to notice or to vote; (iii)
any rights under the Articles of Incorporation or Bylaws of PVx; or (iv) any
claim that his, her or its shares were wrongfully repurchased by
PVx.
6.2 Indemnification
by NVS.
NVS
shall indemnify the PVx Shareholders in respect of, and hold them harmless
against, any and all Damages incurred or suffered by them resulting from,
relating to or constituting any misrepresentation, breach of warranty or failure
to perform any covenant or agreement of NVS or the Acquisition Subsidiary
contained in this Agreement or NVS Certificate.
6.3 Indemnification
by NVS Shareholder.
Xxxxx
Xxxx (the “NVS
Shareholder”)
shall
indemnify the PVx Shareholders and the Surviving Corporation in respect of,
and
hold them harmless against, any and all debts, obligations and other liabilities
(whether absolute, accrued, contingent, fixed or otherwise, or whether known
or
unknown, or due or to become due or otherwise), monetary damages, fines, fees,
penalties, interest obligations, deficiencies, losses and expenses (including
without limitation amounts paid in settlement, interest, court costs, costs
of
investigators, fees and expenses of attorneys, accountants, financial advisors
and other experts, and other expenses of litigation) ("Damages") incurred or
suffered by PVx, the Surviving Corporation or any Affiliate thereof resulting
from, relating to or constituting:
-88-
(a) any
misrepresentation, breach of warranty or failure to perform any covenant or
agreement of NVS or the Acquisition Subsidiary contained in this Agreement
or
the NVS Certificate;
(b) any
failure of any shareholder of NVS to have good, valid and marketable title
to
the issued and outstanding NVS Shares issued in the name of such shareholder,
free and clear of all Security Interests; or
(c) any
claim
by a shareholder or former shareholder of NVS, or any other person or entity,
seeking to assert, or based upon: (i) ownership or rights to ownership of any
shares of stock of NVS; (ii) any rights of a shareholder, including any option,
preemptive rights or rights to notice or to vote; or (iii) any rights under
the
Articles of Incorporation or Bylaws of the NVS.
To
the
extent that any of the representations or warranties of NVS or the Acquisition
Subsidiary are qualified by "knowledge" or "belief," the NVS Shareholder
represents and warrants that he has made due and reasonable inquiry and
investigation concerning the matters to which such representations and
warranties relate, including, but not limited to, diligent inquiry of their
respective directors, officers and key personnel
NVS
Shareholder hereby irrevocably waives any and all right to contribution from,
subrogation to or recovery against NVS or Surviving Corporation with respect
to
any liability of any Company Shareholder that may arise under or pursuant to
this Section 6.3 or any of the other agreements and documents executed or to
be
executed by the Parties hereto in order to consummate the transactions
contemplated by this Agreement or such other agreements and documents
contemplated hereby. NVS Shareholder agrees that NVS and the Surviving
Corporation may proceed against NVS Shareholder under this Section 6.3 without
proceeding against any other party for indemnification with respect to the
matters set forth in subsections 6.3(a), 6.3(b), 6.3(c) or pursuant to any
such
other agreement or document..
6.4 Survival
of Representations and Warranties.
All
representations and warranties contained in this Agreement, PVx Certificate
or
NVS Certificate shall (a) survive the Closing and any investigation at any
time
made by or on behalf of NVS or the Indemnifying Shareholders and (b) shall
expire on the date two years following the Closing Date. If NVS delivers to
a
PVx Shareholder, before expiration of a representation or warranty, either
a
claim notice based upon a breach of such representation or warranty, or a notice
that, as a result a legal proceeding instituted by or written claim made by
a
third party, NVS reasonably expects to incur Damages as a result of a breach
of
such representation or warranty (an "Expected
Claim Notice"),
then
such representation or warranty shall survive until, but only for purposes
of,
the resolution of the matter covered by such notice. If the legal proceeding
or
written claim with respect to which an Expected Claim Notice has been given
is
definitively withdrawn or resolved in favor of NVS, NVS shall promptly so notify
the PVx Shareholders.
-89-
6.5 Limitations
on NVS's Claims for Indemnification.
(a) Notwithstanding
anything to the contrary herein, NVS shall not be entitled to recover, or be
indemnified for, Damages arising out of a misrepresentation or breach of
warranty set forth in Article II unless and until the aggregate of all such
Damages paid or payable by the PVx Shareholders collectively exceeds $250,000
(the "Damages
Threshold")
and
then, if such aggregate threshold is reached, NVS shall only be entitled to
recover for Damages in excess of such respective threshold; and in no event
shall any Indemnifying Stockholder be liable under this Article VI for an
aggregate amount whether paid in cash or in shares of NVS Common Stock, greater
than the product of the number of Merger Shares received by such Indemnifying
Stockholder, pursuant to Section 1.5 above, multiplied by the Value. For
purposes of the preceding sentence, each Merger Share delivered by a party
in
payment of his or its obligations under this Article VI shall be valued at
the
Value. The Value shall be the fair market value of each Merger Share, determined
in good faith by the Board of Directors of the Surviving
Corporation.
