ACQUISITION AGREEMENT AND PLAN OF MERGER DATED AS OF DECEMBER 29, 2008 BY AND AMONG BOATATOPIA (BTTA), a Nevada corporation, BOATATOPIA SUB CORP, a Nevada corporation AND V2P COMMUNICATIONS, INC. (V2P), a Nevada corporation
ACQUISITION
AGREEMENT AND PLAN OF MERGER
DATED AS
OF DECEMBER 29, 2008
BY AND
AMONG
BOATATOPIA
(BTTA), a Nevada corporation,
BOATATOPIA
SUB CORP, a Nevada corporation
AND
V2P
COMMUNICATIONS, INC. (V2P), a Nevada corporation
TABLE
OF CONTENTS
|
ARTICLE
1.
|
The
Merger
|
1
|
|
Section
1.1.
|
The
Merger
|
1
|
|
Section
1.2.
|
Effective
Time
|
1
|
|
Section
1.3.
|
Closing
of the Merger
|
2
|
|
Section
1.4.
|
Effects
of the Merger
|
2
|
|
Section
1.5.
|
Articles
of Incorporation; Bylaws
|
2
|
|
Section
1.6.
|
Board
of Directors and Officers
|
2
|
|
Section
1.7.
|
Conversion
of Shares
|
2
|
|
Section
1.8.
|
Exchange
of Certificates
|
4
|
|
Section
1.9.
|
Stock
Options
|
5
|
|
Section
1.10.
|
Warrants
|
5
|
|
Section
1.11.
|
Taking
of Necessary Action; Further Action
|
5
|
|
ARTICLE
2.
|
Representations
and Warranties of BTTA
|
5
|
|
Section
2.1.
|
Organization
and Qualification
|
6
|
|
Section
2.2.
|
Capitalization
of BTTA
|
6
|
|
Section
2.3.
|
Authority
Relative to this Agreement; Recommendation.
|
7
|
|
Section
2.4.
|
SEC
Reports; Financial Statements
|
7
|
|
Section
2.5.
|
Information
Supplied
|
8
|
|
Section
2.6.
|
Consents
and Approvals; No Violations
|
8
|
|
Section
2.7.
|
No
Default
|
9
|
|
Section
2.8.
|
No
Undisclosed Liabilities; Absence of Changes
|
9
|
|
Section
2.9.
|
Litigation
|
9
|
|
Section
2.10.
|
Compliance
with Applicable Law
|
10
|
|
Section
2.11.
|
Employee
Benefit Plans; Labor Matters
|
10
|
|
Section
2.12.
|
Environmental
Laws and Regulations
|
11
|
|
Section
2.13.
|
Tax
Matters
|
12
|
|
Section
2.14.
|
Title
To Property
|
12
|
|
Section
2.15.
|
Intellectual
Property
|
13
|
|
Section
2.16.
|
Insurance
|
13
|
|
Section
2.17.
|
Vote
Required
|
13
|
|
Section
2.18.
|
Tax
Treatment
|
13
|
|
Section
2.19.
|
Affiliates
|
13
|
|
Section
2.20.
|
Certain
Business Practices
|
14
|
|
Section
2.21.
|
Insider
Interests
|
14
|
|
Section
2.22.
|
Opinion
of Financial Adviser
|
14
|
|
Section
2.23.
|
Brokers
|
14
|
|
Section
2.24.
|
Disclosure
|
14
|
|
Section
2.25.
|
No
Existing Discussion
|
14
|
|
Section
2.26.
|
Material
Contracts
|
14
|
|
ARTICLE
3.
|
Representations
and Warranties of V2P.
|
15
|
|
Section
3.1.
|
Organization
and Qualification
|
15
|
|
Section
3.2.
|
Capitalization
of V2P
|
16
|
|
Section
3.3.
|
Authority
Relative to this Agreement; Recommendation
|
16
|
|
Section
3.4.
|
SEC
Reports; Financial Statements
|
17
|
|
Section
3.5.
|
Information
Supplied
|
17
|
|
Section
3.6.
|
Consents
and Approvals; No Violations
|
17
|
|
Section
3.7.
|
No
Default
|
17
|
|
Section
3.8
|
No
Undisclosed Liabilities; Absence of Changes
|
18
|
|
Section
3.9.
|
Litigation
|
18
|
|
Section
3.10.
|
Compliance
with Applicable Law
|
18
|
|
Section
3.11.
|
Employee
Benefit Plans; Labor Matters
|
19
|
|
Section
3.12.
|
Environmental
Laws and Regulations
|
20
|
|
Section
3.13.
|
Tax
Matters
|
20
|
|
Section
3.14.
|
Title
to Property
|
21
|
|
Section
3.15.
|
Intellectual
Property
|
21
|
|
Section
3.16.
|
Insurance
|
21
|
|
Section
3.17.
|
Vote
Required
|
21
|
|
Section
3.18.
|
Tax
Treatment
|
22
|
|
Section
3.19.
|
Affiliates
|
22
|
|
Section
3.20.
|
Certain
Business Practices
|
22
|
|
Section
3.21.
|
Insider
Interests
|
22
|
|
Section
3.22.
|
Opinion
of Financial Adviser
|
22
|
|
Section
3.23.
|
Brokers
|
22
|
|
Section
3.24.
|
Disclosure
|
22
|
|
Section
3.25.
|
No
Existing Discussions
|
22
|
|
Section
3.26.
|
Material
Contracts
|
22
|
|
ARTICLE
4.
|
Covenants
|
23
|
|
Section
4.1.
|
Conduct
of Business of BTTA
|
23
|
|
Section
4.2.
|
Conduct
of Business of V2P
|
25
|
|
Section
4.3.
|
Preparation
of 8-K
|
26
|
|
Section
4.4.
|
Other
Potential Acquirers
|
27
|
|
Section
4.5.
|
Meetings
of Stockholders
|
27
|
|
Section
4.6.
|
FINRA
OTC:BB Listing
|
28
|
|
Section
4.7.
|
Access
to Information
|
28
|
|
Section
4.8.
|
Additional
Agreements; Reasonable Efforts.
|
28
|
|
Section
4.9.
|
Employee
Benefits; Stock Option and Employee Purchase Plans
|
29
|
|
Section
4.10.
|
Public
Announcements
|
29
|
|
Section
4.11.
|
Indemnification
|
29
|
|
Section
4.12.
|
Notification
of Certain Matters
|
30
|
|
ARTICLE
5.
|
Conditions
to Consummation of the Merger
|
30
|
|
Section
5.1.
|
Conditions
to Each Party’s Obligations to Effect the Merger
|
30
|
|
Section
5.2.
|
Conditions
to the Obligations of BTTA and BTTA Sub Co
|
31
|
|
Section
5.3.
|
Conditions
to the Obligations of V2P
|
32
|
|
ARTICLE
6.
|
Termination;
Amendment; Waiver
|
32
|
|
Section
6.1.
|
Termination
|
32
|
|
Section
6.2.
|
Effect
of Termination
|
33
|
|
Section
6.3.
|
Fees
and Expenses
|
33
|
|
Section
6.4.
|
Amendment
|
33
|
|
Section
6.5.
|
Extension;
Waiver
|
34
|
|
ARTICLE
7.
|
Miscellaneous
|
34
|
|
Section
7.1.
|
Non-survival
of Representations and Warranties
|
34
|
|
Section
7.2.
|
Entire
Agreement; Assignment
|
34
|
|
Section
7.3.
|
Validity
|
34
|
|
Section
7.4.
|
Notices
|
34
|
|
Section
7.5.
|
Governing
Law
|
35
|
|
Section
7.6.
|
Descriptive
Headings
|
35
|
|
Section
7.7.
|
Parties
in Interest
|
35
|
|
Section
7.8.
|
Certain
Definitions
|
35
|
|
Section
7.9.
|
Personal
Liability
|
36
|
|
Section
7.10.
|
Specific
Performance
|
36
|
|
Section
7.11.
|
Counterparts
|
36
|
|
Section
7.12.
|
Conflict
Waiver
|
36
|
|
Signatures
|
37
|
This
Agreement and Plan of Merger (this “Agreement”), dated as of December 29, 2008,
is by and among Boatatopia, a Nevada corporation (“BTTA”), Boatatopia Sub Corp,
a Nevada corporation and wholly owned subsidiary of BTTA (“BTTA Sub Co”) and V2P
Communications Inc., a Nevada corporation (“V2P”), BTTA Sub Co and V2P being the
constituent entities in the Merger.
