AGREEMENT AND PLAN OF MERGER BY AND AMONG JDCO, INC., A CALIFORNIA CORPORATION, ON THE ONE HAND AND MEDIA USA.COM, INC., A NEVADA CORPORATION, AND JAVA ACQUISITION CO., INC., A NEVADA CORPORATION, ON THE OTHER HAND DATED AS OF NOVEMBER 30, 2006
Exhibit
2.1
Execution
Version
AGREEMENT
AND PLAN OF MERGER
BY
AND
AMONG
JDCO,
INC.,
A
CALIFORNIA CORPORATION,
ON
THE
ONE HAND
AND
MEDIA
▇▇▇.▇▇▇, INC.,
A
NEVADA
CORPORATION,
AND
JAVA
ACQUISITION CO., INC.,
A
NEVADA CORPORATION,
ON
THE
OTHER HAND
DATED
AS
OF NOVEMBER 30, 2006
THIS
AGREEMENT AND PLAN OF MERGER (the “Agreement”)
is
dated as of November 30, 2006, by and among JDCO, Inc., a California corporation
(“JDCO”),
on
the one hand, and Media ▇▇▇.▇▇▇, Inc., a publicly traded Nevada corporation
(“Media
USA”),
and
Java Acquisition Co., Inc., a Nevada corporation and wholly-owned subsidiary
of
Media USA (“Merger
Sub”).
RECITALS
A. Media
USA, Merger Sub, and JDCO have each determined to engage in the transactions
contemplated hereby (collectively, the “Merger”)
pursuant to which Merger Sub will merge with and into JDCO, with JDCO being
the
surviving corporation, and the outstanding shares of JDCO shall be converted
into shares of Media USA’s common stock in the manner herein described.
B. The
respective boards of directors of JDCO, Media USA and Merger Sub, and Media
USA,
as the sole shareholder of Merger Sub, have each approved this Agreement and
the
Merger.
C. The
Merger Sub shareholder shall approve this Agreement and the Merger prior to
the
Closing (as hereinafter defined).
D. A
requisite percentage of the JDCO shareholders shall approve this Agreement
and
the Merger prior to the Closing.
E. The
parties intend that this Agreement constitutes a plan of reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the “Code”), and the regulations promulgated thereunder.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and in reliance upon the representations and warranties hereinafter
set
forth, the parties hereto hereby agree as follows:
ARTICLE
1
THE
MERGER
1.1 Surviving
Entity; Effective Time.
(a) At
the
Closing, subject to the terms and conditions of this Agreement, Merger Sub
shall
be merged with and into JDCO in accordance with the relevant sections of the
Nevada Revised Statutes (the “NRS”) and the California General Corporation Law
(the “CGCL”),
whereupon the separate existence of Merger Sub shall cease, and JDCO shall
be
the surviving corporation (“Surviving
Corporation”),
this
time to be known as the “Effective
Time”).
It is
intended by the parties hereto that the Merger shall constitute a reorganization
within the meaning of Section 368(a) of the Code and the parties hereto hereby
adopt this Agreement as a “plan of reorganization” within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.
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(b) Simultaneously
with the Closing, Articles of Merger (the “Merger
Articles”)
shall
be filed with the Secretary of State of the State of Nevada in accordance with
the NRS and a Certificate of Merger (the “Merger
Certificate”)
shall
be filed with the Secretary of State of the State of California in accordance
with the CGCL. From and after the Effective Time, JDCO shall possess all the
rights, privileges, powers and franchises and be subject to all of the
restrictions, disabilities and duties of both JDCO and Merger Sub, as provided
under the NRS and the CGCL.
1.2 Certificate
of Incorporation and Bylaws.
The
Certificate of Incorporation and Bylaws of JDCO as in effect immediately prior
to the Effective Time shall be the Certificate of Incorporation and Bylaws,
respectively, of the Surviving Corporation from and after the Effective Time,
until thereafter amended in accordance with applicable law.
1.3 Directors
and Officers.
From
and after the Effective Time, until their successors are duly elected or
appointed and qualified, the directors and officers of Media USA and the
Surviving Corporation shall be the directors and officers, respectively, of
JDCO
in office immediately prior to the Effective Time.
1.4 Conversion
of Shares.
As of
the Effective Time, by virtue of the Merger, automatically and without any
action on the part of any holder thereof:
(a) Each
issued and outstanding share of common stock, $0.001 par value per share, of
Merger Sub shall be converted into and become one fully paid and nonassessable
share of the Surviving Corporation.
(b) Each
fully paid and nonassessable share of JDCO common stock, no par value per share
(“JDCO
Common Stock”),
outstanding immediately prior to the Effective Time, shall be converted into
23.696 fully paid and nonassessable share of Media USA common stock, $0.001
par
value per share (“Media
USA Common Stock”),
the
shares of Media USA Common Stock to be issued to the JDCO shareholders to be
known as the “Merger Shares.”
(c) Warrants
to purchase shares of JDCO Common Stock (“JDCO
Warrants”)
and
options to purchase shares of JDCO Common Stock (“JDCO
Options”)
outstanding immediately prior to the Effective Time, shall be assumed by Media
USA and shall become warrants to purchase shares of Media USA Common Stock
(“Media
USA Warrants”)
or
options to purchase shares of Media USA Common Stock (“Media
USA Options”),
as
applicable.
Each
of
the assumed JDCO Warrants and JDCO Options will continue to have, and be subject
to, the same terms and conditions of such JDCO Warrants or JDCO Options held
immediately prior to the Effective Time (including, without limitation, any
repurchase rights, vesting provisions and provisions regarding the acceleration
of vesting on certain transactions).
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1.5 Fractional
Shares.
Fractional shares of Media USA Common Stock shall not be issued in connection
with the Merger Shares, but any fractional shares shall be rounded to the
nearest whole share. No cash shall be issued in lieu of any fractional shares.
1.6 Stock
Certificates.
(a) Upon
surrender to Media USA of the certificates representing the JDCO Common Stock,
JDCO Warrants or JDCO Options (collectively, the “JDCO
Certificates”),
the
holders of such JDCO Certificates shall each be entitled to receive in exchange
therefor one or more certificates representing the number of shares of Media
USA
Common Stock, Media USA Warrants or Media USA Options, respectively, to which
such holder is entitled pursuant to the provisions of Section 1.4 hereof.
(b) Each
JDCO
Certificate converted into Media USA Common Stock, Media USA Warrants or Media
USA Options, respectively, shall by virtue of the Merger, and without any action
on the part of the holder thereof, cease to be outstanding, be cancelled and
retired and cease to exist. Until surrendered as contemplated by this Section
1.6, each holder of JDCO Common Stock, JDCO Warrants or JDCO Options,
respectively, shall thereafter cease to possess any rights with respect to
such
shares, except the right to receive upon such surrender the number of shares
of
Media USA Common Stock, Media USA Warrants or Media USA Options, respectively,
as provided by Section 1.4 hereof.
