EX-10.1
2
ex101.htm
EXHIBIT 10.1
Exhibit 10.1
AMENDED
AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED
AGREEMENT
AND PLAN OF MERGER, which amends and restates the
agreement and plan of
merger made as of the 14th day of
February, 2008, is made as of the 27th day of
February, 0000,
XXXXX:
MAILTEC, INC., a corporation
formed pursuant to the laws of the State of Nevada and having an office for
business at 0000 Xx. Xxxxxxxx Xxxx., Xxxxxxxx, Xxxx 00000
(“MailTec”)
AND:
PROVISION MERGER CORP., a body
corporate formed pursuant to the laws of the State of Nevada and a wholly owned
subsidiary of MailTec (the "Merger Sub")
AND:
PROVISION INTERACTIVE TECHNOLOGIES,
INC., a company formed pursuant to the laws of the State of California
and having an office for business located at 0000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx 00000 ("ProVision")
WHEREAS:
A. ProVision
is a California corporation engaged in the business of developing, producing,
marketing, distribution and selling 3-D holographic aerial imaging systems,
advertising and media;
B. MailTec
is a reporting company whose common stock is quoted on the NASD “Bulletin Board”
and which is not presently engaged in any business;
C. The
respective Boards of Directors of MailTec, ProVision and the Merger Sub deem it
advisable and in the best interests of MailTec, ProVision and the Merger Sub
that ProVision merge with and into the Merger Sub (the "Merger") pursuant to
this Agreement and the Certificate of Merger, and the applicable provisions of
the laws of the State of Nevada and the State of California; and
D. It
is intended that the Merger shall qualify for United States federal income tax
purposes as a reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended.
NOW THEREFORE THIS AGREEMENT
WITNESSETH THAT in consideration of the premises and the mutual
covenants, agreements, representations and warranties contained herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Definitions
1.1 In this
Agreement the following terms will have the following meanings:
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(a)
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“Acquisition Shares”
means the 20,879,350 MailTec Common Shares to be issued to the ProVision
Shareholders and the ProVision Debt Holders at Closing pursuant to the
terms of the Merger in accordance with Schedule A, annexed
hereto;
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(b)
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“Agreement” means this
amended and restated agreement and plan of merger among MailTec, the
Merger Sub and ProVision;
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(c)
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“Closing” means the
completion, on the Closing Date, of the transactions contemplated hereby
in accordance with Article 9
hereof;
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(d)
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“Closing Date” means the
day on which all conditions precedent to the completion of the transaction
as contemplated hereby have been satisfied or
waived;
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(e)
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“Effective Time” means
the date of the filing of this Agreement and officers’ certificates, as
applicable, in the form required by State Corporation
Law;
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(f)
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“MailTec Accounts
Receivable” means all accounts receivable and other debts owing to
MailTec, on a consolidated basis,;
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(g)
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“MailTec Assets” means
the undertaking and all the property and assets of the MailTec Business of
every kind and description wheresoever situated including, without
limitation, MailTec Equipment, MailTec Inventory, MailTec Material
Contracts, MailTec Accounts Receivable, MailTec Cash, MailTec Intangible
Assets and MailTec Goodwill, and all credit cards, charge cards and
banking cards issued to MailTec;
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(h)
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“MailTec Business” means
all aspects of any business conducted by MailTec and its
subsidiaries;
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(i)
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“MailTec Cash” means all
cash on hand or on deposit to the credit of MailTec and its subsidiaries
on the Closing Date;
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(j)
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“MailTec Common Shares”
means the shares of common stock in the capital of
MailTec;
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(k)
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“MailTec Equipment” means
all machinery, equipment, furniture, and furnishings used in the MailTec
Business;
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(l)
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“MailTec Financial
Statements” means, collectively, the audited consolidated financial
statements of MailTec, together with the unqualified auditors' report
thereon, and the unaudited consolidated financial statements of
MailTec;
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(m)
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“MailTec Goodwill” means
the goodwill of the MailTec Business including the right to all corporate,
operating and trade names associated with the MailTec Business, or any
variations of such names as part of or in connection with the MailTec
Business, all books and records and other information relating to the
MailTec Business, all necessary licenses and authorizations and any other
rights used in connection with the MailTec
Business;
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(n)
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“MailTec Intangible
Assets" means all of the intangible assets of MailTec and its
subsidiaries, including, without limitation, MailTec Goodwill, all
trademarks, logos, copyrights, designs, and other intellectual and
industrial property of MailTec and its
subsidiaries;
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(o)
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“MailTec Inventory” means
all inventory and supplies of the MailTec
Business;
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(p)
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“MailTec Material
Contracts” means the burden and benefit of and the right, title and
interest of MailTec and its subsidiaries in, to and under all trade and
non-trade contracts, engagements or commitments, whether written or oral,
to which MailTec or its subsidiaries are entitled whereunder MailTec or
its subsidiaries are obligated to pay or entitled to receive the sum of
$10,000 or more including, without limitation, any pension plans, profit
sharing plans, bonus plans, loan agreements, security agreements,
indemnities and guarantees, any agreements with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, directors, attorneys or others which cannot be terminated
without liability on not more than one month's
notice;
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(q)
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“Merger” means the
merger, at the Effective Time, of ProVision and the Merger Sub pursuant to
this Agreement;
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(r)
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“Place of Closing” means
the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, or such other place as
MailTec and ProVision may mutually agree
upon;
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(s)
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“ProVision Accounts
Receivable” means all accounts receivable and other debts owing to
ProVision;
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(t)
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“ProVision Assets“ means
the undertaking and all the property and assets of the ProVision Business
of every kind and description wheresoever situated including, without
limitation, ProVision Equipment, ProVision Inventory, ProVision Material
Contracts, ProVision Accounts Receivable, ProVision Cash, ProVision
Intangible Assets and ProVision Goodwill, and all credit cards, charge
cards and banking cards issued to
ProVision;
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(u)
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“ProVision Business”
means all aspects of the business conducted by
ProVision;
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(v)
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“ProVision Cash” means
all cash on hand or on deposit to the credit of ProVision on the Closing
Date;
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(w)
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“ProVision Debt” means
all of the issued and outstanding convertible promissory notes of
ProVision;
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(x)
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“ProVision Debt Holders”
means all of the holders of the issued and outstanding ProVision
Debt;
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(y)
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“ProVision Equipment”
means all machinery, equipment, furniture, and furnishings used in the
ProVision Business;
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(z)
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“ProVision Financial
Statements” means collectively, the audited consolidated financial
statements of ProVision, together with the unqualified auditors' report
thereon;
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3
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(aa)
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“ProVision Goodwill”
means the goodwill of the ProVision Business together with the exclusive
right of MailTec to represent itself as carrying on the ProVision Business
in succession of ProVision subject to the terms hereof, and the right to
use any words indicating that the ProVision Business is so carried on
including the right to use the name "ProVision” or any variation thereof
as part of the name of or in connection with the ProVision Business or any
part thereof carried on or to be carried on by ProVision, the right to all
corporate, operating and trade names associated with the ProVision
Business, or any variations of such names as part of or in connection with
the ProVision Business, all telephone listings and telephone advertising
contracts, all lists of customers, books and records and other information
relating to the ProVision Business, all necessary licenses and
authorizations and any other rights used in connection with the ProVision
Business;
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(bb)
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“ProVision Intangible
Assets” means all of the intangible assets of ProVision, including,
without limitation, ProVision Goodwill, all trademarks, logos, copyrights,
designs, and other intellectual and industrial property of ProVision and
its subsidiaries;
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(cc)
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“ProVision Inventory”
means all inventory and supplies of the ProVision
Business;
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(dd)
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“ProVision Material
Contracts” means the burden and benefit of and the right, title and
interest of ProVision in, to and under all trade and non-trade contracts,
engagements or commitments, whether written or oral, to which ProVision is
entitled in connection with the ProVision Business whereunder ProVision is
obligated to pay or entitled to receive the sum of $10,000 or more
including, without limitation, any pension plans, profit sharing plans,
bonus plans, loan agreements, security agreements, indemnities and
guarantees, any agreements with employees, lessees, licensees, managers,
accountants, suppliers, agents, distributors, officers, directors,
attorneys or others which cannot be terminated without liability on not
more than one month's notice;
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(ee)
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“ProVision Option” shall
mean any option to purchase or otherwise acquire ProVision Shares (whether
or not vested) outstanding under any ProVision Option
Plan;
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(ff)
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“ProVision Option Plan”
shall mean (i) ProVision’s 2002 Employee Stock Plan and (ii) any other
compensatory option plans or contracts of ProVision, including option
plans or contracts assumed by the ProVision pursuant to a merger or
acquisition;
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(gg)
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“ProVision Shares” means
all of the issued and outstanding shares of ProVision's equity
stock;
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(hh)
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“ProVision Shareholders”
means all of the holders of the issued and outstanding ProVision
Shares;
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(ii)
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“ProVision Warrants”
shall mean any warrant to purchase or otherwise acquire shares of capital
stock of ProVision;
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(jj)
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“State Corporation Law”
means either the California General Corporation Law or
the Nevada Revised Statutes, as
applicable;
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(kk)
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“Surviving Company” means
ProVision following the merger with the Merger
Sub;
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Any other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
4
Captions
and Section Numbers
1.2 The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this Agreement or any
provision thereof.
