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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF SEPTEMBER 1, 2007
BY AND AMONG
INDIE MV MEDIA, INC.
JAKE’S ACQUISITION CORP.,
AND
JAKE’S TRUCKING INTERNATIONAL, INC.
AGREEMENT AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER, dated as of September 1, 2007 (this
"Agreement"), by and among Jake’s Trucking International,
Inc., a Nevada corporation ("JTI"), Jake’s Acquisition Corp.,
a to-be-formed Nevada corporation and wholly-owned subsidiary of
JTI ("Merger Sub"), and Indie MV Media, Inc., a British Columbia
corporation ("IMV").
WHEREAS,
the boards of directors of JTI,
Merger Sub and IMV, respectively,
have each approved, as being in
the best interests of the respective corporations
and their stockholders, the merger (the "Merger") of IMV with and
into Merger Sub, in accordance with the
applicable provisions of Nevada and BC corporate
law;
WHEREAS,
pursuant to the Merger, each
outstanding share of common stock, no par value,
of IMV ("IMV Common Stock") shall, in accordance with the
provisions of this Agreement, be converted into
the number of shares of JTI's common stock, no par value ("JTI
Common Stock"), equal to the Conversion Amount;
WHEREAS,
in connection with, and immediately prior to the consummation of,
the Merger, a forward stock split of JTI Common Stock shall
be consummated; pursuant to which each (1) outstanding share
of JTI Common Stock shall be converted into ten (10) shares of JTI
Common Stock (the "Forward Stock Split");
WHEREAS,
Michael W. Quesnel shall have submitted for cancellation his
5,000,000 shares of JTI in exchange for 100% of the issued and
outstanding stock of Jake’s Trucking International, Inc., a
BC corporation currently owned by JTI.
WHEREAS,
as a result of the Merger and the Forward Stock
Split, the stockholders of JTI and
the stockholders of IMV immediately
prior to the Effective Time (as defined in
Section 1.01) will own 60.0%
and 40.0%, respectively, of JTI Common Stock
outstanding immediately after the Effective Time;
WHEREAS,
JTI has agreed to issue a share bonus (the “Share
Bonus”) to the stockholders of IMV existing immediately prior
to the Effective Time with the Share Bonus being triggered by JTI
achieving a milestone of 250,000 unique users and the Share Bonus
shall be equal to that number of shares which will increase the
shareholdings of the stockholders of IMV existing immediately prior
to the Effective Time to 60% of JTI’s outstanding common
stock as at the date the 250,000 unique user milestone is
achieved;
WHEREAS,
for federal income tax purposes, it is
intended that the Merger shall qualify as a
tax-free reorganization under the
provisions of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code");
WHEREAS,
JTI, Merger Sub and
IMV desire to make
certain representations, warranties, covenants
and agreements in connection with the Merger and also
to prescribe various conditions to the Merger; and
WHEREAS,
this Agreement is intended to set forth the terms upon which IMV
will merge with and into Merger Sub;
NOW,
THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and
agreements set forth herein, and for other good and
valuable consideration the receipt and
adequacy of which are hereby acknowledged, and
intending to be legally bound hereby, the parties do hereby
agree as follows:
SECTION 1.01. Filing of Certificate of
Merger; Effective Time
Subject
to the provisions of this Agreement, a certificate of merger in the
forms approved by the parties hereto (the "Certificate of Merger")
shall be duly prepared, executed and acknowledged
in accordance with the Nevada corporate law and thereafter
delivered to the Secretary of State of the State of Nevada for
filing as provided by Nevada corporate law
simultaneously with the Closing (as defined in Section
2.01). The Merger shall become effective upon the filing of
the Certificate of Merger with the Secretary of State of the State
of Nevada (the "Effective Time").
SECTION 1.02. Effects of the Merger.
(a) At
the Effective Time and by virtue of
the Merger, (i) the separate
corporate existence of IMV shall cease and IMV
shall be merged with and into Merger Sub, and Merger Sub
shall be the surviving corporation (the
"Surviving Corporation"); (ii) all of the issued and
outstanding IMV Common Stock shall be converted as provided in
Section 1.03; (iii) the certificate of incorporation of Merger Sub
as in effect immediately prior to the
Effective Time shall be the certificate of incorporation of
the Surviving Corporation; and (iv) the by-laws of Merger Sub
as in effect immediately prior to the Effective Time shall be
the by-laws of the Surviving Corporation.