(c) All
shares of Media USA Common Stock, Media USA Warrants or Media USA Options,
respectively, delivered to the JDCO shareholders in respect of the JDCO Common
Stock, JDCO Warrants or JDCO Options, respectively, in accordance with the
terms
of this Agreement shall be deemed to have been delivered in full satisfaction
of
all rights pertaining to such shares of JDCO Common Stock, JDCO Warrants or
JDCO
Options, respectively. If, after the Effective Time, JDCO Certificates are
presented for any reason, they shall be cancelled and exchanged as provided
in
this Section 1.6.
1.7 Closing.
Subject
to the satisfaction of the conditions precedent specified in Section 6 hereof,
the closing of the Merger shall take place at the offices of ▇▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, on or before November 30, 2006, or at such other
time and date as the parties may mutually agree (the “Closing”
or
the
“Closing
Date”).
1.8 Press
Releases.
At
Closing, Media USA shall issue such press release or announcement of the
transactions contemplated by this Agreement and make such filings as may be
required by the reporting requirements of the Securities Exchange Act of 1934,
as amended (the “Exchange
Act”),
subject to the applicable requirements of Rules 135a and 135c under the
Securities Act of 1933, as amended (the “Securities
Act”),
and
such release or announcement will be reasonably satisfactory in form and
substance to JDCO and its counsel. Media USA shall not issue any other press
release or otherwise make public any information with respect to this Agreement
or the transactions contemplated hereby, prior to the Closing, without the
prior
written consent of JDCO which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, if required by law, Media USA may issue such
a
press release or otherwise make public such information as long as Media USA
notifies JDCO of such requirement and discusses with JDCO in good faith the
contents of such disclosure.
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ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF JDCO
Except
as
set forth under the corresponding section of the disclosure schedule delivered
to Media USA and Merger Sub concurrently herewith (the “JDCO
Disclosure Schedule”),
which
JDCO Disclosure Schedule shall be deemed a part hereof, JDCO hereby represents
and warrants to Media USA and Merger Sub as follows:
2.1 Organization.
JDCO is
a corporation, duly organized, validly existing, and in good standing under
the
laws of the State of California.
2.2 Capitalization.
Immediately prior to the Closing, the authorized capital stock of JDCO will
consist of 10,000,000 shares of common stock, no par value per share, and
5,000,000 shares of preferred stock. Upon the Closing, there will be outstanding
5,401,230 shares of common stock, no outstanding shares of preferred stock,
JDCO
Warrants to purchase 62,500 shares of JDCO common stock, and no JDCO Options
to
purchase shares of JDCO common stock. All issued and outstanding shares of
capital stock of JDCO are, and on the date of Closing will be, duly authorized,
validly issued, fully paid, non-assessable and free of preemptive rights, and
have been issued pursuant to or in compliance with applicable exemptions under
federal and state securities laws.
2.3 Certain
Corporate Matters.
JDCO is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which the ownership of its properties, the employment
of
its personnel or the conduct of its business requires it to be so qualified,
except where the failure to be so qualified would not have a material adverse
effect on JDCO’ financial condition, results of operations or business. JDCO has
full corporate power and authority and all authorizations, licenses and permits
necessary to carry on the business in which it is engaged and to own and use
the
properties owned and used by it.
2.4 Authority
Relative to this Agreement.
JDCO
has the requisite power and authority to enter into this Agreement and to carry
out its obligations hereunder. The execution, delivery and performance of this
Agreement by JDCO and the consummation by JDCO of the transactions contemplated
hereby have been duly authorized by the Board of Directors of JDCO and no other
actions on the part of JDCO are necessary to authorize this Agreement or the
transactions contemplated hereby other than the consent of the shareholders
of
JDCO. This Agreement has been duly and validly executed and delivered by JDCO
and constitutes a valid and binding agreement of JDCO, enforceable against
JDCO
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity.
2.5 Consents
and Approvals; No Violations.
Except
for requirements of applicable law, no filing with, and no permit,
authorization, consent or approval of, any third party, public body or authority
is necessary for the consummation by JDCO of the transactions contemplated
by
this Agreement other than those that have been or will be obtained as of the
Closing. Neither the execution and delivery of this Agreement by JDCO nor the
consummation by JDCO of the transactions contemplated hereby, nor compliance
by
JDCO with any of the provisions hereof, will (a) conflict with or result in
any
breach of any provisions of the organizational documents of JDCO, (b) result
in
a violation or breach of, or constitute (with or without due notice or lapse
of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, agreement or other instrument
or
obligation to which JDCO is a party or by which it or its properties or assets
may be bound or (c) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to JDCO, or any of its properties or assets, except
in
the case of clauses (b) and (c) for violations, breaches or defaults which
are
not in the aggregate material to JDCO taken as a whole.
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2.6 Financial
Statements.
(a) Prior
to
Closing, JDCO will provide its audited balance sheets as at December 31, 2005,
and the related statements of operations, changes in stockholders’ equity and
cash flows for the fiscal year ended December 31, 2005 (“JDCO’s
Audited Financials”).
(b) Prior
to
Closing, JDCO will provide its unaudited balance sheet as at September 30,
2006,
and the related statements of operations, changes in stockholders’ equity and
cash flows for the nine months ended September 30, 2006 (“JDCO’s
Interim Financials”
and
together with JDCO’s Audited Financials, “JDCO’s
Financials”).
(c) JDCO’s
Financials (i) will be in accordance with the books and records of JDCO, (ii)
will be correct and complete, (iii) will fairly present the financial position
and results of operations of JDCO as of the dates indicated, and (iv) will
be
prepared in accordance with U.S. GAAP (except that (x) unaudited financial
statements may not be in accordance with GAAP because of the absence of
footnotes normally contained therein, and (y) interim (unaudited) financials
are
subject to normal year-end audit adjustments that in the aggregate will not
have
a material adverse effect on JDCO, or their respective businesses, financial
conditions or results of operations).
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF
MEDIA
USA
AND MERGER SUB
Except
as
set forth under the corresponding section of the disclosure schedule delivered
to JDCO concurrently herewith (the “Media
USA Disclosure Schedule”),
which
Media USA Disclosure Schedule shall be deemed a part hereof, Media USA and
Merger Sub, to its knowledge, hereby, jointly and severally, represents and
warrants to JDCO as follows:
3.1 Organization.
Each of
Media USA and Merger Sub is a corporation duly organized, validly existing
and
in good standing under the laws of the state of its incorporation, and has
the
requisite corporate power to carry on its business as now conducted.