Section
References and Schedules
1.3 Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement and any reference to a Schedule by letter will mean the
appropriate Schedule attached to this Agreement and by such reference the
appropriate Schedule is incorporated into and made part of this
Agreement. The Schedules to this Agreement are as
follows:
Severability
of Clauses
1.4 If
any part of this Agreement is declared or held to be invalid for any reason,
such invalidity will not affect the validity of the remainder which will
continue in full force and effect and be construed as if this Agreement had been
executed without the invalid portion, and it is hereby declared the intention of
the parties that this Agreement would have been executed without reference to
any portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE
2
THE
MERGER
The
Merger
2.1 The
Merger Sub shall be merged with and into ProVision pursuant to this Agreement
and the separate corporate existence of the Merger Sub shall cease and
ProVision, as it exists from and after the Closing, shall be the Surviving
Company.
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Effect
of the Merger
2.2 The
Merger shall have the effect provided therefor by the State Corporation Law.
Without limiting the generality of the foregoing, and subject thereto, at
Closing (i) all the rights, privileges, immunities, powers and franchises, of a
public as well as of a private nature, and all property, real, personal and
mixed, and all debts due on whatever account, including without limitation
subscriptions to shares, and all other choses in action, and all and every other
interest of or belonging to or due to ProVision or the Merger Sub, as a group,
subject to the terms hereof, shall be taken and deemed to be transferred to, and
vested in, the Surviving Company without further act or deed; and all property,
rights and privileges, immunities, powers and franchises and all and every other
interest shall be thereafter as effectually the property of the Surviving
Company, as they were of ProVision and the Merger Sub, as a group, and (ii) all
debts, liabilities, duties and obligations of ProVision and the Merger Sub, as a
group, subject to the terms hereof, shall become the debts, liabilities and
duties of the Surviving Company and the Surviving Company shall thenceforth be
responsible and liable for all debts, liabilities, duties and obligations of
ProVision and the Merger Sub, as a group, and neither the rights of creditors
nor any liens upon the property of ProVision or the Merger Sub, as a group,
shall be impaired by the Merger, and may be enforced against the Surviving
Company.
Certificate
of Incorporation; Bylaws; Directors and Officers
2.3 The
Certificate of Incorporation of the Surviving Company from and after the Closing
shall be the Certificate of Incorporation of ProVision until thereafter amended
in accordance with the provisions therein and as provided by the applicable
provisions of the State Corporation Law. The Bylaws of the Surviving
Company from and after the Closing shall be the Bylaws of ProVision as in effect
immediately prior to the Closing, continuing until thereafter amended in
accordance with their terms, the Certificate of Incorporation of the Surviving
Company and as provided by the State Corporation Law. The Directors
of ProVision at the Effective Time shall continue to be the Directors of the
Merger Sub.
Conversion
of Securities
2.4 At
the Effective Time, by virtue of the Merger and without any action on the part
of the Merger Sub or ProVision, the shares of capital stock of each of ProVision
and the Merger Sub shall be converted as follows:
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(a)
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Capital Stock of the
Merger Sub. Each issued and outstanding share of the Merger Sub's
capital stock shall continue to be issued and outstanding and shall
represent one share of validly issued, fully paid, and non-assessable
common stock of the Surviving Company owned by MailTec. Each stock
certificate of the Merger Sub evidencing ownership of any such shares
shall continue to evidence ownership of such shares of capital stock of
the Surviving Company.
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(b)
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Conversion of
ProVision Shares. Each ProVision Share that is issued and
outstanding at the Effective Time, set forth on Schedule A, shall
automatically be cancelled and converted, without any action on the part
of the holder thereof, into the right to receive two (2) Acquisition
Shares for each ProVision Share. All such ProVision Shares, when so
converted, shall no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist, and each holder of a
certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the Acquisition Shares
paid in consideration therefor upon the surrender of such certificate in
accordance with this Agreement.
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(c)
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Conversion of Certain
ProVision Debt. At the Effective Time the outstanding ProVision
Debt, held by the ProVision Debt Holders set forth on Schedule A, shall
automatically be cancelled and extinguished and converted, without any
action on the part of the holder thereof, into the right to receive
ProVision Shares, which shall then automatically be cancelled and
extinguished and converted in accordance with Section
2.4(b).
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(d)
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Conversion of Certain
ProVision Warrants. At the Effective Time the outstanding ProVision
Warrants, held by ProVision Warrant Holders set forth on Schedule A, shall
automatically be cancelled and extinguished and converted, without any
action on the part of the holder thereof, into the right to receive
ProVision Shares, which shall then automatically be cancelled and
extinguished and converted in accordance with Section
2.4(b).
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Assumption
of Remaining Options, Warrants and Debt
2.5 At
the Effective Time, by virtue of the Merger and without any action on the part
of the Merger Sub, MailTec or ProVision, the Provision Options, ProVision
Warrants and ProVision Debt shall be assumed by MailTec as follows:
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(a)
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Assumption of
Outstanding ProVision Options. At the Effective Time by virtue of
the transactions contemplated hereunder and without any action on the part
of the holders of any ProVision Options, each ProVision Option that is
issued and outstanding immediately prior to the Closing Date, whether or
not then exercisable, will be assumed by MailTec and converted
automatically into an option to purchase two (2) MailTec Common Shares
(“Assumed
Options”). Each Assumed Option will continue to have,
and be subject to, the same terms and conditions set forth in the
ProVision Option Plan and the agreements evidencing the grant thereof
immediately prior to the Closing Date, including provisions with respect
to vesting, except that they shall be exercisable for two (2) of MailTec
Common Shares. It is the intention of the parties that each
Assumed Option that qualified as an incentive stock option (as defined in
Section 422 of the Code) shall continue to so qualify, to the maximum
extent permissible, following the Closing
Date.
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(b)
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Assumption of
ProVision Option Plan. At the Effective Time, MailTec will be able
to grant stock awards, to the extent permissible by applicable Law and
regulations, under the terms of the ProVision Option Plan or the terms of
another plan adopted by MailTec to issue the reserved but unissued
ProVision Shares under such ProVision Option Plan and the shares that
would otherwise return to the ProVision Option Plan pursuant to the terms
thereof, except that (i) ProVision Shares covered by such awards will be
shares of MailTec Common Shares and (ii) all references to a number of
ProVision Shares will be changed to reference MailTec Common
Shares. Notwithstanding the foregoing, neither ProVision, nor
any ProVision Stockholder, nor any holder of a ProVision Option, makes any
representation or warranty or shall have any obligation or any liability
whatsoever, including without limitation any indemnification obligation
under this Agreement.