(b)
Without limiting the generality of the foregoing, and subject
thereto and to any other applicable laws, at the
Effective Time, all the properties, rights, privileges,
powers and franchises of IMV and
Merger Sub shall vest in the Surviving
Corporation, and, subject to the terms of this
Agreement, all debts, liabilities, restrictions,
disabilities and duties of IMV and Merger Sub shall become
the debts, liabilities, restrictions,
disabilities and duties of the Surviving
Corporation. As promptly as possible after the
Effective Time, the Surviving Corporation shall change its
name to Indie MV, Inc.
SECTION 1.03. Conversion of Securities.
As of
the Effective Time, by virtue of the Merger
and without any action on the part of any holder
thereof:
(a)
Each share of IMV Common Stock
that is issued and outstanding
immediately prior to the Effective Time, other than
shares of IMV Common Stock that are owned by shareholders who have
not consented to the Merger and who have
otherwise taken all of the steps required by BC
corporate law to properly exercise and perfect such shareholders'
dissenters rights (such shares of IMV Common Stock, the
"Dissenting Shares") shall, except as set forth below,
be converted into that number of shares of JTI Common Stock equal
to the Conversion Amount. All such shares
of IMV Common Stock shall no longer be
outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of a
certificate representing such shares of IMV Common
Stock shall cease to have any rights with respect thereto,
except (i) the right to receive the number
of shares of JTI Common Stock
to be issued in consideration therefor upon
surrender of such certificate in accordance with
Section 1.05, without interest, or (ii), in the case of
Dissenting Shares, the right to receive the payment to
which reference is made in Section 1.04(a).
(b)
Each share of capital stock of
Merger Sub that is issued and
outstanding immediately prior to the
Effective Time shall be canceled and be converted into one
share of common stock of the Surviving Corporation, and each
certificate evidencing ownership of any
such shares of Merger Sub shall
thereupon evidence ownership of the same
number of shares of the Surviving Corporation.
(c)
Each share of JTI Common Stock
that is issued and outstanding
immediately prior to the Effective Time and held
by IMV shall be canceled and each certificate
evidencing ownership of any such shares shall
thereupon be canceled.
SECTION 1.04. Dissenting Shares.
As
promptly as practicable but in no event later than the 11th
calendar day following approval of this Agreement by
the shareholders of IMV, IMV will mail to every
shareholder of record of IMV that did not consent to the approval
of this Agreement, notice of the fact and date of the approval of
this Agreement and the Merger in accordance with
BC law and that the shareholder may exercise the
shareholder's right to dissent from the Merger in
accordance with BC law. The notice shall be
accompanied by a copy applicable of BC law, a copy of this
Agreement, and such additional information
and materials as the Surviving Corporation or JTI
may elect to provide.
SECTION 1.05. Exchange Procedures.
(a) As
soon as practicable after the Effective Time, JTI shall mail to
each IMV Stockholder a letter of transmittal and
instructions for use in effecting the surrender
of certificates representing
shares of IMV Common Stock
outstanding immediately prior to the Effective
Time (the "Certificates") in appropriate and customary
form with such provisions as the board of directors of JTI after
the Merger may reasonably specify. Upon surrender of a Certificate
for cancellation to JTI, together with such letter of transmittal,
duly and properly executed, the holder of such
Certificate shall be entitled to
receive in exchange therefor a certificate representing that
number of shares of JTI Common Stock as is equal to the
product of the number of shares of IMV Common
Stock represented by the certificate multiplied by the
Conversion Amount, together with any dividends and
other distributions payable as provided in Section 1.06
hereof, and the Certificate so surrendered shall be canceled.
Until surrendered as contemplated by this Section 1.05, each
Certificate shall, at and after the Effective
Time, be deemed to represent only the right to receive, upon
surrender of such Certificate, JTI Common Stock
as contemplated by this Section 1.05,
together with any dividends and other
distributions payable as provided in Section 1.06
hereof, and the holders thereof shall have no rights
whatsoever as stockholders of JTI. Shares of JTI Common
Stock issued in the Merger shall be issued, and be deemed to
be outstanding, as of the Effective Time. JTI
shall cause all such shares of JTI Common Stock
issued pursuant to the Merger to be duly authorized,
validly issued, fully paid and non-assessable and not subject
to preemptive rights.