5
3.2 Capitalization.
Media
USA’s authorized capital stock consists of 500,000,000 shares of capital stock,
all of which are designated as common stock, of which no more than 12,275,000
shares are issued and outstanding as of the date hereof; upon the Closing,
12,275,000 shares of Media USA Common Stock will be issued and outstanding.
All
issued and outstanding shares of capital stock of Media USA and Merger Sub
are
duly authorized, validly issued, fully paid, non-assessable and free of
preemptive rights. When issued, the Merger Shares will be duly authorized,
validly issued, fully paid, non-assessable and free of preemptive rights, there
are no outstanding or authorized options, rights, warrants, calls, convertible
securities, rights to subscribe, conversion rights or other agreements or
commitments to which Media USA or Merger Sub is a party or which are binding
upon Media USA or Merger Sub providing for the issuance by Media USA or Merger
Sub or transfer by Media USA or Merger Sub of additional shares of Media USA’s
or Merger Sub’s capital stock and neither Media USA nor Merger Sub has reserved
any shares of its capital stock for issuance, nor are there any outstanding
stock option rights, phantom equity or similar rights, contracts, arrangements
or commitments to issue capital stock of Media USA or Merger Sub. There are
no
voting trusts or any other agreements or understandings with respect to the
voting of Media USA’s or Merger Sub’s capital stock.
3.3 Certain
Corporate Matters.
Each of
Media USA and Merger Sub is duly licensed or qualified to do business and is
in
good standing as a foreign corporation in every jurisdiction in which the
character of its properties or nature of its business requires it to be so
licensed or qualified other than such jurisdictions in which the failure to
be
so licensed or qualified does not, or insofar as can reasonably be foreseen,
in
the future will not, have a material adverse effect on its financial condition,
results of operations or business. Each of Media USA and Merger Sub has full
corporate power and authority and all authorizations, licenses and permits
necessary to carry on the business in which it is engaged or in which it
proposes presently to engage and to own and use the properties owned and used
by
it. Each of Media USA and Merger Sub has delivered to JDCO true, accurate and
complete copies of its Articles of Incorporation and Bylaws, which reflect
all
restatements of and amendments made thereto at any time prior to the date of
this Agreement. The records of meetings of the stockholders and Boards of
Directors of Media USA and Merger Sub previously furnished to JDCO are complete
and correct in all material respects. The stock records of Media USA and Merger
Sub and the stockholder lists of Media USA and Merger Sub previously furnished
to JDCO are complete and correct in all material respects and accurately reflect
the record ownership and the beneficial ownership of all the outstanding shares
of Media USA’s and Merger Sub’s capital stock and any other outstanding
securities issued by Media USA and Merger Sub. Neither Media USA nor Merger
Sub
is in default under or in violation of any provision of its Articles of
Incorporation or Bylaws in any material respect. Neither Media USA nor Merger
Sub is in any material default or in violation of any restriction, lien,
encumbrance, indenture, contract, lease, sublease, loan agreement, note or
other
obligation or liability by which it is bound or to which any of its assets
is
subject. Media USA has delivered to JDCO and the JDCO shareholders a complete
copy of Media USA’s financial records and tax returns from Media USA’s inception
to the Closing Date.
3.4 Authority
Relative to this Agreement.
Each of
Media USA and Merger Sub has the requisite corporate power and authority to
enter into this Agreement and carry out its obligations hereunder. The
execution, delivery and performance of this Agreement by Media USA and Merger
Sub and the consummation of the transactions contemplated hereby have been
duly
authorized by the Boards of Directors of Media USA and Merger Sub and no other
actions on the part of Media USA or Merger Sub are necessary to authorize this
Agreement or the transactions contemplated hereby. This Agreement has been
duly
and validly executed and delivered by Media USA and Merger Sub and constitutes
a
valid and binding obligation of Media USA and Merger Sub enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity.
6
3.5 Consents
and Approvals; No Violations.
Except
for applicable requirements of federal and state securities laws, no filing
with, and no permit, authorization, consent or approval of, any third party,
public body or authority is necessary for the consummation by Media USA or
Merger Sub of the transactions contemplated by this Agreement. Neither the
execution and delivery of this Agreement by Media USA or Merger Sub nor the
consummation by Media USA or Merger Sub of the transactions contemplated hereby,
nor compliance by Media USA or Merger Sub with any of the provisions hereof,
will (a) conflict with or result in any breach of any provisions of the charter
or Bylaws of Media USA or Merger Sub, (b) result in a violation or breach of,
or
constitute (with or without due notice or lapse of time or both) a default
(or
give rise to any right of termination, cancellation or acceleration) under,
any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation to which Media
USA or Merger Sub is a party or by which it or any of its properties or assets
may be bound, or (c) violate any order, writ, injunction, decree, statute,
rule
or regulation applicable to Media USA, Merger Sub, or any of its properties
or
assets, except in the case of clauses (b) and (c) for violations, breaches
or
defaults which are not in the aggregate material to Media USA or Merger Sub
taken as a whole.
3.6 SEC
Documents.
Media
USA has filed all reports required to be filed by it under the Securities Act
and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for
the two (2) years preceding the date hereof (or such shorter period as Media
USA
was required by law to file such material) (the foregoing materials, including
the exhibits thereto, being collectively referred to herein as the “SEC
Reports”).
As of
their respective dates, the SEC Reports complied in all material respects with
the requirements of the Exchange Act and the rules and regulations promulgated
thereunder and none of the SEC Reports contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under
which they were made, not misleading. The financial statements of Media USA
included in the SEC Reports comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations
of
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles in the United States (except, in the case of
unaudited statements, as permitted by the applicable form under the Exchange
Act) applied on a consistent basis during the periods involved (except as may
be
indicated in the notes thereto) and fairly present the financial position of
Media USA as of the dates thereof and its statements of operations,
stockholders’ equity and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal and recurring year-end audit adjustments
which were and are not expected to have a material adverse effect on Media
USA,
its business, financial condition or results of operations). Except as and
to
the extent set forth on the consolidated balance sheet of Media USA as at March
31, 2006, including the notes thereto, neither Media USA nor Merger Sub has
any
liability or obligation of any nature (whether accrued, absolute, contingent
or
otherwise and whether required to be reflected on a balance sheet or other
financial statement).
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3.7 Financial
Statements.