Whereas,
the Boards of Directors of BTTA, BTTA Sub Co and V2P each have, in light of and
subject to the terms and conditions set forth herein, (i) determined that the
Merger (as defined below) is fair to their respective stockholders and in the
best interests of such stockholders and (ii) approved the Merger in accordance
with this Agreement;
Whereas, this Agreement constitutes the
entire, final and complete agreement between BTTA, BTTA Sub Co, and V2P and
supersedes and replaces all prior or existing written and oral agreements,
between BTTA, BTTA Sub Co, and V2P with respect to the subject matter
hereof;
Whereas,
for Federal income tax purposes, it is intended that the Merger qualify as a
reorganization under the provisions of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the “Code”); and
Whereas,
BTTA, BTTA Sub Co and V2P desire to make certain representations, warranties,
covenants and agreements in connection with the Merger and also to prescribe
various conditions to the Merger.
Now,
therefore, in consideration of the premises and the representations, warranties,
covenants and agreements herein contained, and intending to be legally bound
hereby, BTTA, BTTA Sub Co and V2P hereby agree as follows:
ARTICLE
I
The
Merger
Section
1.1. The
Merger. At the Effective Time (as defined below) and upon the terms and
subject to the conditions of this Agreement and in accordance with the General
Corporation Law of the State of Nevada (the “NGCL”), BTTA Sub Co shall be merged
with and into V2P (the “Merger”). Following the Merger, V2P shall continue as
the surviving corporation (the “Surviving Corporation”), shall continue to be
governed by the laws of the jurisdiction of its incorporation or organization
and the separate corporate existence of BTTA Sub Co shall cease. V2P shall
continue its existence as a wholly owned subsidiary of BTTA. The
Merger is intended to qualify as a tax-free reorganization under Section 368 of
the Code as relates to the non-cash exchange of stock referenced
herein.
Section
1.2. Effective
Time. Subject to the terms and conditions set forth in this Agreement, a
Certificate of Merger (the “Merger Certificate”) shall be duly executed and
acknowledged by each of V2P, BTTA Sub Co and BTTA, and thereafter the Merger
Certificate reflecting the Merger shall be delivered to the Secretary of State
of the State of Nevada for filing pursuant to the NGCL on the Closing Date (as
defined in Section 1.3). The Merger shall become effective on January 30, 2009,
as set forth in the Merger Certificate (the time at which the Merger becomes
effective shall be referred to herein as the “Effective Time”).
Section
1.3. Closing of the
Merger. The closing of the Merger (the “Closing”) will take place on
January 29, 2009 upon satisfaction of the conditions set forth in Article 5 (the
“Closing Date”), at the offices of Xxxxxxxxxx Law Group, 000 Xxxx Xxxxxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, unless another time, date or place is
agreed to in writing by the parties hereto.
Section
1.4. Effects of the
Merger. The Merger shall have the effects set forth in the NGCL. Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time, all the properties, rights, privileges, powers of BTTA Sub Co shall vest
in the Surviving Corporation, and all debts, liabilities and duties of BTTA Sub
Co shall become the debts, liabilities and duties of the Surviving Corporation.
Concurrently, V2P shall remain a wholly owned subsidiary of BTTA.
Section
1.5. Articles of
Incorporation and Bylaws. The Articles of Incorporation and Bylaws of V2P
in the respective forms delivered by V2P to BTTA prior to the date of this
Agreement will remain in full force and effect and will be the Articles of
Incorporation and Bylaws of the Surviving Corporation.
Section
1.6. Board of
Directors and Officers.
(a) Board of Directors of BTTA Sub
Co. At or prior to the Effective Time, BTTA agrees to take such action as
is necessary (i) to cause the number of directors comprising the full Board of
Directors of BTTA Sub Co to be one (1) person and (ii) to cause Xxx
Xxxx, (the “BTTA Designee”) to be elected as the sole director of
BTTA Sub Co.
(b) Board of Directors of BTTA.
At or prior to the Effective Time, each of V2P and BTTA agrees to take such
action as is necessary (i) to cause the number of directors comprising the full
Board of Directors of BTTA to be four (4) persons and (ii) to cause Xxx Xxxx
(the “V2P Designee”) to be elected as a director of BTTA. If the V2P Designee
shall decline or be unable to serve as a director prior to the Effective Time,
V2P shall nominate another person to serve in such person’s stead, which such
person shall be subject to approval of the other party. From and after the
Effective Time, and until successors are duly elected or appointed and qualified
in accordance with applicable law, Xxx Xxxx shall be Chief Executive Officer,
President, Secretary and Treasurer of the Surviving Corporation. Additionally,
prior to the Effective Time, Xxxxxxx Xxxxxx (“Xxxxxx”), the existing Chief
Executive Officer, and director of BTTA, and any other officer of BTTA, shall
resign upon execution of this Agreement, and pursuant to the terms of the
termination agreement (“Termination Agreement”) between Xxxxxx and BTTA. Upon
the resignation of Xxxxxx, until successors are duly elected or appointed and
qualified in accordance with applicable law, Xxx Xxxx shall be
Chief
Executive Officer, President, Secretary and Treasurer of BTTA.
Section
1.7. Conversion of
Shares.
(a) At
the Effective Time, each share of common stock, par value $.001 per share of V2P
(individually a "V2P Share" and collectively, the "V2P Shares") issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of V2P, BTTA, or the holder thereof,
be converted into and shall become fully paid and nonassessable BTTA common
shares determined by dividing (i) Sixteen Million (16,000,000), by (ii) the
total number of shares of V2P, One Hundred and Six Million Four Hundred and
Eighty Five Thousand Five Hundred (106,485,500) outstanding immediately prior to
the Effective Time (such quotient, the “Exchange Ratio”). The holder of one or
more shares of V2P common stock shall be entitled to receive in exchange
therefore a number of shares of BTTA Common Stock equal to the product of (x)
(the number of shares of V2P common stock (106,485,500)), times (y) (the
Exchange Ratio. BTTA Shares and V2P Shares are sometimes referred to
collectively herein as "Shares." By way of example, 16,000,000 / 106,485,500 =
..1502 (the Exchange Ratio). The number of shares of V2P common stock held by a
stockholder (assume 100,000 shares) times the Exchange Ratio of .1502 equals
15,020 shares of BTTA Shares to be issued. With the exception of a 10:1
forward split being conducted by BTTA subsequent to the execution of this Merger
Agreement and prior to the Effective Time, in the event that, subsequent to the
date of this Agreement but prior to the Effective Time, the outstanding shares
of BTTA Common Stock or V2P Common Stock are changed into a different number of
shares or a different class as a result of a stock split, reverse stock split,
stock dividend, subdivision, reclassification, combination, exchange,
recapitalization or similar transaction, the number of shares of BTTA Common
Stock into which each share of V2P Common Stock will be converted as a result of
the Merger will be adjusted appropriately.
(b) V2P hereby acknowledges
that (i) the BTTA Shares have not been and will not be registered under the
Securities Act of 1933 (“1933 Act”) or under the securities laws of any state
and, therefore, the BTTA Shares cannot be resold unless they are subsequently
registered under said laws or exemptions from such registrations as are
available; and (ii) the transferability of the Shares is restricted and that a
legend shall be placed on the certificates representing the securities
substantially to the following effect:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”). THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF A CURRENT AND EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
WITH RESPECT TO SUCH SHARES, OR AN OPINION SATISFACTORY TO THE ISSUER AND ITS
COUNSEL TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER THE
ACT.
(c) At
the Effective Time, each V2P Share held in the treasury of V2P, by V2P
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of V2P, BTTA Sub Co or BTTA be canceled, retired
and cease to exist and no payment shall be made with respect
thereto.
Section
1.8. Exchange of
Certificates.
(a) Prior
to the Effective Time, BTTA shall enter into an agreement with, and shall
deposit with, Xxxxxxxxxx Law Group or such other agent or agents as may be
satisfactory to BTTA and V2P (the “Exchange Agent”), for the benefit of the
holders of V2P Shares, for exchange through the Exchange Agent in accordance
with this Article I: (i) certificates representing the appropriate number of
BTTA Shares to be issued to holders of V2P Shares issuable pursuant to Section
1.7 in exchange for outstanding V2P Shares.
(b) As
soon as reasonably practicable after the Effective Time, the Exchange Agent
shall mail to each holder of record of a certificate or certificates which
immediately prior to the Effective Time represented outstanding V2P Shares (the
“Certificates”) whose shares were converted into the right to receive BTTA
Shares pursuant to Section 1.7: (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates to the Exchange Agent and
shall be in such form and have such other provisions as V2P and BTTA may
reasonably specify) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for certificates representing BTTA Shares. Upon
surrender of a Certificate to the Exchange Agent, together with such letter of
transmittal, duly executed, and any other required documents, the holder of such
Certificate shall be entitled to receive in exchange therefore a certificate
representing that number of whole BTTA Shares and the Certificate so surrendered
shall forthwith be canceled. In the event of a transfer of ownership of V2P
Shares which are not registered in the transfer records of V2P, a certificate
representing the proper number of BTTA Shares may be issued to a transferee if
the Certificate representing such V2P Shares is presented to the Exchange Agent
accompanied by all documents required by the Exchange Agent or BTTA to evidence
and effect such transfer and by evidence that any applicable stock transfer or
other taxes have been paid. Until surrendered as contemplated by this Section
1.8, each Certificate shall be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender the certificate
representing BTTA Shares as contemplated by this Section 1.8.