(b) If
any certificate representing shares of JTI
Common Stock is to be issued in a name
other than that in which the
Certificate surrendered in exchange therefor is
registered, it shall be a condition of such exchange that
the Certificate so surrendered shall be
properly endorsed and otherwise In proper form for
transfer and that the person requesting such exchange shall
pay any transfer or other taxes required by reason of the
issuance of certificates for such shares of JTI Common Stock
in a name other than that of the registered holder of the
Certificate so surrendered.
(c) In
the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit
of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and upon the
posting by such person of a bond in such amount as JTI may
reasonably direct as an indemnity against any claim
that may be made against it with respect to such Certificate, JTI
will issue in respect of such lost, stolen
or destroyed Certificate one or more
certificates representing shares of JTI Common Stock
as contemplated by this Section 1.05 and
such person shall be entitled to the
dividend and other distribution rights provided in
Section 1.06 hereof.
(d) If
any Certificates shall not have been
surrendered prior to three years after the
Effective Time (or immediately prior to such
earlier date on which any payment in
respect hereof would otherwise escheat or
become the property of any governmental unit or
agency), the payment in respect of such Certificates
shall, to the extent permitted by
applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interests of any
person previously entitled thereto.
(e) JTI
shall be entitled to deduct and withhold from
the consideration otherwise payable pursuant to
this Agreement to any holder of a Certificate
surrendered for shares of JTI Common Stock (and dividends or
distributions with respect to JTI Common Stock as
contemplated by Section 1.06 hereof) such amount as JTI is
required to deduct and withhold with
respect to the making of such payment under the Code, or provisions
of any state, local or foreign tax law. To the extent that amounts
are so deducted and withheld, such
amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of such
Certificate.
SECTION 1.06. Dividends and
Distributions.
No
dividends or other distributions declared or made with
respect to JTI Common Stock with a record date on or after the
Effective Time shall be paid to the holder of a
Certificate entitled by reason of the Merger
to receive certificates representing JTI Common
Stock until such holder surrenders such Certificate
as
provided in Section 1.05 hereof. Upon such surrender, there shall
be paid by JTI to the person in whose name certificates
representing shares of JTI Common Stock shall be issued
pursuant to the terms of this Article I (i) at the time of the
surrender of such Certificate, the amount of any
dividends and other distributions theretofore paid with respect to
that number of whole shares of such JTI Common Stock represented by
such surrendered Certificate pursuant to the terms of this Article
I, which dividends or other distributions had a record date on or
after the Effective Time and a payment date prior to
such surrender and (ii) at the appropriate
payment date, the amount of dividends and other
distributions payable with respect to that number of whole
shares of JTI Common Stock represented by such surrendered
Certificate pursuant to the terms of this Article I, which
dividends or other distributions have a record date on or after the
Effective Time and a payment date subsequent to such surrender.
SECTION 1.07. Directors.
Immediately
after the Effective Time, the director of JTI and IMV shall resign
and Andrew Hamilton shall immediately be elected as
the director of JTI and IMV. The directors
of JTI prior to the Effective Time shall remain
entitled to indemnification for acts and omissions
prior to the Effective Time to the fullest extent
permitted under Nevada law and the certificate of
incorporation and bylaws of JTI in effect prior to the
Effective Time.
SECTION 1.08. Officers.
The
officers of IMV immediately prior to the
Effective Time shall be the initial officers of the
Surviving Corporation and shall hold office until
their respective successors are duly elected and
qualified, or their earlier death, resignation
or removal. Immediately after the
Effective Time, the officers of JTI shall resign
and the officers of IMV immediately prior to the
effective time shall be appointed as the officers
of JTI. The officers of JTI prior to the Effective Time shall
remain entitled to indemnification for acts and
omissions prior to the Effective Time to the fullest extent
permitted under Nevada law and the certificate of
incorporation and bylaws of JTI in effect prior to the
Effective Time.
SECTION 1.09. No Liability.