(a) Included
in the SEC Reports are the audited balance sheets of Media USA as at December
31, 2005, and the related statements of operations, changes in stockholders’
equity and cash flows for the year ended December 31, 2005, together with the
unqualified report thereon of ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, independent auditor
(collectively, “Media
USA’s Audited Financials”).
(b) Included
in the SEC Reports are the unaudited consolidated balance sheets of Media USA
as
at March 31, 2006, and the related statements of operations and cash flows
for
the nine months ended March 31, 2006, as reviewed by ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP,
independent auditor (“Media
USA’s Interim Financials”).
(c) Media
USA’s Audited Financials and Media USA’s Interim Financials (collectively,
“Media
USA’s Financial Statements”)
are
(i) in accordance with the books and records of Media USA, (ii) correct and
complete, (iii) fairly present the financial position and results of operations
of Media USA as of the dates indicated, and (iv) prepared in accordance with
U.S. GAAP (except that (x) unaudited financial statements may not be in
accordance with U.S. GAAP because of the absence of footnotes normally contained
therein, and (y) interim (unaudited) financials are subject to normal year-end
audit adjustments that in the aggregate will not have a material adverse effect
on Media USA or Merger Sub, or their respective businesses, financial conditions
or results of operations.
3.8 Events
Subsequent to Financial Statements.
Except
as set forth in Schedule 3.8, since December 31, 2005, there has not been:
(a) any
sale,
lease, transfer, license or assignment of any assets, tangible or intangible,
of
Media USA;
(b) any
damage, destruction or property loss, whether or not covered by insurance,
affecting adversely the properties or business of Media USA;
(c) except
as
contemplated by this Agreement, any declaration or setting aside or payment
of
any dividend or distribution with respect to the shares of capital stock of
Media USA or any redemption, purchase or other acquisition of any such shares;
(d) any
issuance of shares of capital stock or the granting, issuance or execution
of
any rights, warrants, options or commitments by the Media USA, as the case
may
be, relating to its authorized or issued capital stock, except with respect
to
Media USA’s investment in Merger Sub;
(e) any
subjection to any lien on any of the assets, tangible or intangible, of Media
USA;
(f) any
incurrence of indebtedness or liability or assumption of obligations by Media
USA or Merger Sub;
8
(g) any
waiver or release by Media USA or Merger Sub of any right of any material value;
(h) any
compensation or benefits paid to officers or directors of Media USA;
(i) any
change made or authorized in the Articles of Incorporation or Bylaws of Media
USA;
(j) any
loan
to or other transaction with any officer, director or stockholder of Media
USA
giving rise to any claim or right of Media USA against any such person or of
such person against Media USA; or
(k) any
material adverse change in the condition (financial or otherwise) of the
properties, assets, liabilities or business of Media USA.
3.9 Undisclosed
Liabilities.
Except
as otherwise disclosed in Media USA’s Financial Statements, neither Media USA
nor Merger Sub has any material liability or obligation whatsoever, either
direct or indirect, matured or unmatured, accrued, absolute, contingent or
otherwise.
3.10 Tax
Matters.
(a) Media
USA
and Merger Sub have each duly filed all material federal, state, local and
foreign tax returns required to be filed by or with respect to it with the
Internal Revenue Service or other applicable taxing authority, and no extensions
with respect to such tax returns have been requested or granted;
(b) Media
USA
and Merger Sub have each paid, or adequately reserved against in Media USA’s
Financial Statements, all material taxes due, or claimed by any taxing authority
to be due, from or with respect to it;
(c) To
the
knowledge of Media USA and Merger Sub, there has been no material issue raised
or material adjustment proposed (and none is pending) by the Internal Revenue
Service or any other taxing authority in connection with any of Media USA’s or
Merger Sub’s tax returns;
(d) No
waiver
or extension of any statute of limitations as to any material federal, state,
local or foreign tax matter has been given by or requested from Media USA or
Merger Sub; and
(e) Neither
Media USA nor Merger Sub has filed a consent under Section 341(f) of the Code.
For the purposes of this Section 3.10, a tax is due (and must therefore either
be paid or adequately reserved against in Media USA’s Financial Statements) only
on the last date payment of such tax can be made without interest or penalties,
whether such payment is due in respect of estimated taxes, withholding taxes,
required tax credits or any other tax.
9
3.11 Real
Property.
Neither
Media USA nor Merger Sub owns or leases any real property.
3.12 Books
and Records.
The
corporate and financial books and records of Media USA and Merger Sub delivered
to JDCO prior to the Closing fully and fairly reflect the transactions to which
Media USA and/or Merger Sub is a party or by which they or their properties
are
bound.
3.13 Questionable
Payments.
Neither
Media USA nor Merger Sub, or any of their respective employees, agents or
representatives has, directly or indirectly, made any bribes, kickbacks, illegal
payments or illegal political contributions using Media USA’s or Merger Sub’s
funds or made any payments from Media USA’s or Merger Sub’s funds to
governmental officials for improper purposes or made any illegal payments from
Media USA’s or Merger Sub’s funds to obtain or retain business.
3.14 Environmental
Matters.
Media
USA represents and warrants that:
(a) To
the
knowledge of Media USA, after due investigation, there has been no material
failure by Media USA to comply with all applicable requirements of Environmental
Laws relating to Media USA, Media USA’s operations, and Media USA’s manufacture,
processing, distribution, use, treatment, generation, recycling, reuses, sale,
storage, handling, transportation or disposal of any Hazardous Material and
Media USA is not aware of any facts or circumstances which could materially
impair such compliance with all applicable Environmental Laws.
(b) Media
USA
has not received notice from any governmental authority or any other person
of
any actual or alleged violation of any Environmental Laws, nor is any such
notice anticipated.
(c) To
the
knowledge of Media USA, after due investigation, Environmental Laws do not
require that any permits, licenses or similar authorizations to construct,
occupy or operate any equipment or facilities used in the conduct of Media
USA’s
business.
(d) No
Hazardous Materials are now located at any real property, building, facility
or
structure owned, leased or occupied by Media USA or Merger Sub, as applicable,
at any time from its inception until the present (the “Business
Location”),
and,
to the knowledge of Media USA, after due investigation, Media USA has not ever
caused or permitted any Hazardous Materials to be generated, placed, stored,
held, handled, located or used at the Business Location, except those which
may
lawfully be used, transported, stored, held, handled, generated or placed at
the
Business Location in the conduct of Media USA’s business.
(e) Media
USA
has not received any notices, whether from a governmental authority or some
other third party, that Hazardous Material Contamination exists at the Business
Location or at any other location utilized by Media USA in the conduct of its
business nor is Media USA aware of any circumstances that would give rise to
an
allegation of such contamination.