(c) No
dividends or other distributions declared or made after the Effective Time with
respect to BTTA Shares with a record date after the Effective Time shall be paid
to the holder of any un-surrendered Certificate with respect to the BTTA Shares
represented thereby until the holder of record of such Certificate shall
surrender such Certificate.
(d) In
the event that any Certificate for V2P Shares or BTTA Shares shall have been
lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor,
upon the making of an affidavit of that fact by the holder thereof such BTTA
Shares and cash in lieu of fractional BTTA Shares, if any, as may be required
pursuant to this Agreement; provided, however, that BTTA or the Exchange Agent,
may, in its respective discretion, require the delivery of a suitable bond,
opinion or indemnity.
(e) All
BTTA Shares issued upon the surrender for exchange of V2P Shares in accordance
with the terms hereof shall be deemed to have been issued in full satisfaction
of all rights pertaining to such V2P Shares. There shall be no further
registration of transfers on the stock transfer books of either of V2P or BTTA
of the V2P Shares or BTTA Shares which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to BTTA
for any reason, they shall be canceled and exchanged as provided in this Article
I.
(f) No
fractional BTTA Shares shall be issued in the Merger, but in lieu thereof each
holder of V2P Shares otherwise entitled to a fractional BTTA Share shall, upon
surrender of its, his or her Certificate or Certificates, be entitled to receive
an additional share to round up to the nearest round number of
shares.
Section
1.9. Stock
Options. At the Effective Time, each outstanding option to purchase V2P
Shares, if any (a “V2P Stock Option” or collectively, “V2P Stock Options”)
issued pursuant to any V2P Stock Option Plan or V2P Long Term Incentive Plan
whether vested or unvested, shall be cancelled.
Section
1.10. Warrants.
At the Effective Time, each outstanding warrant to purchase V2P Shares, if any
(a “V2P Warrant” or collectively, “V2P Warrants”) issued and pursuant to any V2P
Warrant Agreement as disclosed in Schedule 3.2 shall convert to the right to
receive replacement BTTA Warrants, adjusted to reflect the proportionate
reduction in number of shares as set forth in section 1.7 above. The Exercise
Price per Warrant Share in effect at the time of the record date for the
determination of Stockholders entitled to receive shares pursuant to section 1.7
shall be adjusted so that it shall equal the price determined by multiplying
such Exercise Price by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such action, and the
denominator of which shall be the number of shares of Common Stock outstanding
after giving effect to such action. Such adjustment shall be made
successively whenever any event listed above shall occur and shall become
effective at the close of business on such record date or at the close of
business on the date immediately preceding such effective date, as
applicable.
Section
1.11. Taking of
Necessary Action; Further Action. If, at any time after the Effective
Time, V2P or BTTA reasonably determines that any deeds, assignments, or
instruments or confirmations of transfer are necessary or desirable to carry out
the purposes of this Agreement and to vest BTTA with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of
V2P, the officers and directors of BTTA and V2P are fully authorized in the name
of their respective corporations or otherwise to take, and will take, all such
lawful and necessary or desirable action.
ARTICLE
2
Representations
and Warranties of BTTA
Except as
set forth on the Disclosure Schedule delivered by BTTA and BTTA Sub Co to V2P
(the “BTTA Disclosure Schedule”), BTTA and BTTA Sub Co hereby represent and
warrant to V2P as follows:
Section
2.1. Organization and
Qualification.
(a) Each
of BTTA and BTTA Sub Co is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization and each
has all requisite power and authority to own, lease and operate its properties
and to carry on its business as now being conducted, except where the failure to
be so organized, existing and in good standing or to have such power and
authority would not have a Material Adverse Effect (as defined below) on BTTA.
When used in connection with BTTA, the term “Material Adverse Effect” means any
change or effect (i) that is or is reasonably likely to be materially adverse to
the business, results of operations, condition (financial or otherwise) or
prospects of BTTA, other than any change or effect arising out of general
economic conditions unrelated to any business in which BTTA is engaged, or (ii)
that may impair the ability of BTTA to perform its obligations hereunder or to
consummate the transactions contemplated hereby.
(b) BTTA
has heretofore delivered to V2P accurate and complete copies of the Articles of
Incorporation and Bylaws (or similar governing documents), as currently in
effect, of BTTA. Except as set forth on Schedule 2.1 of the BTTA Disclosure
Schedule, BTTA is duly qualified or licensed and in good standing to do business
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 or licensing
necessary, except in such jurisdictions where the failure to be so duly
qualified or licensed and in good standing would not have a Material Adverse
Effect on BTTA.
Section
2.2. Capitalization of
BTTA.
(a) The
authorized capital stock of BTTA consists of: (i) One Hundred Million
(100,000,000) BTTA Common Shares, par value $0.001 per share, of which, as of
September 30, 2008, approximately 1,400,000 BTTA Shares were issued and
outstanding; and (ii) Ten Million (10,000,000) BTTA Preferred Shared, par value
$0.001 per share, were authorized, of which no Preferred Shares were issued. The
authorized capital stock of BTTA Sub Co consists of One Million (1,000,000)
shares of common stock ("BTTA Sub Co Shares"), of which, as of the date of this
Agreement, One thousand (1,000) shares were issued and
outstanding. All of the outstanding BTTA Shares and BTTA Sub Co
Shares have been duly authorized and validly issued, and are fully paid,
nonassessable and free of preemptive rights. Except as set forth herein, as of
the date hereof, there are no outstanding (i) shares of capital stock or other
voting securities of BTTA or BTTA Sub Co, (ii) securities of BTTA convertible
into or exchangeable for shares of capital stock or voting securities of BTTA or
BTTA Sub Co, (iii) options or other rights to acquire from BTTA or BTTA Sub Co
and, except as described in the BTTA SEC Reports (as defined below), no
obligations of BTTA or BTTA Sub Co to issue any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of BTTA or BTTA Sub Co, and (iv) equity equivalents, interests in the
ownership or earnings of BTTA or BTTA Sub Co or other similar rights
(collectively, “BTTA Securities”). As of the date hereof, except as set forth on
Schedule 2.2(a) of the BTTA Disclosure
Schedule there
are no outstanding obligations of BTTA or its subsidiaries to repurchase, redeem
or otherwise acquire any BTTA Securities or stockholder agreements, voting
trusts or other agreements or understandings to which BTTA is a party or by
which it is bound relating to the voting or registration of any shares of
capital stock of BTTA. For purposes of this Agreement, ‘‘Lien” means, with
respect to any asset (including, without limitation, any security) any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset.
(b) The
BTTA Shares constitute the only class of equity securities of BTTA registered
under the Exchange Act.
(c) Other
than its 100% ownership of BTTA Sub Co, BTTA does not own directly or indirectly
more than fifty percent (50%) of the outstanding voting securities or interests
(including membership interests) of any entity, other than as specifically
disclosed in the disclosure documents.
Section
2.3. Authority
Relative to this Agreement; Recommendation.
(a) BTTA
and BTTA Sub Co have all necessary corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby, have been duly and validly authorized by the
Board of Directors of BTTA (the “BTTA Board”) and the Board of Directors of BTTA
Sub Co and no other corporate proceedings on the part of BTTA or BTTA Sub Co are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby, except, as referred to in Section 2.3(b) and Section 2.17,
the approval and adoption of this Agreement by the holders of at least a
majority of the then outstanding BTTA Sub Co Shares, and the adoption of this
Agreement by the holders of at least a majority of the then outstanding BTTA
Shares. This Agreement has been duly and validly executed and delivered by BTTA
and BTTA Sub Co and constitutes a valid, legal and binding agreement of BTTA and
BTTA Sub Co, enforceable against BTTA and BTTA Sub Co in accordance with its
terms.
(b) The
BTTA Board has resolved to recommend that BTTA, the sole stockholder of BTTA Sub
Co, approve and adopt this Agreement. Additionally, the Board has resolved to
recommend that BTTA stockholders approve and adopt this Agreement, and the
actions required to be taken to effectuate the terms and conditions set forth in
this Agreement.
Section
2.4. SEC Reports;
Financial Statements.