Neither
JTI nor IMV shall be liable to any holder
of shares of IMV Common Stock or JTI Common
Stock, as the case may be, for such shares
(or dividends or distributions with respect thereto) or
cash delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
SECTION 2.01. Closing.
Unless
this Agreement shall have been terminated and the
transactions herein contemplated shall have been
abandoned pursuant to Article VIII, and subject to
the satisfaction or waiver of the
conditions set forth in Article VII, the closing
of the
Merger (the "Closing") shall take place as soon
as reasonably practicable (but in no event on written
notice of less than two (2) business days) after
all of the conditions set forth in
Article VII are satisfied or, to the extent
permitted thereunder, waived, at the offices of
IMV or at such other time and place as may
be agreed to in writing by the parties
hereto (the date of such Closing being
referred to herein as the "Closing Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
JTI
Except
as set forth in the applicable
section of the disclosure schedule delivered by
JTI to IMV prior to the execution of this Agreement (the "JTI
Disclosure Schedule"), JTI represents and warrants to IMV as
follows:
SECTION 3.01. Organization of JTI and
Merger Sub; Authority.
JTI is
a corporation duly organized, validly
existing and in good standing under the laws of the
State of Nevada. Merger Sub is a corporation
duly organized, validly existing and in
good standing under the laws of the State of
Nevada. Each of JTI and Merger sub has all requisite
corporate power and corporate authority to enter into the
Transaction Documents to which it is a party, to consummate the
transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct
its business. Subject to the receipt of stockholder
approval, the execution, delivery and performance by each of JTI
and Merger Sub of the Transaction Documents to
which it is a party and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of JTI and Merger
Sub, including, without limitation the
approval of the board of directors of JTI. The Transaction
Documents have been duly executed and delivered by each of JTI and
Merger Sub and, assuming that the Transaction
Documents constitute a valid and binding obligation of
the other parties thereto, constitute a valid and
binding obligation of each of JTI and Merger Sub,
enforceable against JTI and Merger Sub in accordance with its
terms. Each of JTI and Merger Sub is duly qualified or
licensed to do business as a foreign corporation
and is in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of
the business conducted by it makes
such qualification necessary, except where
the failure to obtain such qualification or
license would not, individually or in the aggregate, have a JTI
Material Adverse Effect. JTI has heretofore
delivered or made available to IMV complete
and correct copies of the certificate of
incorporation and by-laws of JTI and Merger Sub, the minute
books and stock transfer records of JTI and Merger Sub, as in
effect as of the date of this Agreement. Neither JTI nor
Merger Sub is in violation of its organizational documents.
SECTION 3.02. Capitalization.
The
authorized capital stock of JTI consists of 70,000,000
shares of JTI Common Stock, $0.001 par value, of which 7,640,000
shares are outstanding on the date hereof. The authorized capital
stock of Merger Sub consists of 1,000 shares of common stock,
par value $.001 per share of which 1,000 shares are issued and
outstanding on the date hereof. Immediately prior
to the Effective Time and after giving effect to the
Forward
Stock Split, the authorized capital stock of JTI shall
consist of 75,000,000 shares of JTI Common Stock,
of which 26,400,000 shares (as a result of the Forward Stock
Split) shall be issued and outstanding. No other shares of any
other class or series of JTI Common Stock or securities
exercisable or convertible into or
exchangeable for JTI Common Stock ("JTI Common
Stock Equivalents") are
authorized, issued or
outstanding. The outstanding shares of JTI
Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable and were not
issued in violation of, and are not subject to, any preemptive,
subscription or similar rights. To JTI's knowledge, none of the
outstanding shares of JTI Common Stock was issued in violation of
any Law, including without limitation, federal and state securities
laws. There are no outstanding warrants, options,
subscriptions, calls, rights, agreements,
convertible or exchangeable securities or other
commitments or arrangements relating to the
issuance, sale, purchase, return or redemption,
and, to JTI' knowledge, voting or transfer of any
shares, whether issued or unissued, of JTI Common
Stock, JTI Common Stock Equivalents or other securities of JTI. On
the Closing Date, the shares of JTI Common Stock for which shares
of IMV Common Stock shall be exchanged in the Merger will have been
duly authorized and, when issued and delivered in accordance with
this Agreement, such shares of JTI Common Stock, will be validly
issued, fully paid and nonassessable.