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(c)
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Assumption of
Outstanding ProVision Warrants. At the Effective Time by virtue of
the transactions contemplated hereunder and without any action on the part
of the holders of any ProVision Warrants, except for the ProVision
Warrants converted in accordance with Section 2.4(d), each ProVision
Warrant that is issued and outstanding immediately prior to the Closing
Date will be assumed by MailTec and converted automatically into a warrant
to purchase twice the number of shares of MailTec Common Shares as set
forth in the instruments evidencing such ProVision Warrant at the exercise
price set forth in the instruments evidencing such ProVision
Warrant.
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(d)
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Assumption of
Outstanding ProVision Debt. At the Effective Time by virtue of the
transactions contemplated hereunder and without any action on the part of
the holders of any ProVision Debt, except for the ProVision Debt converted
in accordance with Section 2.4(c), all ProVision Debt that is issued and
outstanding immediately prior to the Closing Date will be assumed by
MailTec and converted automatically into a debt obligations convertible
into twice the number of shares of MailTec Common Shares as set forth in
the instruments evidencing such ProVision Debt at the conversion price set
forth in the instruments evidencing such ProVision
Debt.
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Adherence
with Applicable Securities Laws
2.6 The
ProVision Shareholder agrees that he is acquiring the Acquisition Shares for
investment purposes and will not offer, sell or otherwise transfer, pledge or
hypothecate any of the Acquisition Shares issued to them (other than pursuant to
an effective Registration Statement under the Securities Act of 1933, as
amended) directly or indirectly unless:
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(a)
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the
sale is to MailTec;
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(b)
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the
sale is made pursuant to the exemption from registration under the Securities Act of 1933,as
amended, provided by Rule 144 thereunder;
or
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(c)
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the
Acquisition Shares are sold in a transaction that does not require
registration under the Securities Act of 1933, as
amended, or any applicable United States state laws and regulations
governing the offer and sale of securities, and the vendor has furnished
to MailTec an opinion of counsel to that effect or such other written
opinion as may be reasonably required by
MailTec.
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The ProVision Shareholder acknowledges
that the certificates representing the Acquisition Shares shall bear the
following legend:
NO SALE,
OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL
BE MADE UNLESS A REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT IS THEN IN FACT APPLICABLE TO
SAID SHARES.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
MAILTEC
Representations
and Warranties
3.1 MailTec
represents and warrants in all material respects to ProVision, with the intent
that ProVision will rely thereon in entering into this Agreement and in
approving and completing the transactions contemplated hereby,
that:
MailTec
- Corporate Status and Capacity
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(a)
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Incorporation.
MailTec is a corporation duly incorporated and validly subsisting under
the laws of the State of Nevada, and is in good standing with the office
of the Secretary of State for the State of
Nevada;
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(b)
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Carrying on
Business. MailTec conducts the business described in its filings
with the Securities and Exchange Commission and does not conduct any other
business. The nature of the MailTec Business does not require MailTec to
register or otherwise be qualified to carry on business in any other
jurisdictions;
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(c)
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Corporate
Capacity. MailTec has the corporate power, capacity and authority
to own the MailTec Assets and to enter into and complete this
Agreement;
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(d)
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Reporting Status;
Listing. MailTec is required to file current reports with the
Securities and Exchange Commission pursuant to section 15(d) of the
Securities Exchange Act of 1934, the MailTec Common Shares are quoted on
the NASD "Bulletin Board”, and all reports required to be filed by MailTec
with the Securities and Exchange Commission or NASD have been timely
filed;
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Merger
Sub - Corporate Status and Capacity
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(e)
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Incorporation.
The Merger Sub is a corporation duly incorporated and validly subsisting
under the laws of the State of Nevada, and is in good standing with the
office of the Secretary of State for the State of
Nevada;
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(f)
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Carrying on
Business. Other than corporate formation and organization, the
Merger Sub has not carried on business activities to
date.
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(g)
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Corporate
Capacity. The Merger Sub has the corporate power, capacity and
authority to enter into and complete this
Agreement;
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MailTec
- Capitalization
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(h)
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Authorized
Capital. The authorized capital of MailTec consists of 100,000,000
MailTec Common Shares, $0.001 par value and 4,000,000 shares of preferred
stock, $0.001 par value, of which 425,516 MailTec Common Shares, and no
shares of preferred stock are presently issued and
outstanding;
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(i)
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No Option, Warrant or
Other Right. No person, firm or corporation has any agreement,
option, warrant, preemptive right or any other right capable of becoming
an agreement, option, warrant or right for the acquisition of MailTec
Common Shares or for the purchase, subscription or issuance of any of the
unissued shares in the capital of
MailTec;
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(j)
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Capacity.
MailTec has the full right, power and authority to enter into this
Agreement on the terms and conditions contained
herein;
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Merger
Sub Capitalization
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(k)
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Authorized
Capital. The authorized capital of the Merger Sub consists of
25,000,000 shares of common stock, $0.001 par value, of which one share of
common stock is presently issued and
outstanding;
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(l)
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No Option. No
person, firm or corporation has any agreement or option or any right
capable of becoming an agreement or option for the acquisition of any
common or preferred shares in Merger Sub or for the purchase, subscription
or issuance of any of the unissued shares in the capital of Merger
Sub;
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(m)
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Capacity. The
Merger Sub has the full right, power and authority to enter into this
Agreement on the terms and conditions contained
herein;
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MailTec
- Records and Financial Statements
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(n)
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Charter
Documents. The charter documents of MailTec and the Merger Sub have
not been altered since the incorporation of each, respectively, except as
filed in the record books of MailTec or the Merger Sub, as the case may
be;
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(o)
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Corporate Minute
Books. The corporate minute books of MailTec and its subsidiaries
are complete and each of the minutes contained therein accurately reflect
the actions that were taken at a duly called and held meeting or by
consent without a meeting. All actions by MailTec and its subsidiaries
which required director or shareholder approval are reflected on the
corporate minute books of MailTec and its subsidiaries. MailTec and its
subsidiaries are not in violation or breach of, or in default with respect
to, any term of their respective Certificates of Incorporation (or other
charter documents) or by-laws.
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(p)
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MailTec Financial
Statements. The MailTec Financial Statements present fairly, in all
material respects, the assets and liabilities (whether accrued, absolute,
contingent or otherwise) of MailTec, on a consolidated basis, as of the
respective dates thereof, and the sales and earnings of the MailTec
Business during the periods covered thereby, in all material respects and
have been prepared in substantial accordance with generally accepted
accounting principles consistently
applied;
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(q)
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MailTec Accounts
Payable and Liabilities. There are no material liabilities,
contingent or otherwise, of MailTec or its subsidiaries which are not
disclosed in its filings with the Securities and Exchange Commission or
reflected in the MailTec Financial Statements except those incurred in the
ordinary course of business since the date of the said filings and the
MailTec Financial Statements, and neither MailTec nor its subsidiaries
have guaranteed or agreed to guarantee any debt, liability or other
obligation of any person, firm or
corporation;
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(r)
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MailTec Accounts
Receivable. All the MailTec Accounts Receivable result from bona
fide business transactions and services actually rendered without, to the
knowledge and belief of MailTec, any claim by the obligor for set-off or
counterclaim;
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(s)
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No Debt to Related
Parties. Neither MailTec nor its subsidiaries are, and on Closing
will not be, materially indebted to any affiliate, director or officer of
MailTec except accounts payable on account of bona fide business
transactions of MailTec incurred in normal course of the MailTec Business,
including employment agreements, none of which are more than 30 days in
arrears;
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(t)
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No Related Party Debt
to MailTec. No director or officer or affiliate of MailTec is now
indebted to or under any financial obligation to MailTec or its
subsidiaries on any account whatsoever, except for advances on account of
travel and other expenses not exceeding $5,000 in
total;
|
|
(u)
|
No Dividends.