(a) BTTA
has filed all required forms, reports and documents with the Securities and
Exchange Commission (the “SEC”) from the Company’s inception through the period
ended September 30, 2008, each of which has complied in all material respects
with all applicable requirements of the Securities Act of 1933, as amended (the
“Securities Act”), and the Exchange Act (and the rules and regulations
promulgated thereunder, respectively), each as in effect on the dates such
forms, reports and documents were filed. BTTA has heretofore delivered or
promptly will deliver prior to the Effective Date to V2P, in the form filed with
the SEC (including any
amendments
thereto but excluding any exhibits), (i) its Annual Report on Form 10-KSB for
the year ended December 31, 2007, (ii) its Quarterly Report on Form 10-Q for the
period ended September 30, 2008, (iii) all definitive proxy statements relating
to BTTA’s meetings of stockholders (whether annual or special) held since
December 31, 2007, if any, and (iv) all other reports or registration statements
filed by BTTA with the SEC since December 31, 2007. None of such BTTA
SEC Reports, including, without limitation, any financial statements or
schedules included or incorporated by reference therein, contained, when filed,
any untrue statement of a material fact or omitted to state a material fact
required to be stated or incorporated by reference therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading. The audited financial statements of BTTA included in
the BTTA SEC Reports fairly present, in conformity with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
in the notes thereto), the financial position of BTTA as of the dates thereof
and its results of operations and changes in financial position for the periods
then ended. All material agreements, contracts and other documents required to
be filed as exhibits to any of the BTTA SEC Reports have been so
filed.
(b) BTTA
has heretofore made available or promptly will make available to V2P a complete
and correct copy of any amendments or modifications which are required to be
filed with the SEC but have not yet been filed with the SEC, to agreements,
documents or other instruments which previously had been filed by BTTA with the
SEC pursuant to the Exchange Act.
Section
2.5. Information
Supplied. None of the information supplied or to be supplied by BTTA for
inclusion or incorporation by reference in connection with the Merger will at
the date filed with the SEC and made available to stockholders of BTTA, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
Section
2.6. Consents and
Approvals; No Violations. Except for filings, permits, authorizations,
consents and approvals as may be required under, and other applicable
requirements of, the Securities Act, the Exchange Act, state securities or blue
sky laws, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1916, as amended
(the ‘‘HSR Act’’), the rules of the Financial Industry Regulatory Authority
(“FINRA”), the filing and recordation of the Merger Certificate as required by
the NGCL, and as set forth on Schedule 2.6 of the BTTA Disclosure Schedule no
filing with or notice to, and no permit, authorization, consent or approval of,
any court or tribunal or administrative, governmental or regulatory body, agency
or authority (a “Governmental Entity”) is necessary for the execution and
delivery by BTTA and BTTA Sub Co of this Agreement or the consummation by BTTA
and BTTA Sub Co of the transactions contemplated hereby, except where the
failure to obtain such permits, authorizations, consents or approvals or to make
such filings or give such notice would not have a Material Adverse Effect on
BTTA or BTTA Sub Co.
Except as
set forth in Section 2.6 of the BTTA Disclosure Schedule, neither the execution,
delivery and performance of this Agreement by BTTA and BTTA Sub Co nor the
consummation by BTTA or BTTA Sub Co of the transactions contemplated hereby will
(i) conflict with or result in any breach of any provision of the respective
Articles of Incorporation or Bylaws (or similar governing documents) of BTTA or
BTTA Sub
Co, (ii) 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, amendment, cancellation or acceleration or Lien) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which BTTA is
a party or by which any of its properties or assets may be bound, or (iii)
violate any order, writ, injunction, decree, law, statute, rule or regulation
applicable to BTTA or any of its properties or assets, except in the case of
(ii) or (iii) for violations, breaches or defaults which would not have a
Material Adverse Effect on BTTA or BTTA Sub Co.
Section
2.7. No
Default. Except as set forth in Section 2.7 of the BTTA Disclosure
Schedule, neither BTTA nor BTTA Sub Co is in breach, default or violation (and
no event has occurred which with notice or the lapse of time or both would
constitute a breach, default or violation) of any term, condition or provision
of (i) its Articles of Incorporation or Bylaws (or similar governing documents),
(ii) any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which BTTA is now a party or by which any of
its respective properties or assets may be bound or (iii) any order, writ,
injunction, decree, law, statute, rule or regulation applicable to BTTA or any
of its respective properties or assets, except in the case of (ii) or (iii) for
violations, breaches or defaults that would not have a Material Adverse Effect
on BTTA or BTTA Sub Co. Except as set forth in Section 2.7 of the BTTA
Disclosure Schedule, each note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which BTTA is now a
party or by which its respective properties or assets may be bound that is
material to BTTA or BTTA Sub Co and that has not expired is in full force and
effect and is not subject to any material default thereunder of which BTTA or
BTTA Sub Co is aware by any party obligated to BTTA thereunder.
Section
2.8. No Undisclosed
Liabilities; Absence of Changes. Except as set forth in Section 2.8 of
the BTTA Disclosure Schedule and except as and to the extent publicly disclosed
by BTTA in the BTTA SEC Reports, as of September 30, 2008, BTTA does not have
any liabilities or obligations of any nature, whether or not accrued, contingent
or otherwise, that would be required by generally accepted accounting principles
to be reflected on a balance sheet of BTTA (including the notes thereto) or
which would have a Material Adverse Effect on BTTA. Except as publicly disclosed
by BTTA, since September 30, 2008, BTTA has not incurred any liabilities of any
nature, whether or not accrued, contingent or otherwise, which could reasonably
be expected to have, and there have been no events, changes or effects with
respect to BTTA having or which reasonably could be expected to have, a Material
Adverse Effect on BTTA. Except as and to the extent publicly disclosed by BTTA
in the BTTA SEC Reports and except as set forth in Section 2.8 of the BTTA
Disclosure Schedule, since September 30, 2008, there has not been (i) any
material change by BTTA in its accounting methods, principles or practices
(other than as required after the date hereof by concurrent changes in generally
accepted accounting principles), (ii) any revaluation by BTTA of any of its
assets having a Material Adverse Effect on BTTA, including, without limitation,
any write-down of the value of any assets other than in the ordinary course of
business or (iii) any other action or event that would have required the consent
of any other party hereto pursuant to Section 4.1 of this Agreement had such
action or event occurred after the date of this Agreement.
Section
2.9. Litigation. Except as
publicly disclosed by BTTA in the BTTA SEC Reports, there is no suit, claim,
action, proceeding or investigation pending or, to the knowledge of BTTA,
threatened against BTTA or any of its subsidiaries or any of their respective
properties or assets before any Governmental Entity which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect on
BTTA or could reasonably be expected to prevent or delay the consummation of the
transactions contemplated by this Agreement. Except as publicly disclosed by
BTTA in the BTTA SEC Reports, BTTA is not subject to any outstanding order,
writ, injunction or decree which, insofar as can be reasonably foreseen in the
future, could reasonably be expected to have a Material Adverse Effect on BTTA
or could reasonably be expected to prevent or delay the consummation of the
transactions contemplated hereby.
Section
2.10. Compliance with
Applicable Law. Except as publicly disclosed by BTTA in the BTTA SEC
Reports, BTTA and BTTA Sub Co hold all permits, licenses, variances, exemptions,
orders and approvals of all Governmental Entities necessary for the lawful
conduct of their respective businesses (the “BTTA Permits”), except for failures
to hold such permits, licenses, variances, exemptions, orders and approvals
which would not have a Material Adverse Effect on BTTA. Except as publicly
disclosed by BTTA in the BTTA SEC Reports, BTTA is in compliance with the terms
of the BTTA Permits, except where the failure to so comply would not have a
Material Adverse Effect on BTTA. Except as publicly disclosed by BTTA in the
BTTA SEC Reports, the business of BTTA is not being conducted in violation of
any law, ordinance or regulation of any Governmental Entity except that no
representation or warranty is made in this Section 2.10 with respect to
Environmental Laws (as defined in Section 2.12 below) and except for violations
or possible violations which do not, and, insofar as reasonably can be foreseen,
in the future will not, have a Material Adverse Effect on BTTA. Except as
publicly disclosed by BTTA in the BTTA SEC Reports, no investigation or review
by any Governmental Entity with respect to BTTA is pending or, to the knowledge
of BTTA, threatened, nor, to the knowledge of BTTA, has any Governmental Entity
indicated an intention to conduct the same, other than, in each case, those
which BTTA reasonably believes will not have a Material Adverse Effect on
BTTA.
Section
2.11. Employee Benefit
Plans; Labor Matters.
(a)
Except as set forth in Section 2.11(a) of the BTTA Disclosure Schedule with
respect to each employee benefit plan, program, policy, arrangement and contract
(including, without limitation, any “employee benefit plan,” as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), maintained or contributed to at any time by BTTA or any entity
required to be aggregated with BTTA pursuant to Section 414 of the Code (each, a
“BTTA Employee Plan”), no event has occurred and to the knowledge of BTTA, no
condition or set of circumstances exists in connection with which BTTA could
reasonably be expected to be subject to any liability which would have a
Material Adverse Effect on BTTA.