(b) Except
with respect to claims based on fraud, after the Closing, the rights of the
Indemnified Parties under this Article VI shall be the exclusive remedy of
the
Indemnified Parties with respect to claims resulting from or relating to any
misrepresentation, breach of warranty or failure to perform any covenant or
agreement contained in this Agreement.
(c) No
PVx
Stockholder shall have any right of contribution against PVx or the Surviving
Corporation with respect to any breach by PVx of any of its representations,
warranties, covenants or agreements. The amount of Damages recoverable by NVS
under this Article VI with respect to an indemnity claim shall be reduced by
(i)
any proceeds received by NVS with respect to the Damages to which such indemnity
claim relates, from an insurance carrier and (ii) the amount of any tax savings
actually realized by NVS, for the tax year in which such Damages are incurred,
which are clearly attributable to the Damages to which such indemnity claim
relates (net of any increased tax liability which may result from the receipt
of
the indemnity payment or any insurance proceeds relating to such
Damages).
ARTICLE
VII
MISCELLANEOUS
8.1 Press
Releases and Announcements.
No
Party shall issue any press release or public announcement relating to the
subject matter of this Agreement without the prior written approval of the
other
Parties; provided, however, that any Party may make any public disclosure it
believes in good faith is required by applicable law or regulation (in which
case the disclosing Party shall use reasonable efforts to advise the other
Parties and provide them with a copy of the proposed disclosure prior to making
the disclosure).
-90-
8.2 No
Third Party Beneficiaries.
This
Agreement shall not confer any rights or remedies upon any person other than
the
Parties and their respective successors and permitted assigns; provided,
however, that the provisions in Article I concerning issuance of the Merger
Shares and Article VI concerning indemnification are intended for the benefit
of
PVx Shareholders.
8.3 Entire
Agreement.
This
Agreement (including the documents referred to herein) constitutes the entire
agreement among the Parties and supersedes any prior understandings, agreements
or representations by or among the Parties, written or oral, with respect to
the
subject matter hereof.
8.4 Succession
and Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of its rights, interests or obligations
hereunder without the prior written approval of the other Parties.
8.5 Counterparts
and Facsimile Signature.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument. This Agreement may be executed by facsimile signature.
8.6 Headings.
The
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
8.7 Notices.
All
notices, requests, demands, claims, and other communications hereunder shall
be
in writing. Any notice, request, demand, claim or other communication hereunder
shall be deemed duly delivered four business days after it is sent by registered
or certified mail, return receipt requested, postage prepaid, or one business
day after it is sent for next business day delivery via a reputable nationwide
overnight courier service, in each case to the intended recipient as set forth
below:
|
If
to Pure Vanilla eXchange, Inc.,
notice
shall be sent to:
|
Xxxxxx Xxxxxx, President |
|
Pure
Vanilla eXchange
000
X. 00xx
Xxxxxx
Xxx
Xxxx, XX 00000
|
|
| with a copy to: | Xxxxxx X. Xxxxxx, Esq. |
|
0000
Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
(585)
232-5300
|
-91-
|
If
to NVS Entertainment, Inc.
or
NVS Acquisition Corp,
notice
shall be sent to:
|
Xxxxx Xxxx |
|
0000
Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
|
|
| with a copy to: | Xxxx Wykidal, |
| 000 Xxxxxxx Xxx, Xxxxx X0 | |
| Xxxxx Xxxx, XX 00000-0000 |
Any
Party
may give any notice, request, demand, claim or other communication hereunder
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail), but no such notice,
request, demand, claim or other communication shall be deemed to have been
duly
given unless and until it actually is received by the party for whom it is
intended. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
8.8 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Nevada without giving effect to any choice or conflict
of
law provision or rule (whether of the State of Nevada or any other jurisdiction)
that would cause the application of laws of any jurisdictions other than those
of the State of Nevada.
8.9 Amendments
and Waivers.
The
Parties may mutually amend any provision of this Agreement at any time prior
to
the Effective Time Approval shall be subject to any restrictions contained
in
the Nevada General Corporation Law. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
all
of the Parties. No waiver of any right or remedy hereunder shall be valid unless
the same shall be in writing and signed by the Party giving such waiver. No
waiver by any Party with respect to any default, misrepresentation or breach
of
warranty or covenant hereunder shall be deemed to extend to any prior or
subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
8.10 Severability.
Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability
of
the remaining terms and provisions hereof or the validity or enforceability
of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or unenforceable, the
Parties agree that the court making the determination of invalidity or
unenforceability shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term
or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified.
-92-
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
above written.
Pure
Vanilla eXchange, Inc.
By:
/s/
Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx, President
NVS
Entertainment, Inc.
By:
/s/
Xxxxx
Xxxx
Xxxxx
Xxxx, President
NVS
Acquisition Corp.
By:
/s/
Xxxxx
Xxxx
Xxxxx
Xxxx, President
For
purposes of agreeing to be bound
by
the
provisions of Section 6.3:
/s/
Xxxxx
Xxxx
Xxxxx
Xxxx
-93-