No dividends or other distributions on any shares in the capital of
MailTec have been made, declared or authorized since the date of MailTec
Financial Statements;
|
|
(v)
|
No Payments. No
payments of any kind have been made or authorized since the date of the
MailTec Financial Statements to or on behalf of officers, directors,
shareholders or employees of MailTec or its subsidiaries or under any
management agreements with MailTec or its subsidiaries, except payments
made in the ordinary course of business and at the regular rates of salary
or other remuneration payable to
them;
|
|
(w)
|
No Pension
Plans. There are no pension, profit sharing, group insurance or
similar plans or other deferred compensation plans affecting MailTec or
its subsidiaries;
|
|
(x)
|
No Adverse
Events. Since the date of the MailTec Financial
Statements
|
|
(i)
|
there
has not been any material adverse change in the financial position or
condition of MailTec, its subsidiaries, its liabilities or the MailTec
Assets or any damage, loss or other change in circumstances materially
affecting MailTec, the MailTec Business or the MailTec Assets or MailTec’
right to carry on the MailTec Business, other than changes in the ordinary
course of business,
|
10
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether or not
covered by insurance) materially and adversely affecting MailTec, its
subsidiaries, the MailTec Business or the MailTec
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or to
become payable by MailTec to any of MailTec’ officers, employees or agents
or any bonus, payment or arrangement made to or with any of
them,
|
|
(iv)
|
the
MailTec Business has been and continues to be carried on in the ordinary
course,
|
|
(v)
|
MailTec
has not waived or surrendered any right of material
value,
|
|
(vi)
|
Neither
MailTec nor its subsidiaries have discharged or satisfied or paid any lien
or encumbrance or obligation or liability other than current liabilities
in the ordinary course of business,
and
|
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000 in total
have been authorized or made.
|
MailTec
- Income Tax Matters
|
(y)
|
Tax Returns.
All tax returns and reports of MailTec and its subsidiaries required by
law to be filed have been filed and are true, complete and correct, and
any taxes payable in accordance with any return filed by MailTec and its
subsidiaries or in accordance with any notice of assessment or
reassessment issued by any taxing authority have been so
paid;
|
|
(z)
|
Current Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by, or
payment of, any tax, governmental charge or deficiency by MailTec or its
subsidiaries. MailTec is not aware of any contingent tax
liabilities or any grounds which would prompt a reassessment including
aggressive treatment of income and expenses in filing earlier tax
returns;
|
MailTec
- Applicable Laws and Legal Matters
|
(aa)
|
Licenses.
MailTec and its subsidiaries hold all licenses and permits as may be
requisite for carrying on the MailTec Business in the manner in which it
has heretofore been carried on, which licenses and permits have been
maintained and continue to be in good standing except where the failure to
obtain or maintain such licenses or permits would not have a material
adverse effect on the MailTec
Business;
|
|
(bb)
|
Applicable
Laws. Neither MailTec nor its subsidiaries have been charged with
or received notice of breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which they are subject or which
apply to them the violation of which would have a material adverse effect
on the MailTec Business, and to MailTec’ knowledge, neither MailTec nor
its subsidiaries are in breach of any laws, ordinances, statutes,
regulations, bylaws, orders or decrees the contravention of which would
result in a material adverse impact on the MailTec
Business;
|
11
|
(cc)
|
Pending or Threatened
Litigation. There is no material litigation or administrative or
governmental proceeding pending or threatened against or relating to
MailTec, its subsidiaries, the MailTec Business, or any of the MailTec
Assets nor does MailTec have any knowledge of any deliberate act or
omission of MailTec or its subsidiaries that would form any material basis
for any such action or proceeding;
|
|
(dd)
|
No Bankruptcy.
Neither MailTec nor its subsidiaries have made any voluntary assignment or
proposal under applicable laws relating to insolvency and bankruptcy and
no bankruptcy petition has been filed or presented against MailTec or its
subsidiaries and no order has been made or a resolution passed for the
winding-up, dissolution or liquidation of MailTec or its
subsidiaries;
|
|
(ee)
|
Labor Matters.
Neither MailTec nor its subsidiaries are party to any collective agreement
relating to the MailTec Business with any labor union or other association
of employees and no part of the MailTec Business has been certified as a
unit appropriate for collective bargaining or, to the knowledge of
MailTec, has made any attempt in that
regard;
|
|
(ff)
|
Finder's Fees.
Neither MailTec nor its subsidiaries are party to any agreement which
provides for the payment of finder's fees, brokerage fees, commissions or
other fees or amounts which are or may become payable to any third party
in connection with the execution and delivery of this Agreement and the
transactions contemplated herein;
|
Execution
and Performance of Agreement
|
(gg)
|
Authorization and
Enforceability. The execution and delivery of this Agreement, and
the completion of the transactions contemplated hereby, have been duly and
validly authorized by all necessary corporate action on the part of
MailTec and the Merger Sub;
|
|
(hh)
|
No Violation or
Breach. The execution and performance of this Agreement will
not:
|
|
(i)
|
violate
the charter documents of MailTec or the Merger Sub or result in any breach
of, or default under, any loan agreement, mortgage, deed of trust, or any
other agreement to which MailTec or its subsidiaries are
party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, the MailTec Material Contracts, or any right or rights
enjoyed by MailTec or its
subsidiaries,
|
|
(iii)
|
result
in any alteration of MailTec’ or its subsidiaries’ obligations under any
agreement to which MailTec or its subsidiaries are party including,
without limitation, the MailTec Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction of
any nature whatsoever in favor of a third party upon or against the
MailTec Assets,
|
|
(v)
|
result
in the imposition of any tax liability to MailTec or its subsidiaries
relating to the MailTec Assets, or
|
|
(vi)
|
violate
any court order or decree to which either MailTec or its subsidiaries are
subject;
|
12
The
MailTec Business
|
(ii)
|
Maintenance of
Business. Since the date of the MailTec Financial Statements,
MailTec and its subsidiaries have not entered into any material agreement
or commitment except in the ordinary course and except as disclosed
herein;
|
|
(jj)
|
Subsidiaries.
Except for the Merger Sub, MailTec does not own any subsidiaries and does
not otherwise own, directly or indirectly, any shares or interest in any
other corporation, partnership, joint venture or firm;
and
|
MailTec
- Acquisition Shares
|
(kk)
|
Acquisition
Shares. The Acquisition Shares when delivered to the holders of
ProVision Shares pursuant to the Merger shall be validly issued and
outstanding as fully paid and non-assessable shares and the Acquisition
Shares shall be transferable upon the books of MailTec, in all cases
subject to the provisions and restrictions of all applicable securities
laws.
|
Non-Merger
and Survival
3.2 The
representations and warranties of MailTec contained herein will be true at and
as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion
of the transactions contemplated hereby, the waiver of any condition contained
herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by ProVision or the
ProVision Shareholder, the representations and warranties of MailTec shall
survive the Closing.
Indemnity
3.3 MailTec
agrees to indemnify and save harmless ProVision and the ProVision Shareholder
from and against any and all claims, demands, actions, suits, proceedings,
assessments, judgments, damages, costs, losses and expenses, including any
payment made in good faith in settlement of any claim (subject to the right of
MailTec to defend any such claim), resulting from the breach by it of any
representation or warranty made under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by MailTec to ProVision or the ProVision
Shareholder hereunder.
ARTICLE
4
COVENANTS
OF MAILTEC
Covenants
4.1 MailTec
covenants and agrees with ProVision that it will:
|
(a)
|
Conduct of
Business. Until the Closing, conduct its business diligently and in
the ordinary course consistent with the manner in which it generally has
been operated up to the date of execution of this
Agreement;
|
|
(b)
|
Preservation of
Business. Until the Closing, use its best efforts to
preserve the MailTec Business and the MailTec Assets and, without
limitation, preserve for ProVision MailTec’ and its subsidiaries’
relationships with any third party having business relations with
them;
|
13
|
(c)
|
Access. Until
the Closing, give ProVision, the ProVision Shareholder, and their
representatives full access to all of the properties, books, contracts,
commitments and records of MailTec, and furnish to ProVision, the
ProVision Shareholder and their representatives all such information as
they may reasonably request;
|
|
(d)
|
Procure
Consents. Until the Closing, take all reasonable steps required to
obtain, prior to Closing, any and all third party consents required to
permit the Merger and to preserve and maintain the MailTec Assets
notwithstanding the change in control of ProVision arising from the
Merger; and
|
|
(e)
|
Name Change.