(b) (i)
No BTTA Employee Plan is or has been subject to Title IV of ERISA or Section 412
of the Code; and (ii) each BTTA Employee Plan intended to qualify under Section
401(a) of the Code and each trust intended to qualify under Section 501(a) of
the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such
determination.
(c)
Section 2.11(c) of the BTTA Disclosure Schedule sets forth a true and complete
list, as of the date of this Agreement, of each person who holds any BTTA Stock
Options, together with the number of BTTA Shares which are subject to such
option, the date of grant of such option, the extent to which such option is
vested (or will become vested as a result of the Merger), the option price of
such option (to the extent determined as of the date hereof), whether such
option is a nonqualified stock option or is intended to qualify as an incentive
stock option within the meaning of Section 422(b) of the Code, and the
expiration date of such option. Section 2.11(c) of the BTTA Disclosure Schedule
also sets forth the total number of such incentive stock options and such
nonqualified options. BTTA has furnished V2P with complete copies of the plans
pursuant to which the BTTA Stock Options were issued. Other than the automatic
vesting of BTTA Stock Options that may occur without any action on the part of
BTTA or its officers or directors, BTTA has not taken any action that would
result in any BTTA Stock Options that are unvested becoming vested in connection
with or as a result of the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
(d) BTTA
has made available to V2P (i) a description of the terms of employment and
compensation arrangements of all officers of BTTA and a copy of each such
agreement currently in effect; (ii) copies of all agreements with consultants
who are individuals obligating BTTA to make annual cash payments in an amount
exceeding $2,000; (iii) a schedule listing all officers of BTTA who have
executed a non-competition agreement with BTTA and a copy of each such agreement
currently in effect; (iv) copies (or descriptions) of all severance agreements,
programs and policies of BTTA with or relating to its employees, except programs
and policies required to be maintained by law; and (v) copies of all plans,
programs, agreements and other arrangements of BTTA with or relating to its
employees which contain change in control provisions all of which are set forth
in Section 2.11(d) of the BTTA Disclosure Schedule.
(e) There
shall be no payment, accrual of additional benefits, acceleration of payments,
or vesting in any benefit under any BTTA Employee Plan or any agreement or
arrangement disclosed under this Section 2.11 solely by reason of entering into
or in connection with the transactions contemplated by this
Agreement.
(f) There
are no controversies pending or, to the knowledge of BTTA, threatened, between
BTTA and any of their employees, which controversies have or could reasonably be
expected to have a Material Adverse Effect on BTTA. Neither BTTA nor any of its
subsidiaries is a party to any collective bargaining agreement or other labor
union contract applicable to persons employed by BTTA or any of its subsidiaries
(and neither BTTA nor any of its subsidiaries has any outstanding material
liability with respect to any terminated collective bargaining agreement or
labor union contract), nor does BTTA know of any activities or proceedings of
any labor union to organize any of its or its subsidiaries employees. BTTA has
no knowledge of any strike, slowdown, work stoppage, lockout or threat thereof,
by or with respect to any of its employees.
Section
2.12. Environmental
Laws and Regulations.
(a)
Except as publicly disclosed by BTTA in the BTTA SEC Reports, (i) BTTA is in
material compliance with all applicable federal, state, local and foreign laws
and regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) (collectively, “Environmental Laws”),
except for non-compliance that would not have a Material Adverse Effect on BTTA,
which compliance includes, but is not limited to, the possession by BTTA of all
material permits and other governmental authorizations required under applicable
Environmental Laws, and compliance with the terms and conditions thereof; (ii)
BTTA has not received written notice of, or, to the knowledge of BTTA, is the
subject of, any action, cause of action, claim, investigation, demand or notice
by any person or entity alleging liability under or non-compliance with any
Environmental Law (an “Environmental Claim”) that could reasonably be expected
to have a Material Adverse Effect on BTTA; and (iii) to the knowledge of BTTA,
there are no circumstances that are reasonably likely to prevent or interfere
with such material compliance in the future.
(b)
Except as publicly disclosed by BTTA, there are no Environmental Claims which
could reasonably be expected to have a Material Adverse Effect on BTTA that are
pending or, to the knowledge of BTTA, threatened against BTTA or, to the
knowledge of BTTA, against any person or entity whose liability for any
Environmental Claim BTTA has or may have retained or assumed either
contractually or by operation of law.
Section
2.13. Tax
Matters.
(a)
Except as set forth in Section 2.13 of the BTTA Disclosure Schedule: (i) BTTA
has filed or has had filed on its behalf in a timely manner (within any
applicable extension periods) with the appropriate Governmental Entity all
income and other material Tax Returns (as defined herein) with respect to Taxes
(as defined herein) of BTTA and all Tax Returns were in all material respects
true, complete and correct; (ii) all material Taxes with respect to BTTA have
been paid in full or have been provided for in accordance with GAAP on BTTA’s
most recent balance sheet which is part of the BTTA SEC Documents; (iii) there
are no outstanding agreements or waivers extending the statutory period of
limitations applicable to any federal, state, local or foreign income or other
material Tax Returns required to be filed by or with respect to BTTA; (iv) to
the knowledge of BTTA none of the Tax Returns of or with respect to BTTA is
currently being audited or examined by any Governmental Entity; and (v) no
deficiency for any income or other material Taxes has been assessed with respect
to BTTA which has not been abated or paid in full.
(b) For
purposes of this Agreement, (i) “Taxes” shall mean all taxes, charges, fees,
levies or other assessments, including, without limitation, income, gross
receipts, sales, use, ad valorem, goods and services, capital, transfer,
franchise, profits, license, withholding, payroll, employment, employer health,
excise, estimated, severance, stamp, occupation, property or other taxes,
customs duties, fees, assessments or charges of any kind whatsoever, together
with any interest and any penalties, additions to tax or additional amounts
imposed by any taxing authority and (ii)
“Tax Return” shall mean any report, return, documents declaration or other
information or filing required to be supplied to any taxing authority or
jurisdiction with respect to Taxes.
Section
2.14. Title to
Property. BTTA has good and defensible title to all of its properties and
assets, free and clear of all liens, charges and encumbrances except liens for
taxes not yet due and payable and such liens or other imperfections of title, if
any, as do not materially detract from the value of or interfere with the
present use of the property affected thereby or which, individually or in the
aggregate, would not have a Material Adverse Effect on BTTA; and, to BTTA’s
knowledge, all leases pursuant to which BTTA leases from others real or personal
property are in good standing, valid and effective in accordance with their
respective terms, and there is not, to the knowledge of BTTA, under any of such
leases, any existing material default or event of default (or event which with
the giving of notice or lapse of time, or both, would constitute a default and
in respect of which BTTA has not taken adequate steps to prevent such a default
from occurring) except where the lack of such good standing, validity and
effectiveness, or the existence of such default or event, would not have a
Material Adverse Effect on BTTA.
Section
2.15. Intellectual
Property.
(a) BTTA
owns, or possesses adequate licenses or other valid rights to use, all existing
United States and foreign patents, trademarks, trade names, service marks,
copyrights, trade secrets and applications therefore that are material to its
business as currently conducted (the “BTTA Intellectual Property
Rights”).
(b) The
validity of the BTTA Intellectual Property Rights and the title thereto of BTTA
is not being questioned in any litigation to which BTTA is a party.
(c)
Except as set forth in Section 2.15(c) of the BTTA Disclosure Schedule, the
conduct of the business of BTTA as now conducted does not, to BTTA’s knowledge,
infringe any valid patents, trademarks, trade names, service marks or copyrights
of others. The consummation of the transactions completed hereby will not result
in the loss or impairment of any BTTA Intellectual Property Rights.
(d) BTTA
has taken steps it believes appropriate to protect and maintain its trade
secrets as such, except in cases where BTTA has elected to rely on patent or
copyright protection in lieu of trade secret protection.
Section
2.16. Insurance. BTTA
currently does not maintain general liability and other business
insurance.
Section
2.17. Vote
Required. The affirmative vote of the holders of at least a majority of
the outstanding BTTA Sub Co Shares are the only vote of the holders of any class
or series of BTTA Sub Co’s capital stock and BTTA necessary to approve and adopt
this Agreement and the Merger.
Section
2.18. Tax
Treatment. Neither BTTA or BTTA Sub Co nor, to the knowledge of BTTA or
BTTA Sub Co, any of their affiliates have taken or agreed to take action that
would prevent
the Merger from constituting a reorganization qualifying under the provisions of
Section 368(a) of the Code.
Section
2.19. Affiliates. Except
for the directors and executive officers of BTTA, each of whom is listed in
Section 2.19 of the BTTA Disclosure Schedule, there are no persons who, to the
knowledge of BTTA, may be deemed to be affiliates of BTTA under Rule 1-02(b) of
Regulation S-X of the SEC (the “BTTA Affiliates”).