SECTION 3.03. No Violation; Consents and
Approvals.
The
execution and delivery by JTI of the Transaction
Documents does not, and the consummation of the
transactions contemplated hereby and thereby and
compliance with the terms hereof and thereof will
not, conflict with or result in any violation of
or default (or an event which, with notice or lapse of time
or both, would constitute a default) under, (a) the terms and
conditions or provisions of the certificate of
incorporation or by-laws of JTI or any JTI Subsidiary,
(b) any Law applicable to JTI or any JTI Subsidiary or the property
or assets of JTI or any JTI Subsidiary, or
(c) give rise to any right of
termination, cancellation or acceleration under,
or result in the creation of any Lien upon any of the
properties of JTI or any JTI Subsidiary
under any Contract to which JTI or any JTI
Subsidiary is a party or by which JTI or any JTI Subsidiary
or any assets of JTI or any JTI Subsidiary may be bound,
except, in the case of clauses (b) and (c), for such
conflicts, violations or defaults which are set forth in
Section 3.04 of the JTI Disclosure Schedule
and as to which requisite waivers or consents will have been
obtained prior to the Closing or which,
individually or in the aggregate, would not
have a JTI Material Adverse Effect. No Governmental
Approval is required to be obtained or made by or with respect to
JTI or any JTI Subsidiary in connection with the
execution and delivery of this Agreement or the consummation
by JTI of the transactions contemplated hereby.
SECTION 3.04. Litigation; Compliance with
Laws.
(a)
There are: (i) no claims, actions, suits, investigations or
proceedings pending or, to the knowledge of
JTI, threatened against, relating to or
affecting JTI or the JTI
Subsidiaries, the business, the assets,
or any employee, officer, director,
stockholder, or independent contractor of JTI or the
JTI Subsidiaries in their capacities as
such, and (ii) no orders of any Governmental
Entity or arbitrator
outstanding against JTI or the
JTI Subsidiaries, the business, the assets, or
any employee, officer, director,
stockholder, or independent contractor of JTI or the
JTI Subsidiaries in their capacities as such, or that
could prevent or enjoin, or delay in any respect,
consummation of the transactions contemplated hereby.
Section 3.12 of the JTI Disclosure includes a description of
all pending or threatened claims, actions,
suits, investigations or proceedings
involving JTI or the JTI Subsidiary,
the business, the assets, or any employee,
officer, director, stockholder or independent
contractor of JTI or the JTI Subsidiaries in their
capacities as such.
(b) JTI
and the JTI Subsidiaries have complied and are in compliance in all
material respects with all Laws applicable to JTI, any Subsidiary
of JTI, its business or its assets. Neither JTI nor the JTI
Subsidiaries has received notice from any Governmental Entity or
other Person of any material violation of Law applicable to JTI,
any of the JTI Subsidiaries, their business or their assets. JTI
and the JTI Subsidiaries have obtained and hold all required
Licenses (all of which are in full force and effect) from all
Government Entities applicable to JTI, the JTI Subsidiaries, their
business or their assets. No violations are or have been
recorded in respect of any such License and
no proceeding is pending, or, to the
knowledge of JTI, threatened to revoke or limit any
such License.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
IMV
Except
as set forth in the applicable
section of the disclosure schedule delivered by
IMV to JTI prior to the execution of this Agreement (the "IMV
Disclosure Schedule"), IMV represents and warrants to JTI as
follows:
SECTION 4.01. Organization of IMV;
Authority.
IMV is
a corporation duly organized, validly
existing and in good standing under the laws of the
State of Nevada and has all requisite corporate power
and corporate authority to enter into
the Transaction Documents, to consummate the
transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct its
business. Subject to the receipt of stockholder
approval by IMV, the execution, delivery and performance by
IMV of the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the
part of IMV, including, without limitation, the approval of
the board of directors of IMV. The
Transaction Documents have been duly
executed and delivered by IMV and, assuming that the
Transaction Documents constitute a valid and binding
obligation of JTI and Merger Sub, constitute a
valid and binding obligation of IMV. IMV is duly qualified or
licensed to do business as a foreign corporation and is in good
standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the
business conducted by it makes such
qualification necessary, except where
the failure to obtain such qualification or license would
not, individually or in the aggregate, have a IMV Material Adverse
Effect. IMV has heretofore delivered or made available to JTI
complete and correct copies of the articles of incorporation and
by-laws of IMV, the minute books and stock transfer records of IMV,
as in effect as of the date of this Agreement. IMV is not in
violation of its organizational documents.