Forthwith after the Closing, take such steps are required to change the
name of MailTec as may be acceptable to the board of directors of
ProVision.
|
Authorization
4.2 MailTec
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting MailTec and its subsidiaries to release any and all
information in their possession respecting MailTec and its subsidiaries to
ProVision. MailTec shall promptly execute and deliver to ProVision any and all
consents to the release of information and specific authorizations which
ProVision reasonably requires to gain access to any and all such
information.
Survival
4.3 The
covenants set forth in this Article shall survive the Closing for the benefit of
ProVision and the ProVision Shareholder.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
PROVISION
Representations
and Warranties
5.1 ProVision
represents and warrants in all material respects to MailTec, with the intent
that it will rely thereon in entering into this Agreement and in approving and
completing the transactions contemplated hereby, that:
ProVision
- Corporate Status and Capacity
|
(a)
|
Incorporation.
ProVision is a corporation duly incorporated and validly subsisting under
the laws of the State of California, and is in good standing with the
office of the Secretary of State for the State of
California;
|
|
(b)
|
Corporate
Capacity. ProVision has the corporate power, capacity and authority
to own ProVision Assets, to carry on the Business of ProVision and to
enter into and complete this
Agreement;
|
ProVision
- Capitalization
|
(c)
|
Authorized
Capital. The authorized capital of ProVision consists of 25,000,000
shares of common stock, no par
value;
|
|
(d)
|
Ownership of ProVision
Shares. The issued and outstanding shares of ProVision common stock
will on Closing consist of 7,677,500 shares of common stock, no
par value, (being the ProVision Shares), which shares on Closing shall be
validly issued and outstanding as fully paid and non-assessable shares.
The ProVision Shareholders at Closing will be the registered and
beneficial owners of the ProVision Shares. The ProVision Shares owned by
the ProVision Shareholders will on Closing be free and clear of any and
all liens, charges, pledges, encumbrances, restrictions on transfer and
adverse claims whatsoever;
|
14
|
(e)
|
Options, Warrants or
Other Rights. Except as set forth on Schedule 5.1, annexed hereto,
no person, firm or corporation has any agreement, option, warrant,
preemptive right or any other right capable of becoming an agreement,
option, warrant or right for the acquisition of ProVision Shares held by
the ProVision Shareholders or for the purchase, subscription or issuance
of any of the unissued shares in the capital of
ProVision;
|
ProVision
- Records and Financial Statements
|
(f)
|
Charter
Documents. The charter documents of ProVision have not been altered
since its incorporation date, except as filed in the record books of
ProVision;
|
|
(g)
|
Corporate Minute
Books. The corporate minute books of ProVision are complete and
each of the minutes contained therein accurately reflect the actions that
were taken at a duly called and held meeting or by consent without a
meeting. All actions by ProVision which required director or shareholder
approval are reflected on the corporate minute books of ProVision.
ProVision is not in violation or breach of, or in default with respect to,
any term of its Certificates of Incorporation (or other charter documents)
or by-laws.
|
|
(h)
|
ProVision Financial
Statements. The ProVision Financial Statements present fairly, in
all material respects, the assets and liabilities (whether accrued,
absolute, contingent or otherwise) of ProVision, on consolidated basis, as
of the respective dates thereof, and the sales and earnings of the
ProVision Business during the periods covered thereby, in all material
respects, and have been prepared in substantial accordance with generally
accepted accounting principles consistently
applied;
|
15
|
(i)
|
ProVision Accounts
Payable and Liabilities. There are no material liabilities,
contingent or otherwise, of ProVision which are not disclosed in the
ProVision Financial Statements except those incurred in the ordinary
course of business since the date of the said schedule and the ProVision
Financial Statements, and ProVision has not guaranteed or agreed to
guarantee any debt, liability or other obligation of any person, firm or
corporation;
|
|
(j)
|
ProVision Accounts
Receivable. All ProVision Accounts Receivable result from bona fide
business transactions and services actually rendered without, to the
knowledge and belief of ProVision, any claim by the obligor for set-off or
counterclaim;
|
|
(k)
|
No Debt to Related
Parties. ProVision is not, and on Closing will not be, materially
indebted to the ProVision Shareholder nor to any family member thereof,
nor to any affiliate, director or officer of ProVision or the ProVision
Shareholder except accounts payable on account of bona fide business
transactions of ProVision incurred in normal course of ProVision Business,
including employment agreements with the ProVision Shareholder, none of
which are more than 30 days in
arrears;
|
|
(l)
|
No Related Party Debt
to ProVision. Neither the ProVision Shareholder nor any director,
officer or affiliate of ProVision are now indebted to or under any
financial obligation to ProVision on any account whatsoever, except for
advances on account of travel and other expenses not exceeding $5,000 in
total;
|
|
(m)
|
No Dividends.
No dividends or other distributions on any shares in the capital of
ProVision have been made, declared or authorized since the date of the
ProVision Financial Statements;
|
|
(n)
|
No Payments. No
payments of any kind have been made or authorized since the date of the
ProVision Financial Statements to or on behalf of the ProVision
Shareholder or to or on behalf of officers, directors, shareholders or
employees of ProVision or under any management agreements with ProVision,
except payments made in the ordinary course of business and at the regular
rates of salary or other remuneration payable to
them;
|
|
(o)
|
No Pension
Plans. There are no pension, profit sharing, group insurance or
similar plans or other deferred compensation plans affecting
ProVision;
|
|
(p)
|
No Adverse
Events. Since the date of the ProVision Financial
Statements:
|
|
(i)
|
there
has not been any material adverse change in the consolidated financial
position or condition of ProVision, its liabilities or the ProVision
Assets or any damage, loss or other change in circumstances materially
affecting ProVision, the ProVision Business or the ProVision Assets or
ProVision’s right to carry on the ProVision Business, other than changes
in the ordinary course of business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether or not
covered by insurance) materially and adversely affecting ProVision, the
ProVision Business or the ProVision
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or to
become payable by ProVision to the ProVision Shareholder or to any of
ProVision's officers, employees or agents or any bonus, payment or
arrangement made to or with any of
them,
|
|
(iv)
|
the
ProVision Business has been and continues to be carried on in the ordinary
course,
|
|
(v)
|
ProVision
has not waived or surrendered any right of material
value,
|
|
(vi)
|
ProVision
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business, and
|
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000 in total
have been authorized or made, except with respect to the procurement of
raw materials, tooling, prototypes, and operating expenditures and
purchases for the purpose of building kiosks to support Provision’s
business plans as a media based company in the grocery industry, which
purchases later may be capitalized;
|
16
ProVision
- Income Tax Matters
|
(q)
|
Tax Returns.
All tax returns and reports of ProVision required by law to be filed have
been filed and are true, complete and correct, and any taxes payable in
accordance with any return filed by ProVision or in accordance with any
notice of assessment or reassessment issued by any taxing authority have
been so paid;
|
|
(r)
|
Current Taxes.
Adequate provisions have been made for taxes payable for the current
period for which tax returns are not yet required to be filed and there
are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the filing of any tax return by, or
payment of, any tax, governmental charge or deficiency by ProVision.
ProVision is not aware of any contingent tax liabilities or any grounds
which would prompt a reassessment including aggressive treatment of income
and expenses in filing earlier tax
returns;
|
ProVision
- Applicable Laws and Legal Matters
|
(s)
|
Licenses.