Section
2.20. Certain Business
Practices. None of BTTA or BTTA Sub Co or any directors, officers, agents
or employees of BTTA or BTTA Sub Co has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the Foreign Corrupt Practices Act of
1977, as amended (the “FCPA”), or (iii) made any other unlawful
payment.
Section
2.21. Insider
Interests. Except as set forth in Section 2.21 of the BTTA Disclosure
Schedule, no officer or director of BTTA has any interest in any material
property, real or personal, tangible or intangible, including without
limitation, any computer software or BTTA Intellectual Property Rights, used in
or pertaining to the business of BTTA, except for the ordinary rights of a
stockholder or employee stock option-holder.
Section
2.22. Opinion of
Financial Adviser. No financial adviser has been engaged to assist BTTA
in reference to this transaction, nor are there any fees or commissions
obligated to any third party.
Section
2.23. Brokers.
No broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of BTTA or BTTA Sub
Co.
Section
2.24. Disclosure. No
representation or warranty of BTTA or BTTA Sub Co in this Agreement or any
certificate, schedule, document or other instrument furnished or to be furnished
to V2P pursuant hereto or in connection herewith contains, as of the date of
such representation, warranty or instrument, or will contain any untrue
statement of a material fact or, at the date thereof, omits or will omit to
state a material fact necessary to make any statement herein or therein, in
light of the circumstances under which such statement is or will be made, not
misleading.
Section
2.25. No Existing
Discussions. As of the date hereof, BTTA is not engaged, directly or
indirectly, in any discussions or negotiations with any other party with respect
to any Third Party Acquisition (as defined in Section 4.4).
Section
2.26. Material
Contracts.
(a) BTTA
and BTTA Sub Co have delivered or otherwise made available to V2P true, correct
and complete copies of all contracts and agreements (and all amendments,
modifications
and
supplements thereto and all side letters to which either BTTA and BTTA Sub Co is
a party affecting the obligations of any party thereunder) to which either BTTA
or BTTA Sub Co is a party or by which any of their respective properties or
assets are bound that are, material to the business, properties or assets of
BTTA or BTTA Sub Co taken as a whole, including, without limitation, to the
extent any of the following are, individually or in the aggregate, material to
the business, properties or assets of BTTA or BTTA Sub Co taken as a whole, all:
(i) employment, product design or development, personal services, consulting,
non-competition, severance, golden parachute or indemnification contracts
(including, without limitation, any contract to which BTTA is a party involving
employees of BTTA); (ii) licensing, publishing, merchandising or distribution
agreements; (iii) contracts granting rights of first refusal or first
negotiation; (iv) partnership or joint venture agreements; (v) agreements for
the acquisition, sale or lease of material properties or assets or stock or
otherwise entered into since September 30, 2008; (vi) contracts or agreements
with any Governmental Entity; and (vii) all commitments and agreements to enter
into any of the foregoing (collectively, together with any such contracts
entered into in accordance with Section 4.1 hereof, the “BTTA Contracts”).
Neither BTTA nor BTTA Sub Co is a party to or bound by any severance, golden
parachute or other agreement with any employee or consultant pursuant to which
such person would be entitled to receive any additional compensation or an
accelerated payment of compensation as a result of the consummation of the
transactions contemplated hereby.
(b) Each
of the BTTA Contracts is valid and enforceable in accordance with its terms, and
there is no default, other than what has been previously disclosed in BTTA’s SEC
reports, under any BTTA Contract so listed either by BTTA or BTTA Sub Co or, to
the knowledge of BTTA or BTTA Sub Co, by any other party thereto, and no event
has occurred that with the lapse of time or the giving of notice or both would
constitute a default thereunder by BTTA or BTTA Sub Co or, to the knowledge of
BTTA or BTTA Sub Co, any other party, in any such case in which such default or
event could reasonably be expected to have a Material Adverse Effect on BTTA or
BTTA Sub Co.
(c) No
party to any such BTTA Contract has given notice to BTTA of or made a claim
against BTTA or BTTA Sub Co with respect to any breach or default thereunder,
other than what has been previously disclosed in BTTA’s SEC reports, in any such
case in which such breach or default could reasonably be expected to have a
Material Adverse Effect on BTTA or BTTA Sub Co.
ARTICLE
3
Representations
and Warranties of V2P
Except as
set forth on the Disclosure Schedule delivered by V2P to BTTA (the “V2P
Disclosure Schedule”), V2P hereby represents and warrants to BTTA as
follows:
Section
3.1. Organization and
Qualification.
(a) V2P
is duly organized, validly existing and will be in good standing under the laws
of the jurisdiction of its incorporation (Nevada) or organization prior to
Close, and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, except where the
failure to be so organized, existing and in good standing or to have such power
and authority would not
have a
Material Adverse Effect (as defined below) on V2P. When used in connection with
V2P, the term “Material Adverse Effect’’ means any change or effect (i) that is
or is reasonably likely to be materially adverse to the business, results of
operations, condition (financial or otherwise) or prospects of V2P, taken as a
whole, other than any change or effect arising out of general economic
conditions unrelated to any business in which V2P is engaged, or (ii) that may
impair the ability of V2P to consummate the transactions contemplated
hereby.
(b) V2P
has heretofore delivered to BTTA accurate and complete copies of the Articles of
Incorporation and Bylaws (or similar governing documents), as currently in
effect, of V2P. V2P is duly qualified or licensed and in good standing to do
business 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 or
licensing necessary except in such jurisdictions where the failure to be so duly
qualified or licensed and in good standing would not have a Material Adverse
Effect on V2P.
Section
3.2. Capitalization of
V2P.
(a) As of
the date of this Agreement, the authorized capital stock of V2P consists of; (i)
Two Hundred Fifty Million (250,000,000) V2P Common Shares, par value $0.001 per
share, of which, One Hundred and Six Million Four Hundred and Eighty Five
Thousand Five Hundred (106,485,500) common Shares were issued and were
outstanding; and, (ii) Fifty Million (50,000,000) V2P Preferred Shares, par
value $0.001 per share, of which no shares are issued or outstanding. All of the
outstanding V2P Shares have been duly authorized and validly issued, and are
fully paid, non-assessable and free of preemptive rights.
(b)
Except as set forth in Section 3.2(b) of the V2P Disclosure Schedule, between
December 1, 2008 and the date hereof, no shares of V2P’s capital stock have been
issued and no V2P Stock options have been granted. Except as set forth in
Section 3.2(a) above, as of the date hereof, there are no outstanding (i) shares
of capital stock or other voting securities of V2P, (ii) securities of V2P
convertible into or exchangeable for shares of capital stock or voting
securities of V2P, (iii) options or other rights to acquire from V2P, or
obligations of V2P to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of V2P,
or (iv) equity equivalents, interests in the ownership or earnings of V2P or
other similar rights (collectively, “V2P Securities”). As of the date hereof,
there are no outstanding obligations of V2P to repurchase, redeem or otherwise
acquire any V2P Securities. There are no stockholder agreements, voting trusts
or other agreements or understandings to which V2P is a party or by which it is
bound relating to the voting or registration of any shares of capital stock of
V2P.
(c)
Except as set forth in Section 3.2(c) of the V2P Disclosure Schedule, there are
no securities of V2P convertible into or exchangeable for, no options or other
rights to acquire from V2P, and no other contract, understanding, arrangement or
obligation (whether or not contingent) providing for the issuance or sale,
directly or indirectly, of any capital stock or other ownership interests in, or
any other securities of V2P.
(d) The
V2P Shares constitute the only class of equity securities of V2P.
(e)
Except as set forth in Section 3.2(e) of the V2P Disclosure Schedule, V2P does
not own directly or indirectly more than fifty percent (50%) of the outstanding
voting securities or interests (including membership interests) of any
entity.
Section
3.3. Authority
Relative to this Agreement; Recommendation.
(a) V2P
has all necessary corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of V2P (the “V2P Board”), and no other corporate proceedings on the
part of V2P are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby, except, as referred to in Section 3.17, the
approval and adoption of this Agreement by the holders of at least a majority of
the then outstanding V2P Shares. This Agreement has been duly and validly
executed and delivered by V2P and constitutes a valid, legal and binding
agreement of V2P, enforceable against V2P in accordance with its
terms.
(b) The
V2P Board has resolved to recommend that the stockholders of V2P approve and
adopt this Agreement.
Section
3.4. SEC Reports;
Financial Statements. V2P is not required to file forms, reports and
documents with the SEC.