SECTION 4.02. Capitalization.
(a)
The authorized and outstanding capital
stock of IMV is set forth in Section 4.02(a) of the IMV
Disclosure Schedule ( the "IMV Capital Stock"). All of
the outstanding shares of the IMV Capital Stock are
validly issued, fully paid and non-assessable. To
IMV's knowledge, none of the outstanding shares of IMV Capital
Stock or other securities of IMV was issued in violation of any
Law, including, without limitation, state and federal securities
laws. There are no Liens on or with respect to any outstanding
shares of IMV Capital Stock.
(b)
There are no outstanding: (i)
securities convertible into or
exchangeable for IMV Capital Stock; (ii) options,
warrants or other rights to purchase or subscribe for IMV Capital
Stock; or (iii) contracts, commitments,
agreements, understandings or arrangements of any kind
relating to the issuance of any IMV Capital Stock, any such
convertible or exchangeable securities or any such options,
warrants or rights. There is no outstanding right, option or other
agreement of any kind to purchase or otherwise to receive from IMV,
or any stockholder of IMV, any ownership interest in IMV, and there
is no outstanding right or security of any kind convertible into
such ownership interest. To IMV's knowledge, there are no voting
trusts, proxies or other similar agreements or understandings with
respect to the shares of IMV Capital Stock. There are no
obligations, contingent or otherwise, of IMV to repurchase,
redeem or otherwise acquire any shares of IMV
Capital Stock or to provide funds to or make any
investment (in the form of a loan, capital
contribution or otherwise) in any other Person.
There are no accrued and unpaid dividends with respect to any
outstanding shares of IMV Capital Stock.
SECTION 4.03. No Violation; Consents and
Approvals.
The
execution and delivery by IMV of the Transaction
Documents does not, and the consummation of the
transactions contemplated hereby and thereby and
compliance with the terms hereof and thereof will not
conflict with, or result in any violation of or
default (or an event which, with notice or lapse of time or
both, would constitute a default) under, (a) the terms and
conditions or provisions of the articles of
incorporation or by-laws of IMV, (b) any Laws
applicable to IMV or the property or assets
of IMV, or (c) give rise to any right of
termination, cancellation or acceleration
under, or result in the creation of any Lien upon any of
the properties of IMV under, any Contracts to which IMV
is a party or by which IMV or any of its assets may be bound,
except, in the case of clauses (b) and (c), for such
conflicts, violations or defaults as to which
requisite waivers or consents will have been obtained prior
to the Closing or which, individually or in
the aggregate, would not have an IMV
Material Adverse Effect. Except as
set forth in Section 4.04 of the IMV
Disclosure Schedule, no Governmental Approval is required to be
obtained or made by or with respect to IMV or any IMV Subsidiary in
connection with the execution and delivery of this Agreement or
the consummation by IMV of the transactions
contemplated hereby, except where the
failure to obtain such Governmental
Approval would not, individually or in the
aggregate, have an IMV Material Adverse Effect.
SECTION 4.04. Litigation; Compliance with
Laws.
(a)
Except as would not have a IMV Material Adverse Effect, there
are: (i) no claims, actions, suits,
investigations or proceedings pending or, to the
knowledge of IMV, threatened against,
relating to or affecting IMV, its
business, its assets, or any employee,
officer, director, stockholder, or independent
contractor of IMV in their capacities as such, and (ii) no orders
of any Governmental Entity or arbitrator are outstanding against
IMV, its business, its assets, or any employee,
officer, director, stockholder, or independent
contractor of IMV in their capacities as such, or that could
prevent or enjoin, or delay in any respect, consummation of
the transactions contemplated hereby. Section 4.04 of
the IMV Disclosure Schedule includes
a description of all claims, actions,
suits, investigations or proceedings
involving IMV, its business, its
assets, or any employee, officer,
director, stockholder or independent contractor of IMV
in their capacities as such.