ProVision holds all licenses and permits as may be requisite for carrying
on the ProVision Business in the manner in which it has heretofore been
carried on, which licenses and permits have been maintained and continue
to be in good standing except where the failure to obtain or maintain such
licenses or permits would not have a material adverse effect on the
ProVision Business;
|
|
(t)
|
Applicable
Laws. ProVision has not been charged with or received notice of
breach of any laws, ordinances, statutes, regulations, by-laws, orders or
decrees to which it is subject or which applies to it the violation of
which would have a material adverse effect on the ProVision Business, and,
to ProVision’s knowledge, ProVision is not in breach of any laws,
ordinances, statutes, regulations, by-laws, orders or decrees the
contravention of which would result in a material adverse impact on the
ProVision Business;
|
|
(u)
|
Pending or Threatened
Litigation. There is no material litigation or administrative or
governmental proceeding pending or threatened against or relating to
ProVision, the ProVision Business, or any of the ProVision Assets, nor
does ProVision have any knowledge of any deliberate act or omission of
ProVision that would form any material basis for any such action or
proceeding;
|
|
(v)
|
No Bankruptcy.
ProVision has not made any voluntary assignment or proposal under
applicable laws relating to insolvency and bankruptcy and no bankruptcy
petition has been filed or presented against ProVision and no order has
been made or a resolution passed for the winding-up, dissolution or
liquidation of ProVision;
|
|
(w)
|
Labor Matters.
ProVision is not a party to any collective agreement relating to the
ProVision Business with any labor union or other association of employees
and no part of the ProVision Business has been certified as a unit
appropriate for collective bargaining or, to the knowledge of ProVision,
has made any attempt in that regard and ProVision has no reason to believe
that any current employees will leave ProVision's employ as a result of
this Merger.
|
|
(x)
|
Finder's Fees.
ProVision is not a party to any agreement which provides for the payment
of finder's fees, brokerage fees, commissions or other fees or amounts
which are or may become payable to any third party in connection with the
execution and delivery of this Agreement and the transactions contemplated
herein;
|
17
Execution
and Performance of Agreement
|
(y)
|
Authorization and
Enforceability. The execution and delivery of this Agreement, and
the completion of the transactions contemplated hereby, have been duly and
validly authorized by all necessary corporate action on the part of
ProVision;
|
|
(z)
|
No Violation or
Breach. The execution and performance of this Agreement will
not
|
|
(i)
|
violate
the charter documents of ProVision or result in any breach of, or default
under, any loan agreement, mortgage, deed of trust, or any other agreement
to which ProVision is a party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, ProVision Material Contracts, or any right or rights
enjoyed by ProVision,
|
|
(iii)
|
result
in any alteration of ProVision's obligations under any agreement to which
ProVision is a party including, without limitation, the ProVision Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction of
any nature whatsoever in favor of a third party upon or against the
ProVision Assets,
|
|
(v)
|
result
in the imposition of any tax liability to ProVision relating to ProVision
Assets or the ProVision Shares, or
|
|
(vi)
|
violate
any court order or decree to which either ProVision is
subject;
|
|
|
The
Business of ProVision
|
|
(aa)
|
Maintenance of
Business. Since the date of the ProVision Financial Statements, the
ProVision Business has been carried on in the ordinary course and
ProVision has not entered into any material agreement or commitment except
in the ordinary course; and
|
|
(bb)
|
Subsidiaries.
Except as disclosed in its Private Offering Memorandum, dated as of April
20, 2007, or financial statements, ProVision does not own any subsidiaries
and does not otherwise own, directly or indirectly, any shares or interest
in any other corporation, partnership, joint venture or firm and ProVision
does not own any subsidiary and does not otherwise own, directly or
indirectly, any shares or interest in any other corporation, partnership,
joint venture or firm.
|
Non-Merger
and Survival
5.2 The
representations and warranties of ProVision and the ProVision Shareholder
contained herein will be true at and as of Closing in all material respects as
though such representations and warranties were made as of such
time. Notwithstanding the completion of the transactions contemplated
hereby, the waiver of any condition contained herein (unless such waiver
expressly releases a party from any such representation or warranty) or any
investigation made by MailTec, the representations and warranties of ProVision
and the ProVision Shareholder shall survive the Closing.
18
Indemnity
5.3 ProVision
and the ProVision Shareholder jointly and severally agree to indemnify and save
harmless MailTec from and against any and all claims, demands, actions, suits,
proceedings, assessments, judgments, damages, costs, losses and expenses,
including any payment made in good faith in settlement of any claim (subject to
the right of ProVision and the ProVision Shareholder to defend any such claim),
resulting from the breach by any of them of any representation or warranty of
such party made under this Agreement or from any misrepresentation in or
omission from any certificate or other instrument furnished or to be furnished
by ProVision or the ProVision Shareholder to MailTec hereunder.
ARTICLE
6
COVENANTS
OF PROVISION AND
THE
PROVISION SHAREHOLDER
Covenants
6.1 ProVision
covenants and agrees with MailTec that they will:
|
(a)
|
Conduct of
Business. Until the Closing, conduct the ProVision Business
diligently and in the ordinary course consistent with the manner in which
the ProVision Business generally has been operated up to the date of
execution of this Agreement;
|
|
(b)
|
Preservation of
Business. Until the Closing, use their best efforts to
preserve the ProVision Business and the ProVision Assets and, without
limitation, preserve for MailTec ProVision’s relationships with their
suppliers, customers and others having business relations with
them;
|
|
(c)
|
Access. Until
the Closing, give MailTec and its representatives full access to all of
the properties, books, contracts, commitments and records of ProVision
relating to ProVision, the ProVision Business and the ProVision Assets,
and furnish to MailTec and its representatives all such information as
they may reasonably request;
|
|
(d)
|
Procure
Consents. Until the Closing, take all reasonable steps required to
obtain, prior to Closing, any and all third party consents required to
permit the Merger and to preserve and maintain the ProVision Assets,
including the ProVision Material Contracts, notwithstanding the change in
control of ProVision arising from the
Merger;
|
|
(e)
|
Reporting and Internal
Controls. From and after the Effective Time, the ProVision
Shareholder shall forthwith take all required actions to implement
internal controls on the business of the Surviving Company to ensure that
the Surviving Company and MailTec comply with Section 13(b)(2) of the
Securities and Exchange Act of
1934;
|
|
(f)
|
Audited Financial
Statements. Immediately upon execution of this
Agreement, cause to be prepared audited financial statements of ProVision
in compliance with the requirements of Regulation SB as promulgated by the
Securities and Exchange Commission, such audited financial statements to
be provided no later than 74 days after the Closing Date;
and
|
|
(g)
|
Name Change.
Forthwith after the Closing, take such steps are required to change the
name of MailTec as may be acceptable to the board of directors of
MailTec.
|
19
Authorization
6.2 ProVision
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting ProVision to release any and all information in their
possession respecting ProVision to MailTec. ProVision shall promptly
execute and deliver to MailTec any and all consents to the release of
information and specific authorizations which MailTec reasonably require to gain
access to any and all such information.
Survival
6.3 The
covenants set forth in this Article shall survive the Closing for the benefit of
MailTec.