10
(f) To
the
knowledge of Media USA, after due investigation, no investigation,
administrative order, consent order or agreement, litigation or settlement
with
respect to Hazardous Materials or Hazardous Materials Contamination is proposed,
threatened, anticipated, pending or otherwise in existence with respect to
the
Business Location or with respect to any other site controlled or utilized
by
Media USA in the operation of its business. To the knowledge of Media USA,
after
due investigation, the Business Location is not currently on, and has never
been
on, any federal or state “Superfund” or “Superlien” list.
(g) “Hazardous
Material”
means
any (i) hazardous substance as defined by any Environmental Law, (ii) any
petroleum or petroleum product, oil or waste oil; (iii) any asbestos or
polychlorinated byphenyls; (iv) any hazardous material, toxic substance, toxic
pollutant, solid waste, municipal waste, industrial waste, hazardous waste,
flammable material, radioactive material, pollutant or contaminant or words
of
similar meaning and regulatory effect under any applicable Environmental Law;
and (v) any other chemical, material, or substance exposure to which or whose
discharge, emission, disposal or release is prohibited, limited, or regulated
under any applicable Environmental Law. “Hazardous Material” includes any
mixture or solution of the foregoing, and all derivatives or synthetic
substitutes of the foregoing.
(h) “Hazardous
Material Contamination” shall mean the presence of Hazardous Materials in the
soil, groundwater, air or any other media regulated by the Environmental Laws
on, under or around the Business Location, at levels or concentration which
trigger any requirement under the Environmental Laws to remove, remediate,
mitigate, ▇▇▇▇▇ or otherwise reduce the level or concentration of Hazardous
Materials. The term “Hazardous Material Contamination” does not include the
presence of Hazardous Materials in process tanks, lines, storage or reactor
vessels, delivery trucks or other equipment or containers, which Hazardous
Materials are used in the manufacture, processing, distribution, use, storage,
sale, handling, transportation, recycling, reuse or disposal of the products
that were manufactured and/or distributed by Media USA.
3.15 Intellectual
Property.
Other
than listed on Schedule 3.15, neither Media USA nor Merger Sub owns or uses
any
trademarks, trade names, service marks, patents, copyrights or any applications
with respect thereto. Neither Media USA nor Merger Sub has any knowledge of
any
claim that, or inquiry as to whether, any product, activity or operation of
Media USA or Merger Sub infringes upon or involves, or has resulted in the
infringement of, any trademarks, trade-names, service marks, patents, copyrights
or other proprietary rights of any other person, corporation or other entity;
and no proceedings have been instituted, are pending or are threatened.
3.16 Insurance.
Neither
Media USA nor Merger Sub has any insurance policies in effect.
3.17 Contracts.
Neither
Media USA nor Merger Sub has any material contracts, leases, arrangements or
commitments (whether oral or written). Neither Media USA nor Merger Sub is
a
party to or bound by or affected by any contract, lease, arrangement or
commitment (whether oral or written) relating to: (a) the employment of any
person; (b) collective bargaining with, or any representation of any employees
by, any labor union or association; (c) the acquisition of services, supplies,
equipment or other personal property; (d) the purchase or sale of real property;
(e) distribution, agency or construction; (f) lease of real or personal property
as lessor or lessee or sublessor or sublessee; (g) lending or advancing of
funds; (h) borrowing of funds or receipt of credit; (i) incurring any obligation
or liability; or (j) the sale of personal property.
11
3.18 Litigation.
Neither
Media USA nor Merger Sub is subject to any judgment or order of any court or
quasi-judicial or administrative agency of any jurisdiction, domestic or
foreign, nor is there any charge, complaint, lawsuit or governmental
investigation pending against Media USA or Merger Sub. Neither Media USA nor
Merger Sub is a plaintiff in any action, domestic or foreign, judicial or
administrative. There are no existing actions, suits, proceedings against or
investigations of Media USA or Merger Sub, and neither Media USA nor Merger
Sub
knows of any basis for such actions, suits, proceedings or investigations.
There
are no unsatisfied judgments, orders, decrees or stipulations affecting Media
USA or Merger Sub or to which Media USA or Merger Sub is a party.
3.19 Employees.
Neither
Media USA nor Merger Sub has any employees. Neither Media USA nor Merger Sub
owes any compensation of any kind, deferred or otherwise, to any current or
previous employees. Neither Media USA nor Merger Sub has any written or oral
employment agreements with any officer or director of Media USA or Merger Sub.
Neither Media USA nor Merger Sub is a party to or bound by any collective
bargaining agreement. There are no loans or other obligations payable or owing
by Media USA or Merger Sub to any stockholder, officer, director or employee
of
Media USA or Merger Sub, nor are there any loans or debts payable or owing
by
any of such persons to Media USA or Merger Sub or any guarantees by Media USA
or
Merger Sub of any loan or obligation of any nature to which any such person
is a
party.
3.20 Employee
Benefit Plans.
Neither
Media USA nor Merger Sub has any (a) non-qualified deferred or incentive
compensation or retirement plans or arrangements, (b) qualified retirement
plans
or arrangements, (c) other employee compensation, severance or termination
pay
or welfare benefit plans, programs or arrangements or (d) any related trusts,
insurance contracts or other funding arrangements maintained, established or
contributed to by Media USA or Merger Sub.
3.21 Legal
Compliance.
Except
as disclosed in its SEC Documents and as will not have a material adverse impact
on its business, Media USA is in compliance in all material respects with all
rules, regulations and requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the SEC,
and
any other applicable foreign, federal, state and local laws and regulations.
No
claim has been filed against Media USA or Merger Sub alleging a violation of
any
applicable laws and regulations of foreign, federal, state and local governments
and all agencies thereof. Media USA and Merger Sub each holds all of the
material permits, licenses, certificates or other authorizations of foreign,
federal, state or local governmental agencies required for the conduct of its
business as presently conducted.
3.22 Subsidiaries.
Except
for all of the issued and outstanding shares of capital stock of Merger Sub,
Media USA does not own any capital stock or have any interest in any
corporation, partnership, or other form of business organization. Media USA
owns
all of the capital stock or other equity interests of Merger Sub free and clear
of any liens, charges, security interests, encumbrances, rights of first
refusal, preemptive rights or other restrictions.
12
3.23 Broker’s
Fees.
Neither
Media USA, Merger Sub, nor anyone on their behalf has any liability to any
broker, finder, investment banker or agent, or has agreed to pay any brokerage
fees, finder’s fees or commissions, or to reimburse any expenses of any broker,
finder, investment banker or agent in connection with this
Agreement.
3.24 Registration
Rights.
Media
USA has not granted or agreed to grant to any person or entity any rights
(including “piggy back” registration rights) to have any securities of Media USA
registered with the SEC or any other governmental authority that have not been
satisfied.