Section
3.5. Information
Supplied. None of the information supplied or to be supplied by V2P for
inclusion or incorporation by reference to the 8-K will, at the time the 8-K is
filed with the SEC and at the time it becomes effective under the Securities
Act, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
Section
3.6. Consents and
Approvals; No Violations. Except as set forth in Section 3.6 of the V2P
Disclosure Schedule, and for filings, permits, authorizations, consents and
approvals as may be required under, and other applicable requirements of, the
Securities Act, the Exchange Act, state securities or blue sky laws, the HSR
Act, the rules of FINRA, and the filing and recordation of the Merger
Certificate as required by the NGCL, no filing with or notice to, and no permit,
authorization, consent or approval of, any Governmental Entity is necessary for
the execution and delivery by V2P of this Agreement or the consummation by V2P
of the transactions contemplated hereby, except where the failure to obtain such
permits, authorizations consents or approvals or to make such filings or give
such notice would not have a Material Adverse Effect on V2P.
Neither
the execution, delivery and performance of this Agreement by V2P nor the
consummation by V2P of the transactions contemplated hereby will (i) conflict
with or result in any breach of any provision of the Articles of Incorporation
or Bylaws (or similar governing documents) of V2P, (ii) 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, amendment, cancellation or acceleration or Lien) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
V2P is a party or by which it or any of its properties or assets may be bound or
(iii) violate any order, writ, injunction, decree, law, statute, rule or
regulation applicable to V2P or any of its properties or assets, except in the
case of (ii) or (iii) for violations, breaches or defaults which would not have
a Material Adverse Effect on V2P.
Section
3.7. No
Default. V2P is not in breach, default or violation (and no event has
occurred which with notice or the lapse of time or both would constitute a
breach, default or violation) of any term, condition or provision of (i) its
Articles of Incorporation or Bylaws (or similar governing documents), (ii) any
note, bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which V2P is now a party or by which it or any of
its properties or assets may be bound or (iii) any order, writ, injunction,
decree, law, statute, rule or regulation applicable to V2P, or any of its
properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults that would not have a Material Adverse Effect on V2P. Each
note, bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which V2P is now a party or by which it or any of
its properties or assets may be bound that is material to V2P taken as a whole
and that has not expired is in full force and effect and is not subject to any
material default thereunder of which V2P is aware by any party obligated to V2P
thereunder.
Section
3.8. No Undisclosed
Liabilities; Absence of Changes. Except as and to the extent disclosed by
V2P, V2P has not had any liabilities or obligations of any nature, whether or
not accrued, contingent or otherwise, that would be required by generally
accepted accounting principles to be reflected on a consolidated balance sheet
of V2P (including the notes thereto) or which would have a Material Adverse
Effect on V2P. Except as disclosed by V2P, V2P has not incurred any liabilities
of any nature, whether or not accrued, contingent or otherwise, which could
reasonably be expected to have, and there have been no events, changes or
effects with respect to V2P having or which could reasonably be expected to
have, a Material Adverse Effect on V2P. Except as and to the extent disclosed by
V2P there has not been (i) any material change by V2P in its accounting methods,
principles or practices (other than as required after the date hereof by
concurrent changes in generally accepted accounting principles), (ii) any
revaluation by V2P of any of its assets having a Material Adverse Effect on V2P,
including, without limitation, any write-down of the value of any assets other
than in the ordinary course of business or (iii) any other action or event that
would have required the consent of any other party hereto pursuant to Section
4.2 of this Agreement had such action or event occurred after the date of this
Agreement.
Section
3.9. Litigation. Except as
set forth in Schedule 3.9 of the V2P Disclosure Schedule there is no suit,
claim, action, proceeding or investigation pending or, to the knowledge of V2P,
threatened against V2P or any of its properties or assets before any
Governmental Entity which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect on V2P or could reasonably be
expected to prevent or delay the consummation of the transactions contemplated
by this Agreement. Except as disclosed by V2P, V2P is not subject to any
outstanding order, writ, injunction or decree which, insofar as can be
reasonably foreseen in the
future, could reasonably be expected to have a Material Adverse Effect on V2P or
could reasonably be expected to prevent or delay the consummation of the
transactions contemplated hereby.
Section
3.10. Compliance with
Applicable Law. Except as disclosed by V2P, V2P holds all permits,
licenses, variances, exemptions, orders and approvals of all Governmental
Entities necessary for the lawful conduct of its business (the “V2P Permits”),
except for failures to hold such permits, licenses, variances, exemptions,
orders and approvals which would not have a Material Adverse Effect on V2P.
Except as disclosed by V2P, V2P is in compliance with the terms of the V2P
Permits, except where the failure so to comply would not have a Material Adverse
Effect on V2P. Except as disclosed by V2P, the businesses of V2P is not being
conducted in violation of any law, ordinance or regulation of any Governmental
Entity except that no representation or warranty is made in this Section 3.10
with respect to Environmental Laws and except for violations or possible
violations which do not, and, insofar as reasonably can be foreseen, in the
future will not, have a Material Adverse Effect on V2P. Except as disclosed by
V2P no investigation or review by any Governmental Entity with respect to V2P is
pending or, to the knowledge of V2P, threatened, nor, to the knowledge of V2P,
has any Governmental Entity indicated an intention to conduct the same, other
than, in each case, those which V2P reasonably believes will not have a Material
Adverse Effect on V2P.
Section
3.11. Employee Benefit
Plans; Labor Matters.
(a) With
respect to each employee benefit plan, program, policy, arrangement and contract
(including, without limitation, any “employee benefit plan,” as defined in
Section 3(3) of ERISA), maintained or contributed to at any time by V2P or any
entity required to be aggregated with V2P pursuant to Section 414 of the Code
(each, a “V2P Employee Plan”), no event has occurred and, to the knowledge of
V2P, no condition or set of circumstances exists in connection with which V2P
could reasonably be expected to be subject to any liability which would have a
Material Adverse Effect on V2P.
(b) (i)
No V2P Employee Plan is or has been subject to Title IV of ERISA or Section 412
of the Code; and (ii) each V2P Employee Plan intended to qualify under Section
401(a) of the Code and each trust intended to qualify under Section 501(a) of
the Code is the subject of a favorable Internal Revenue Service determination
letter, and nothing has occurred which could reasonably be expected to adversely
affect such determination.
(c)
Section 3.11(c) of the V2P Disclosure Schedule sets forth a true and complete
list, as of the date of this Agreement, of each person who holds any V2P Stock
Options, together with the number of V2P Shares which are subject to such
option, the date of grant of such option, the extent to which such option is
vested (or will become vested as a result of the Merger), the option price of
such option (to the extent determined as of the date hereof), whether such
option is a nonqualified stock option or is intended to qualify as an incentive
stock option within the meaning of Section 422(b) of the Code, and the
expiration date of such option. Section 3.11(c) of the V2P Disclosure Schedule
also sets forth the total number of such incentive stock options and such
nonqualified options. V2P has furnished BTTA with complete copies of the plans
pursuant to which the V2P Stock Options were issued. Other than the automatic
vesting of V2P Stock Options that may occur without any action on the part of
V2P or its officers or directors, V2P has not taken any
action
that would result in any V2P Stock Options that are unvested becoming vested in
connection with or as a result of the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
(d) V2P
has made available to BTTA (i) a description of the terms of employment and
compensation arrangements of all officers of V2P and a copy of each such
agreement currently in effect; (ii) copies of all agreements with consultants
who are individuals obligating V2P to make annual cash payments in an amount
exceeding $60,000; (iii) a schedule listing all officers of V2P who have
executed a non-competition agreement with V2P and a copy of each such agreement
currently in effect; (iv) copies (or descriptions) of all severance agreements,
programs and policies of V2P with or relating to its employees, except programs
and policies required to be maintained by law; and (v) copies of all plans,
programs, agreements and other arrangements of the V2P with or relating to its
employees which contain change in control provisions.
(e)
Except as disclosed in Section 3.11(e) of the V2P Disclosure Schedule there
shall be no payment, accrual of additional benefits, acceleration of payments,
or vesting in any benefit under any V2P Employee Plan or any agreement or
arrangement disclosed under this Section 3.11 solely by reason of entering into
or in connection with the transactions contemplated by this
Agreement.
(f) There
are no controversies pending or, to the knowledge of V2P threatened, between V2P
and any of its employees, which controversies have or could reasonably be
expected to have a Material Adverse Effect on V2P. V2P is not a party to any
collective bargaining agreement or other labor union contract applicable to
persons employed by V2P (and V2P does not have any outstanding material
liability with respect to any terminated collective bargaining agreement or
labor union contract), nor does V2P know of any activities or proceedings of any
labor union to organize any of its or employees. V2P has no knowledge of any
strike, slowdown, work stoppage, lockout or threat thereof by or with respect to
any of its employees.
Section
3.12. Environmental
Laws and Regulations.