ARTICLE
7
CONDITIONS
PRECEDENT
Conditions
Precedent in favor of MailTec
7.1 MailTec’
obligations to carry out the transactions contemplated hereby are subject to the
fulfillment of each of the following conditions precedent on or before the
Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered to
MailTec hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by ProVision or the ProVision Shareholder at or prior to
the Closing will have been complied with or
performed;
|
|
(c)
|
MailTec
shall have completed its review and inspection of the books and records of
ProVision and shall be satisfied with same in all material
respects;
|
|
(d)
|
title
to the ProVision Shares held by the ProVision Shareholder and to the
ProVision Assets will be free and clear of all mortgages, liens, charges,
pledges, security interests, encumbrances or other claims whatsoever, save
and except as disclosed herein;
|
|
(e)
|
the
Certificate of Merger shall be executed by ProVision in form acceptable
for filing with State Corporation Law, as
appliacable;
|
|
(f)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
ProVision, its liabilities or the ProVision Assets or any damage, loss or
other change in circumstances materially and adversely affecting the
ProVision Business or the ProVision Assets or ProVision's right to carry
on the ProVision Business, other than changes in the ordinary course of
business, none of which has been materially adverse,
or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any laws or
statutes applicable to ProVision or the ProVision Business (whether or not
covered by insurance) materially and adversely affecting ProVision, the
ProVision Business or the ProVision Assets;
and
|
|
(g)
|
the
transactions contemplated hereby shall have been approved by all other
regulatory authorities having jurisdiction over the subject matter hereof,
if any;
|
20
Waiver
by MailTec
7.2 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of MailTec and any such condition may be waived in whole or in
part by MailTec at or prior to Closing by delivering to ProVision a written
waiver to that effect signed by MailTec. In the event that the conditions
precedent set out in the preceding section are not satisfied on or before the
Closing, MailTec shall be released from all obligations under this
Agreement.
Conditions
Precedent in Favor of ProVision and the ProVision Shareholder
7.3 The
obligation of ProVision and the ProVision Shareholder to carry out the
transactions contemplated hereby is subject to the fulfillment of each of the
following conditions precedent on or before the Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered to
ProVision hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by MailTec at or prior to the Closing will have been
complied with or performed;
|
|
(c)
|
ProVision
shall have completed its review and inspection of the books and records of
MailTec and its subsidiaries and shall be satisfied with same in all
material respects;
|
|
(d)
|
MailTec
will have delivered the Acquisition Shares to be issued pursuant to the
terms of the Merger to ProVision at the Closing and the Acquisition Shares
will be registered on the books of MailTec in the name of the holder of
ProVision Shares at the Effective
Time;
|
|
(e)
|
title
to the Acquisition Shares will be free and clear of all mortgages, liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
|
(f)
|
the
Certificate of Merger shall be executed by the Merger Sub in form
acceptable for filing with State Corporation Law, as
applicable;
|
|
(g)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of MailTec,
its subsidiaries, their liabilities or the MailTec Assets or any damage,
loss or other change in circumstances materially and adversely affecting
MailTec, the MailTec Business or the MailTec Assets or MailTec’ right to
carry on the MailTec Business, other than changes in the ordinary course
of business, none of which has been materially adverse,
or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any laws or
statutes applicable to MailTec or the MailTec Business (whether or not
covered by insurance) materially and adversely affecting MailTec, its
subsidiaries, the MailTec Business or the MailTec Assets;
and
|
|
(h)
|
the
transactions contemplated hereby shall have been approved by all other
regulatory authorities having jurisdiction over the subject matter hereof,
if any;
|
21
Waiver
by ProVision and the ProVision Shareholder
7.4 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of ProVision and the ProVision Shareholder and any such
condition may be waived in whole or in part by ProVision or the ProVision
Shareholder at or prior to the Closing by delivering to MailTec a written waiver
to that effect signed by ProVision and the ProVision Shareholder. In the event
that the conditions precedent set out in the preceding section are not satisfied
on or before the Closing ProVision and the ProVision Shareholder shall be
released from all obligations under this Agreement.
Nature
of Conditions Precedent
7.5 The
conditions precedent set forth in this Article are conditions of completion of
the transactions contemplated by this Agreement and are not conditions precedent
to the existence of a binding agreement. Each party acknowledges receipt of the
sum of $1.00 and other good and valuable consideration as separate and distinct
consideration for agreeing to the conditions of precedent in favor of the other
party or parties set forth in this Article.
Confidentiality
7.6 Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
existence and terms of this Agreement are confidential and that if this
Agreement is terminated pursuant to the preceding section the parties agree to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation and
execution of this Agreement and shall keep the terms of this Agreement and all
information and documents received from ProVision and MailTec and the contents
thereof confidential and not utilize nor reveal or release same, provided,
however, that MailTec will be required to issue news releases regarding the
execution and consummation of this Agreement and file a Current Report on Form
8-K with the Securities and Exchange Commission respecting the proposed Merger
contemplated hereby together with such other documents as are required to
maintain the currency of MailTec’ filings with the Securities and Exchange
Commission.
ARTICLE
8
RISK
Material
Change in the Business of ProVision
8.1 If
any material loss or damage to the ProVision Business occurs prior to Closing
and such loss or damage, in MailTec' reasonable opinion, cannot be substantially
repaired or replaced within sixty (60) days, MailTec shall, within two (2) days
following any such loss or damage, by notice in writing to ProVision, at its
option, either:
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Merger and the other transactions contemplated hereby, in
which case the proceeds and the rights to receive the proceeds of all
insurance covering such loss or damage will, as a condition precedent to
MailTec' obligations to carry out the transactions contemplated hereby, be
vested in ProVision or otherwise adequately secured to the satisfaction of
MailTec on or before the Closing
Date.
|
22
Material
Change in the MailTec Business
8.2 If
any material loss or damage to the MailTec Business occurs prior to Closing and
such loss or damage, in ProVision's reasonable opinion, cannot be substantially
repaired or replaced within sixty (60) days, ProVision shall, within two (2)
days following any such loss or damage, by notice in writing to MailTec, at its
option, either:
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Merger and the other transactions contemplated hereby, in
which case the proceeds and the rights to receive the proceeds of all
insurance covering such loss or damage will, as a condition precedent to
ProVision's obligations to carry out the transactions contemplated hereby,
be vested in MailTec or otherwise adequately secured to the satisfaction
of ProVision on or before the Closing
Date.
|
ARTICLE
9
CLOSING
Closing
9.1 The
Merger and the other transactions contemplated by this Agreement will be closed
at the Place of Closing in accordance with the closing procedure set out in this
Article.
Documents
to be Delivered by ProVision
9.2 On
or before the Closing, ProVision and the ProVision Shareholder will deliver or
cause to be delivered to MailTec:
|
(a)
|
the
original or certified copies of the charter documents of ProVision and all
corporate records documents and instruments of ProVision, the corporate
seal of ProVision and all books and accounts of
ProVision;
|
|
(b)
|
all
reasonable consents or approvals required to be obtained by ProVision for
the purposes of completing the Merger and preserving and maintaining the
interests of ProVision under any and all ProVision Material Contracts and
in relation to ProVision Assets;
|
|
(c)
|
certified
copies of such resolutions of the directors of ProVision as are required
to be passed to authorize the execution, delivery and implementation of
this Agreement;
|
|
(d)
|
an
acknowledgement from ProVision of the satisfaction of the conditions
precedent set forth in section 7.3
hereof;
|
|
(e)
|
the
Certificate of Merger, duly executed by ProVision;
and
|
|
(f)
|
such
other documents as MailTec may reasonably require to give effect to the
terms and intention of this
Agreement.
|
Documents
to be Delivered by MailTec
23
9.3 On
or before the Closing, MailTec shall deliver or cause to be delivered to
ProVision and the ProVision Shareholder:
|
(a)
|
share
certificates representing the Acquisition Shares duly registered in the
names of the holders of shares of ProVision Common
Stock;
|
|
(b)
|
certified
copies of such resolutions of the directors of MailTec as are required to
be passed to authorize the execution, delivery and implementation of this
Agreement;
|
|
(c)
|
a
certified copy of a resolution of the directors of MailTec dated as of the
Closing Date appointing the nominees of ProVision as officers of
ProVision;
|
|
(d)
|
a
resolution of the directors of MailTec appointing the nominees of the
ProVision Shareholders to the board of directors of
MailTec;
|
|
(e)
|
resignations
of all of the officers and directors of MailTec as of the Closing
Date;
|
|
(f)
|
an
acknowledgement from MailTec of the satisfaction of the conditions
precedent set forth in section 7.1
hereof;
|
|
(g)
|
the
Certificate of Merger, duly executed by the Merger
Sub;
|
|
(h)
|
such
other documents as ProVision may reasonably require to give effect to the
terms and intention of this
Agreement.