3.25 Listing
and Maintenance Requirements.
Media
USA has not, in the twelve (12) months preceding the date hereof, received
notice from the trading market or stock quotation system on which Media USA’s
Common Stock is listed or quoted to the effect that Media USA is not in
compliance with the listing or maintenance requirements of such trading market
or stock quotation system. Media USA is, and has no reason to believe that
it
will not in the foreseeable future continue to be, in compliance with all such
listing and maintenance requirements.
3.26 No
Disagreements with Accountants and Lawyers.
There
are no disagreements of any kind presently existing, or reasonably anticipated
by Media USA to arise, between the accountants and lawyers formerly or presently
employed by Media USA and Media USA is current with respect to any fees owed
to
its accountants and lawyers.
3.27 Disclosure.
The
representations and warranties and statements of fact made by Media USA and
Merger Sub in this Agreement are, as applicable, accurate, correct and complete
and do not contain any untrue statement of a material fact or omit to state
any
material fact necessary in order to make the statements and information
contained herein not false or misleading.
ARTICLE
4
COVENANTS
AND AGREEMENTS OF THE PARTIES
EFFECTIVE
PRIOR TO CLOSING
4.1 Corporate
Examinations and Investigations.
Prior
to the Closing, each party shall be entitled, through its employees and
representatives, to make such investigations and examinations of the books,
records and financial condition of JDCO, Media USA and Merger Sub as each party
may request. In order that each party may have the full opportunity to do so,
JDCO, Media USA and Merger Sub shall furnish each party and its representatives
during such period with all such information concerning the affairs of JDCO,
Media USA or Merger Sub as each party or its representatives may reasonably
request and cause JDCO, Media USA or Merger Sub and their respective officers,
employees, consultants, agents, accountants and attorneys to cooperate fully
with each party’s representatives in connection with such review and examination
and to make full disclosure of all information and documents requested by each
party and/or its representatives. Any such investigations and examinations
shall
be conducted at reasonable times and under reasonable circumstances, it being
agreed that any examination of original documents will be at each party’s
premises, with copies thereof to be provided to each party and/or its
representatives upon request.
13
4.2 Cooperation;
Consents.
Prior
to the Closing, each party shall cooperate with the other parties to the end
that the parties shall (i) in a timely manner make all necessary filings with,
and conduct negotiations with, all authorities and other persons the consent
or
approval of which, or the license or permit from which is required for the
consummation of the Merger and of the transactions contemplated by this
Agreement and (ii) provide to each other party such information as the other
party may reasonably request in order to enable it to prepare such filings
and
to conduct such negotiations.
4.3 Conduct
of Business.
Subject
to the provisions hereof, from the date hereof through the Closing, each party
hereto shall conduct its business in the ordinary course and in such a manner
so
that the representations and warranties contained herein shall continue to
be
true and correct in all material respects as of the Closing as if made at and
as
of the Closing. In addition, without the prior written consent of JDCO, none
of
Media USA or Merger Sub (as it relates to Media USA and Merger Sub) shall enter
into any material transactions or incur any material liability not required
or
specifically contemplated hereby, without first obtaining the written consent
of
JDCO. Without the prior written consent of JDCO, Media USA or Merger Sub, as
the
case may be, except as required or specifically contemplated hereby, each party
shall not undertake or fail to undertake any action if such action or failure
would render any of said warranties and representations untrue in any material
respect as of the Closing.
4.4 Litigation.
From
the date hereof through the Closing, each party hereto shall promptly notify
the
representative of the other parties of any lawsuits, claims, proceedings or
investigations which after the date hereof are threatened or commenced against
such party or any of its affiliates or any officer, director, employee,
consultant, agent or shareholder thereof, in their capacities as such, which,
if
decided adversely, could reasonably be expected to have a material adverse
effect upon the condition (financial or otherwise), assets, liabilities,
business, operations or prospects of JDCO, Media USA or Merger Sub.
4.5 Notice
of Default.
From
the date hereof through the Closing, each party hereto shall give to the
representative of the other parties prompt written notice of the occurrence
or
existence of any event, condition or circumstance occurring which would
constitute a violation or breach of this Agreement by such party or which would
render inaccurate in any material respect any of such party’s representations or
warranties herein.
4.6 Continuation
of Insurance Coverage.
From
the date hereof to the Closing, each party hereto shall keep in full force
and
effect insurance coverage for its assets and operations comparable in amount
and
scope to the coverage now maintained covering its assets and operations.
14
ARTICLE
5
CONDITIONS
TO CLOSING
AND
POST-CLOSING COVENANTS
5.1 Conditions
to Obligations of JDCO.
The
obligations of JDCO under this Agreement to effect the Merger shall be subject
to the satisfaction prior to the Closing Date of each of the following
conditions:
(a) Closing
Deliveries.
At the
Closing, Media USA shall have delivered or caused to be delivered to JDCO the
following:
(i) resolutions
duly adopted by the Board of Directors of each of Media USA and Merger Sub,
and
authorizing and approving the Merger and the execution, delivery and performance
of this Agreement;
(ii) a
certificate of good standing for each of Media USA and Merger Sub from the
Secretary of State of the State of Nevada, dated not earlier than three (3)
days
prior to the Closing Date;
(iii) subject
to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 thereunder,
written resignations of all officers and directors of Media USA in office
immediately prior to the Closing, and board resolutions electing the following
individuals to the positions with Media USA listed opposite their names below:
|
Name
|
Positions
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
Chief
Executive Officer and Chairman of the
Board
of Directors
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
President,
Chief Operating Officer and a
Director
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇
|
Chief
Financial Officer, Secretary and
Director
|
(iv) certificates
from each of Media USA and Merger Sub representing that the information set
forth in Section 5.1(b) is true as of the Closing Date; and
(v) such
other documents as JDCO may reasonably request in connection with the
transactions contemplated hereby.
(b) Representations
and Warranties to be True.
The
representations and warranties of Media USA and Merger Sub herein contained
shall be true in all material respects at the Closing with the same effect
as
though made at such time. Media USA and Merger Sub shall have performed in
all
material respects all obligations and complied in all material respects with
all
covenants and conditions required by this Agreement to be performed or complied
with by them at or prior to the Closing.
(c) Delaware
Reincorporation.
Media
USA shall have executed an Agreement and Plan of Merger (the “Reincorporation
Agreement”)
for
the reincorporation of Media USA from the State of Nevada to the State of
Delaware; provided,
however
that
such Reincorporation Agreement shall be in form and substance acceptable to
JDCO, in its reasonable discretion.
15
(d) Shareholder
Consent.