(b)
Except as would not have an IMV Material
Adverse Effect, IMV has complied and is in compliance
in all material respects with all Laws applicable to
IMV, its business or its assets. IMV
has not received notice from any
Governmental Entity or other Person of any material violation
of Law applicable to it, its business or its
assets. IMV has obtained and holds all
required Licenses (all of which are in full
force and effect) from all Government
Entities applicable to it, its business or its assets. No
violations are or have been recorded in respect of any such License
and no proceeding is pending, or, to the knowledge of
IMV threatened to revoke or limit any such License.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF
BUSINESS PENDING THE MERGER
SECTION 5.01. Conduct of the Business
Pending the Merger.
(a)
During the period from the date of this Agreement and
continuing until the Effective Time, JTI agrees as to itself
and the JTI Subsidiary, that JTI shall not, and shall
cause the JTI Subsidiaries not to, engage in any
business whatsoever other than in connection with the
consummation of the transactions contemplated by this
Agreement, and shall use commercially reasonable efforts to
preserve intact its business and assets, maintain its
assets in good operating condition and repair (ordinary wear
and tear excepted), retain the services of its
officers, employees and
independent contractors and use
reasonable commercial efforts to keep in full force and
effect liability insurance and bonds
comparable in amount and scope of coverage to that
currently maintained with respect to its business,
unless, in any case, IMV consents otherwise in
writing.
(b)
During the period from the date of this Agreement and
continuing until the Effective Time,
IMV agrees that, other than in
connection with the consummation of the
transactions contemplated hereby, it shall carry
on its business only in the ordinary course of business
consistent with past practice, use commercially
reasonable efforts to preserve intact its business and assets
and use reasonable commercial efforts to keep in full force and
effect liability insurance and bonds comparable in amount and scope
of coverage to that currently maintained with respect
to its business, unless, in any case, JTI
consents otherwise in writing; provided
that IMV may take
any and all of the actions listed in Schedule 5.01(b) of the
IMV Disclosure Schedules at any time prior to or after the
date of this Agreement without the consent of JTI.
(c)
During the period from the date of this Agreement and
continuing until the Effective Time, each of IMV and JTI
agrees as to itself and, with respect to JTI, the JTI
Subsidiaries, respectively, that except as expressly
contemplated or permitted by this Agreement,
as disclosed in Section 5.01(c) of the IMV
Disclosure Schedule or the JTI Disclosure
Schedule, as applicable, or to the extent that the
other party shall otherwise consent in writing:
(i)
It shall not amend or propose
to amend its certificate of incorporation
or by-laws or equivalent
organizational documents except as contemplated in this
Agreement.
(ii)
It shall not, nor in the case of JTI shall
it permit the JTI Subsidiaries to, issue, deliver,
sell, redeem, acquire, authorize or propose to issue,
deliver, sell, redeem, acquire or authorize, any
shares of its capital stock of any class or any securities
convertible into, or any rights, warrants or options
to acquire, any such shares or
convertible securities or other ownership
interest, provided that: (1) JTI shall be
permitted to issue the shares of JTI Common Stock to be
issued to IMV Stockholders hereunder, and (2) each
party shall be permitted to issue shares of its common
stock pursuant to the exercise of stock
options, warrants and other
convertible securities outstanding as of the date hereof and
listed on the IMV Disclosure Schedule or the JTI
Disclosure Schedule, as the case may be.
(iii)
It shall not, nor in the case of JTI shall it permit the
JTI Subsidiary to, nor shall it propose to: (i)
declare, set aside, make or pay any dividend or
other distribution, payable in cash, stock,
property or otherwise, with respect to any of its capital
stock or (ii) except with respect to the Forward Stock Split,
reclassify, combine, split, subdivide or redeem,
purchase or otherwise acquire, directly or indirectly, any of its
capital stock.
(iv)
Other than dispositions in the
ordinary course of business consistent with
past practice which would not cause a JTI
Material Adverse Effect or a IMV Material Adverse Effect (as
applicable), individually or in the aggregate, to it and its
subsidiaries, taken as a whole, it shall not, nor shall it permit
any of its subsidiaries to, sell, lease, encumber or otherwise
dispose of, or agree to sell, lease (whether
such lease is an operating or capital lease),
encumber or otherwise dispose of its assets.
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