|
ARTICLE
10
POST-CLOSING
MATTERS
Forthwith after the Closing, MailTec,
ProVision and the ProVision Shareholder agree to use all their best efforts
to:
|
(a)
|
file
the Certificate of Merger in accordance with State Corporation Law, as
applicable;
|
|
(b)
|
issue
a news release reporting the
Closing;
|
|
(c)
|
file
a Form 8-K with the Securities and Exchange Commission disclosing the
terms of this Agreement and, not more than 60 days following the filing of
such Form 8-K, to file an amended Form 8-K which includes audited
financial statements of ProVision as well as pro forma financial
information of ProVision and MailTec as required by Regulation SB as
promulgated by the Securities and Exchange
Commission;
|
|
(d)
|
take
such steps are required to change the name of MailTec as may be acceptable
to the board of directors of
MailTec.
|
ARTICLE
11
GENERAL
PROVISIONS
Arbitration
11.1 The
parties hereto shall attempt to resolve any dispute, controversy, difference or
claim arising out of or relating to this Agreement by negotiation in good
faith. If such good negotiation fails to resolve such dispute,
controversy, difference or claim within fifteen (15) days after any party
delivers to any other party a notice of its intent to submit such matter to
arbitration, then any party to such dispute, controversy, difference or claim
may submit such matter to arbitration in the City of Los Angeles,
California.
24
Notice
11.2 Any
notice required or permitted to be given by any party will be deemed to be given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail, or
telecopier. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by telecopier shall be deemed to have been received on
the actual date of delivery.
Addresses
for Service
11.3 The
address for service of notice of each of the parties hereto is as
follows:
|
(a)
|
MailTec
or the Merger Sub:
|
0000 Xx.
Xxxxxxxx Xxxx.
Xxxxxxxx,
Xxxx 00000
Attention: Xxxxx
Xxxxxxxxx
Telephone
no. (000) 000-0000
Facsimile
no.
With a
copy to:
Xxxxxx X.
Xxxxx, P.C.
0000
Xxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
________
_____________
_____________
Attn: _Nathan
W. Drage____________
Telephone
no. __000-000-0000___________
Facsimile
no. _000-000-0000____________
0000 Xxxx
Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxx Xxxxxxxx
Telephone
no. (000) 000-0000
Facsimile
no. (000) 000-0000
With a
copy to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxxx, Esq.
Phone: (000)
000-0000
Telecopier: (000)
000-0000
25
Change
of Address
11.4 Any
party may, by notice to the other parties change its address for notice to some
other address in North America and will so change its address for notice
whenever the existing address or notice ceases to be adequate for delivery by
hand. A post office box may not be used as an address for service.
Further
Assurances
11.5 Each
of the parties will execute and deliver such further and other documents and do
and perform such further and other acts as any other party may reasonably
require to carry out and give effect to the terms and intention of this
Agreement.
Time
of the Essence
11.6 Time
is expressly declared to be the essence of this Agreement.
Entire
Agreement
11.7 The
provisions contained herein constitute the entire agreement among ProVision, the
ProVision Shareholder, the Merger Sub and MailTec respecting the subject matter
hereof and supersede all previous communications, representations and
agreements, whether verbal or written, among ProVision, the ProVision
Shareholder, the Merger Sub and MailTec with respect to the subject matter
hereof.
Enurement
11.8 This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
11.9 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Counterparts
11.10 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable
Law
11.11 This
Agreement is subject to the laws of the State of California.
26
IN WITNESS WHEREOF the parties
have executed this Agreement effective as of the day and year first above
written.
| MAILTEC HOLDINGS,
INC. | |
| | | |
|
By:
| /s/ Xxxx
X. Xxxxx | |
| | Xxxx
X. Xxxxx | |
| | President
and Secretary | |
| PROVISION MERGER CORP. | |
| | | |
|
By:
| /s/ Xxxx
Xxxxxxxx | |
| | Xxxx
Xxxxxxxx | |
| | President
and Secretary | |
| PROVISION INTERACTIVE TECHNOLOGIES,
INC. | |
| | | |
|
By:
| /s/ Xxxx
Xxxxxxxx | |
| | Xxxx
Xxxxxxxx | |
| | President | |
| | |
| | | |
|
By:
| /s/ Xxx
Xxxxxxxxx | |
| | Xxx
Xxxxxxxxx | |
| | Secretary | |
27
SCHEDULE A
Capitalization
|
|
ProVision
Shares
|
Acquisition
Shares
|
|
Current
ProVision Shareholders
|
7,677,500
|
15,355,000
|
|
Xxxx
Xxxxxxxx
|
400,000
|
800,000
|
|
Xxx
Xxxxxxxxx
|
300,000
|
600,000
|
|
Xxxx
Xxxxxxx
|
300,000
|
600,000
|
|
Xxxxxx
X. Xxx III
|
107,742
|
215,484
|
|
Xxxxxxx
Xxxxxxx
|
161,242
|
322,485
|
|
Xxxxxx
X.XxXxxxx
|
69,854
|
139,708
|
|
Xxxxx
Xxxxxx
|
53,734
|
107,467
|
|
Xxxx
Xxxxxxxx
|
85,908
|
171,816
|
|
Xxxxx
X.Xxxxxxxxxxx
|
26,846
|
53,693
|
|
Xxxxx
Xxxxxxxx
|
53,693
|
107,385
|
|
Xxxx
Xxxxxxxxx
|
26,819
|
53,638
|
|
Xxxxxxx
Xxxxxxxx
|
26,743
|
53,487
|
|
A.
Hosseinioun & S.Shooshtary
|
53,459
|
106,918
|
|
Xxxxxx
Xxxxxxxx
|
53,404
|
106,809
|
|
Xxxxx
X. Meena
|
26,633
|
53,267
|
|
Xxxxxx
X. Xxxxx
|
26,627
|
53,253
|
|
Xxxxxxx
Xxxxx & Xxxxxxxx Meena
|
26,606
|
53,212
|
|
Xxxxxx
Xxxx
|
26,489
|
52,979
|
|
Xxxxxxx
X. & Xxxxxx X.Xxxxx
|
158,318
|
316,637
|
|
Xxxxxx
Xxxxxxxx
|
20,972
|
41,944
|
|
Xxxxxx
X. XxXxxxx
|
36,624
|
73,248
|
|
Xxxxx
X.Xxxxxxxxxxx
|
26,050
|
52,100
|
|
Xxxxxx
X. XxXxxxx
|
77,883
|
155,765
|
|
Xxxxx
Xxxxxxxx
|
51,908
|
103,816
|
|
Xxxx
Xxxxxxxxx
|
25,927
|
51,853
|
|
Xxxxxxx
Xxxxxxxx
|
51,771
|
103,542
|
|
Xxxxxx
Xxxxxxx
|
25,789
|
51,579
|
|
Xxxx
X. Xxxxx
|
51,565
|
103,130
|
|
Xxxxx
Xxxxxxxx
|
51,551
|
103,102
|
|
Xxxxxxxx
Xxxxx
|
256,932
|
513,864
|
|
Xxxxxxx
Family Trust
|
25,666
|
51,332
|
|
Xxxxxx
Xxxxx
|
50,316
|
100,631
|
|
Xxxxxxx
Xxxxx & Xxxxxxxx Meena
|
25,103
|
50,206
|
|
|
|
|
|
Totals
|
10,439,674
|
20,879,350
|
Total
MailTec Shares Post Merger - 24,126,438
28
Schedule
5.1
|
·
|
Millennium
Xxxxxx – Piggyback registration rights (details on due diligence FTP
site)
|
|
·
|
Catalpa
Enterprises – Piggyback registration rights; Preemptive Rights (details on
due diligence FTP site)
|
|
·
|
Warrants
(not included in 6/30/07 audited financials or Due Diligence FTP
site)
|
|
o
|
Xxx
Xxxxxxxxx – 100,000
|
|
o
|
Xxxx
Xxxxxxxx – 140,000
|
29