A
requisite percentage of the JDCO shareholders shall have approved the
Merger.
5.2 Conditions
to Obligations of Media USA and Merger Sub.
The
obligations of Media USA and Merger Sub under this Agreement to effect the
Merger shall be subject to the satisfaction prior to the Closing Date of each
of
the following conditions:
(a) Closing
Deliveries.
On the
Closing Date, JDCO shall have delivered to Media USA such documents as Media
USA
may reasonably request in connection with the transactions contemplated
hereby.
(b) Representations
and Warranties to be True.
The
representations and warranties of JDCO herein contained shall be true in all
material respects at the Closing with the same effect as though made at such
time. JDCO shall have performed in all material respects all obligations and
complied in all material respects with all covenants and conditions required
by
this Agreement to be performed or complied with by them at or prior to the
Closing.
ARTICLE
6
TERMINATION;
AMENDMENT; WAIVER
6.1 Termination
by Mutual Agreement.
This
Agreement may be terminated and the Merger may be abandoned at any time prior
to
the Effective Time, whether before or after the approval of the Merger by the
JDCO shareholders and Media USA, as the sole shareholder of Merger Sub by mutual
written consent of JDCO and Media USA by action of their respective Boards
of
Directors.
6.2 Termination
by either Media USA or JDCO.
This
Agreement may be terminated and the Merger may be abandoned at any time prior
to
the Effective Time by action of the Board of Directors of either Media USA
or
JDCO if:
(a) the
Merger shall not have been consummated by December 31, 2006, whether such date
is before or after the date of approval of the Merger by JDCO’s shareholders and
Merger Sub’s stockholder (the “Termination
Date”);
or
(b) any
statute, rule, regulation, executive order, decree, temporary restraining order,
preliminary or permanent injunction or other order enacted, entered,
promulgated, enforced or issued by any governmental authority or other legal
restraint or prohibition preventing the Merger shall be in effect;
or
16
(c) there
shall be pending or threatened by any governmental authority any suit, action
or
proceeding challenging or seeking to restrain or prohibit the Merger or seeking
to obtain any material damages from any party in connection with the Merger
or
there shall be issued any judgment permanently restraining, enjoining or
otherwise prohibiting consummation of the Merger shall become final and
non-appealable (whether before or after the approval of the Merger by JDCO’s
shareholders and Merger Sub’s sole shareholder); provided, however, that the
right to terminate this Agreement pursuant to this Section 6.2 shall not be
available to any party that has breached in any material respect its obligations
under this Agreement in any manner that shall have proximately contributed
to
the occurrence of the failure of the Merger to be consummated.
6.3 Termination
by JDCO.
This
Agreement may be terminated and the Merger may be abandoned at any time prior
to
the Effective Time, whether before or after the approval of the Merger by JDCO’s
shareholders and Merger Sub’s sole shareholder by action of JDCO’s Board of
Directors, if:
(a) (i)
any
of Media USA’s representations and warranties shall have been inaccurate as of
the date of this Agreement, such that the condition set forth in Section 5.1
would not be satisfied, or (ii) if (X) any of Media USA’s representations and
warranties become inaccurate as of a date subsequent to the date of this
Agreement (as if made on such subsequent date), such that the condition set
forth in Section 5.1 would not be satisfied and (Y) such inaccuracy has not
been
cured by Media USA within ten (10) business days after its receipt of written
notice thereof and remains uncured at the time notice of termination is given,
or (iii) Media USA’s representation and warranties with respect to its
capitalization are inaccurate such that there are shares or rights to obtain
shares outstanding in addition to those initially disclosed;
(b) JDCO’s
due diligence examination of Media USA and its assets and business reveals
information that varies materially or adversely from the understandings upon
which JDCO agreed to proceed with the transactions contemplated by this
Agreement, as determined by JDCO in its reasonable discretion;
(c) JDCO
receives an unsolicited proposal or offer from a person or entity other than
Media USA or any of its affiliates, or a solicited or unsolicited proposal
or
offer from any entity with which JDCO has had merger or acquisition discussions
within the thirty (30) day period prior to the date hereof, or any affiliate
thereof, for a tender or exchange offer, merger, consolidation or other business
combination involving JDCO or any proposal to acquire in any manner a
substantial equity interest in, or all or substantially all of the assets of
JDCO (an “Acquisition Proposal”), and the Board of Directors of JDCO determines
in good faith that its fiduciary obligations under applicable law require that
such Acquisition Proposal be accepted; or
(d) since
the
date of this Agreement, Media USA shall have suffered any material adverse
effect on its financial condition, results of operations or business.
6.4 Termination
by Media USA.
This
Agreement may be terminated and the Merger may be abandoned at any time prior
to
the Effective Time, whether before or after the approval of the Merger by JDCO’s
shareholders and Merger Sub’s sole shareholder, by action of the Board of
Directors of Media USA, if (i) any of JDCO’s representations and warranties
shall have been inaccurate as of the date of this Agreement, such that the
condition set forth in Section 6.2 would not be satisfied, or (ii) if (X) any
of
JDCO’s representations and warranties become inaccurate as of a date subsequent
to the date of this Agreement (as if made on such subsequent date), such that
the condition set forth in Section 6.2 would not be satisfied and (Y) such
inaccuracy has not been cured by JDCO within ten (10) business days after its
receipt of written notice thereof and remains uncured at the time notice of
termination is given.
17
6.5 Effect
of Termination and Abandonment.
In the
event of termination of this Agreement and the abandonment of the Merger
pursuant to this Article 6, this Agreement shall become void and of no effect
with no liability on the part of any party hereto (or of any of its directors,
officers, employees, consultants, contractors, agents, legal and financial
advisors, or other representatives); provided,
however,
that
except as otherwise provided herein, no such termination shall relieve any
party
hereto of any liability or damages resulting from any willful breach of this
Agreement.
ARTICLE
7
INDEMNIFICATION
7.1 Survival
of Warranties.
(a) Representations,
Warranties and Covenants made by Media USA and Merger Sub.
All
representations, warranties and covenants made by Media USA, Merger and Sub
herein, or in any certificate, schedule or exhibit delivered pursuant hereto,
shall survive the Closing and continue in full force and effect for a period
of
eighteen (18) months following the Closing Date. Notwithstanding the preceding
sentence, any claim for indemnity for breach of a representation or warranty
in
respect of which indemnity may be sought under this Agreement shall survive
the
time at which such representation or warranty otherwise would terminate pursuant
to the preceding sentence, if notice of the inaccuracy or breach thereof giving
rise to such right of indemnity shall have been given to the party against
whom
such indemnity may be sought prior to such time.
(b) Representations,
Warranties and Covenants made by JDCO.
All
representations, warranties and covenants made by JDCO herein, or in any
certificate, schedule or exhibit delivered pursuant hereto, shall survive the
Closing.
7.2 Media
USA and Merger Sub Indemnification.
From
and after the Closing and for a period of eighteen (18) months following the
Closing Date, subject to the limitations set forth in this Article 7, Media
USA
and Merger Sub will, jointly and severally, indemnify, defend, and hold harmless
JDCO and its respective shareholders, officers, directors, agents, attorneys
and
employees (the “Indemnified
Persons”)
from
and against any and all losses, costs, damages, liabilities and expenses arising
from claims, demands, actions, causes of action, including, without limitation,
attorneys’ fees and expenses of investigation and defense (net of any directly
related insurance payments or recoveries received or to be received from third
party insurers) (collectively, “Damages”)
arising out of any misrepresentation or breach of or default in connection
with
any of the representations, warranties, covenants and agreements given or made
by Media USA and/or Merger Sub in this Agreement or any exhibit or schedule
to
this Agreement (each a “Media
USA Breach”
and
collectively, “Media
USA Breaches”).
18
7.3 No
Liability for Shareholders.
Except
as otherwise set forth in this Agreement, in no event shall the shareholders
of
JDCO be liable to Media USA, Merger Sub, nor shall the shareholders of Media
USA
be liable to JDCO or the other indemnitees described in Section 7.2, for any
consequential, exemplary, punitive, or speculative damages, except to the extent
any such otherwise excluded damages are a component of Damages which arise
out
of a third party claim for which such indemnified party becomes liable and
for
which third party claim they are entitled to indemnification pursuant to this
Article 7.
7.4 Sole
Remedy.
(a)
Media
USA and Merger Sub.
The
ability to terminate the Merger in the event of a breach of the representations
and warranties or covenants by JDCO, as set forth in Section 7.4, shall be
the
sole remedy at law available for any such breach; provided, however, that this
limitation shall not prevent Media USA or Merger Sub from seeking equitable
remedies or any legal remedies for claims arising with respect to this Agreement
from willful misconduct or fraud.
(b)
JDCO.
The
ability to terminate the Merger in the event of a breach of the representations
and warranties or covenants by Media USA or Merger Sub, as set forth in Section
7.3, shall be the sole remedy at law for the satisfaction of (i) the
indemnification obligations set forth in Section 7.2 and (ii) any other claim
for monetary damages arising from a breach of this Agreement; provided, however,
that this limitation shall not prevent JDCO from seeking equitable remedies
or
any legal remedies for claims arising with respect to this Agreement from
willful misconduct or fraud.
ARTICLE
8
GENERAL
PROVISIONS
8.1 Name
Change.
The
parties agree to take whatever actions that are necessary to change the name
of
Media USA to such name as proposed by JDCO as of or as soon as possible after
the Effective Time.
8.2 Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, sent by overnight
courier or mailed by registered or certified mail (postage prepaid and return
receipt requested) to the party to whom the same is so delivered, sent or mailed
at the following addresses:
If
to
JDCO:
JDCO,
Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇,
▇▇
▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
19
With
a
Copy to:
▇▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to
Media USA or Merger Sub:
▇.▇.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇,
▇▇
▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇
8.3 Interpretation.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
References to Sections and Articles refer to sections and articles of this
Agreement unless otherwise stated.
8.4 Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated and the parties shall negotiate in good faith to modify this
Agreement to preserve each party’s anticipated benefits under this Agreement.
8.5 Miscellaneous.
This
Agreement (together with all other documents and instruments referred to
herein): (a) constitutes the entire agreement and supersedes all other prior
agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof; (b) except as expressly set forth herein,
is not intended to confer upon any other person any rights or remedies hereunder
and (c) shall not be assigned by operation of law or otherwise, except as may
be
mutually agreed upon by the parties hereto.
8.6 Separate
Counsel.
Each
party hereby expressly acknowledges that it has been advised to seek its own
separate legal counsel for advice with respect to this Agreement, and that
no
counsel to any party hereto has acted or is acting as counsel to any other
party
hereto in connection with this Agreement.
8.7 Governing
Law; Venue.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of California. Any and all actions brought under this
Agreement shall be brought in the state and/or federal courts of the United
States sitting in California and each party hereby waives any right to object
to
the convenience of such venue.
8.8 Counterparts
and Facsimile Signatures.
This
Agreement may be executed in two (2) or more counterparts, which together shall
constitute a single agreement. This Agreement and any documents relating to
it
may be executed and transmitted to any other party by facsimile, which facsimile
shall be deemed to be, and utilized in all respects as, an original, wet-inked
document.
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8.9 Amendment.
This
Agreement may be amended, modified or supplemented only by an instrument in
writing executed by all parties hereto.
8.10 Parties
In Interest: No Third Party Beneficiaries.
Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. This Agreement
shall not be deemed to confer upon any person not a party hereto any rights
or
remedies hereunder.
8.11 Waiver.
No
waiver by any party of any default or breach by another party of any
representation, warranty, covenant or condition contained in this Agreement
shall be deemed to be a waiver of any subsequent default or breach by such
party
of the same or any other representation, warranty, covenant or condition. No
act, delay, omission or course of dealing on the part of any party in exercising
any right, power or remedy under this Agreement or at law or in equity shall
operate as a waiver thereof or otherwise prejudice any of such party’s rights,
powers and remedies. All remedies, whether at law or in equity, shall be
cumulative and the election of any one or more shall not constitute a waiver
of
the right to pursue other available remedies.
8.12 Expenses.
At or
prior to the Closing, the parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers.
8.13 Schedules.
If
there is any inconsistency between the statements in the body of this Agreement
and those in the schedules (other than an exception expressly set forth in
the
schedules with respect to a specifically identified representation or warranty),
the statements in the body of this Agreement will control.
8.14 Construction.
The
parties have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises,
this
Agreement will be construed as if drafted jointly by the parties and no
presumption or burden of proof will arise favoring or disfavoring any party
because of the authorship of any provision of this Agreement.
8.15 Incorporation
of Exhibits and Schedules.
The
exhibits, schedules, and other attachments identified in this Agreement are
incorporated herein by reference and made a part hereof.
[Signature
Page to Follow]
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IN
WITNESS WHEREOF, the parties have executed this Agreement and Plan of Merger
as
of the date first written above.
JDCO,
INC.
By:
/s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
President
MEDIA
▇▇▇.▇▇▇, INC.
By:
/s/
▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇
Title:
President
JAVA
ACQUISITION CO., INC.
By:
/s/
▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇
Title:
President
22