(a)
Except as disclosed by V2P, (i) V2P is in material compliance with all
Environmental Laws, except for non-compliance that would not have a Material
Adverse Effect on V2P, which compliance includes, but is not limited to, the
possession by V2P of all material permits and other governmental authorizations
required under applicable Environmental Laws, and compliance with the terms and
conditions thereof; (ii) V2P has not received written notice of, or, to the
knowledge of V2P, is the subject of, any Environmental Claim that could
reasonably be expected to have a Material Adverse Effect on V2P; and (iii) to
the knowledge of V2P, there are no circumstances that are reasonably likely to
prevent or interfere with such material compliance in the future.
(b)
Except as disclosed by V2P, there are no Environmental Claims which could
reasonably be expected to have a Material Adverse Effect on V2P that are pending
or, to the knowledge of V2P, threatened against V2P or, to the knowledge of V2P,
against any person or entity
whose liability for any Environmental Claim V2P has or may have retained or
assumed either contractually or by operation of law.
Section
3.13. Tax
Matters. Except as set forth in Section 3.13 of the V2P Disclosure
Schedule: (i) V2P has filed or has had filed on its behalf in a timely manner
(within any applicable extension periods) with the appropriate Governmental
Entity all income and other material Tax Returns with respect to Taxes of V2P
and all Tax Returns were in all material respects true, complete and correct;
(ii) all material Taxes with respect to V2P have been paid in full or have been
provided for in accordance with GAAP on V2P’s most recent balance sheet; (iii)
there are no outstanding agreements or waivers extending the statutory period of
limitations applicable to any federal, state, local or foreign income or other
material Tax Returns required to be filed by or with respect to V2P; (iv) to the
knowledge of V2P none of the Tax Returns of or with respect to V2P is currently
being audited or examined by any Governmental Entity; and (v) no deficiency for
any income or other material Taxes has been assessed with respect to V2P which
has not been abated or paid in full.
Section
3.14. Title to
Property. V2P has good and defensible title to all of its properties and
assets, free and clear of all liens, charges and encumbrances except liens for
taxes not yet due and payable and such liens or other imperfections of title, if
any, as do not materially detract from the value of or interfere with the
present use of the property affected thereby or which, individually or in the
aggregate, would not have a Material Adverse Effect on V2P; and, to V2P’s
knowledge, all leases pursuant to which V2P leases from others real or personal
property are in good standing, valid and effective in accordance with their
respective terms, and there is not, to the knowledge of V2P, under any of such
leases, any existing material default or event of default (or event which with
notice or lapse of time, or both, would constitute a material default and in
respect of which V2P has not taken adequate steps to prevent such a default from
occurring) except where the lack of such good standing, validity and
effectiveness, or the existence of such default or event of default would not
have a Material Adverse Effect on V2P.
Section
3.15. Intellectual
Property.
(a) V2P
owns, or possesses adequate licenses or other valid rights to use, all existing
United States and foreign patents, trademarks, trade names, services marks,
copyrights, trade secrets, and applications therefor that are material to its
business as currently conducted (the “V2P Intellectual Property
Rights”).
(b)
Except as set forth in Section 3.15(b) of the V2P Disclosure Schedule the
validity of the V2P Intellectual Property Rights and the title thereto of V2P,
as the case may be, is not being questioned in any litigation to which V2P is a
party.
(c) The
conduct of the business of V2P as now conducted does not, to V2P’s knowledge,
infringe any valid patents, trademarks, trade-names, service marks or copyrights
of others. The consummation of the transactions contemplated hereby will not
result in the loss or impairment of any V2P Intellectual Property
Rights.
(d) V2P
has taken steps it believes appropriate to protect and maintain its trade
secrets as such, except in cases where V2P has elected to rely on patent or
copyright protection in lieu of trade secret protection.
Section
3.16. Insurance. V2P
currently does not maintain general liability and other business
insurance.
Section
3.17. Vote
Required. The affirmative vote of the holders of at least a majority of
the outstanding V2P Shares is the only vote of the holders of any class or
series of V2P’s capital stock necessary to approve and adopt this Agreement and
the Merger.
Section
3.18. Tax
Treatment. Neither V2P nor, to the knowledge of V2P, any of its
affiliates has taken or agreed to take any action that would prevent the Merger
from constituting a reorganization qualifying under the provisions of Section
368(a) of the Code.
Section
3.19. Affiliates. Except
for the directors and executive officers of V2P, each of whom is listed in
Section 3.19 of the V2P Disclosure Schedule, there are no persons who, to the
knowledge of V2P, may be deemed to be affiliates of V2P under Rule 1-02(b) of
Regulation S-X of the SEC (the “V2P Affiliates”).
Section
3.20. Certain Business
Practices. None of V2P, or any of the V2P directors, officers, agents or
employees has (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, (ii)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns or violated
any provision of the FCPA, or (iii) made any other unlawful
payment.
Section
3.21. Insider
Interests. Except as set forth in Section 3.21 of the V2P Disclosure
Schedule, no officer or director of V2P has any interest in any material
property, real or personal, tangible or intangible, including without
limitation, any computer software or V2P Intellectual Property Rights, used in
or pertaining to the business of V2P, except for the ordinary rights of a
stockholder or employee stock option holder.
Section
3.22. Opinion of
Financial Adviser. No financial adviser has been engaged to assist V2P in
reference to this transaction, nor are there any fees or commissions obligated
to any third party.
Section
3.23. Brokers.
No broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of V2P.
Section
3.24. Disclosure. No
representation or warranty of V2P in this Agreement or any certificate,
schedule, document or other instrument furnished or to be furnished to BTTA
pursuant hereto or in connection herewith contains, as of the date of such
representation, warranty or instrument, or will contain any untrue statement of
a material fact or, at the date thereof, omits or will omit to state a material
fact necessary to make any statement herein or therein,
in light of the circumstances under which such statement is or will be made, not
misleading.
Section
3.25. No Existing
Discussions. As of the date hereof, V2P is not engaged, directly or
indirectly, in any discussions or negotiations with any other party with respect
to any Third Party Acquisition (as defined in Section 4.4).
Section
3.26. Material
Contracts.
(a) V2P
has delivered or otherwise made available to BTTA true, correct and complete
copies of all contracts and agreements (and all amendments, modifications and
supplements thereto and all side letters to which V2P is a party affecting the
obligations of any party thereunder) to which V2P is a party or by which any of
its properties or assets are bound that are, material to the business,
properties or assets of V2P taken as a whole, including, without limitation, to
the extent any of the following are, individually or in the aggregate, material
to the business, properties or assets of V2P taken as a whole, all: (i)
employment, product design or development, personal services, consulting,
non-competition, severance, golden parachute or indemnification contracts
(including, without limitation, any contract to which V2P is a party involving
employees of V2P); (ii) licensing, publishing, merchandising or distribution
agreements; (iii) contracts granting rights of first refusal or first
negotiation; (iv) partnership or joint venture agreements; (v) agreements for
the acquisition, sale or lease of material properties or assets or stock or
otherwise. (vi) contracts or agreements with any Governmental Entity; and (vii)
all commitments and agreements to enter into any of the foregoing (collectively,
together with any such contracts entered into in accordance with Section 5.2
hereof, the “V2P Contracts”). V2P is not a party to or bound by any severance,
golden parachute or other agreement with any employee or consultant pursuant to
which such person would be entitled to receive any additional compensation or an
accelerated payment of compensation as a result of the consummation of the
transactions contemplated hereby.
(b) Each
of the V2P Contracts is valid and enforceable in accordance with its terms, and
there is no default under any V2P Contract so listed either by V2P or, to the
knowledge of V2P, by any other party thereto, and no event has occurred that
with the lapse of time or the giving of notice or both would constitute a
default thereunder by V2P or, to the knowledge of V2P, any other party, in any
such case in which such default or event could reasonably be expected to have a
Material Adverse Effect on V2P.
(c) No
party to any such V2P Contract has given notice to V2P of or made a claim
against V2P with respect to any breach or default thereunder, in any such case
in which such breach or default could reasonably be expected to have a Material
Adverse Effect on V2P.
ARTICLE
4
Covenants
Section
4.1. Conduct of
Business of BTTA. Except as contemplated by this Agreement or as
described in Section 4.1 of the BTTA Disclosure Schedule, during the period from
the date hereof to the Effective Time, BTTA will conduct its operations in the
ordinary course of business consistent with past practice and, to the extent
consistent therewith, with no less diligence and effort than would be applied in
the absence of this Agreement, seek to preserve intact its current business
organization, keep available the service of its current officers and employees
and preserve its relationships with customers, suppliers and others having
business dealings with it to the end that goodwill and ongoing businesses shall
be unimpaired at the Effective Time. Without limiting the generality of the
foregoing, except as otherwise expressly provided in this Agreement or as
described in Section 4.1 of the BTTA Disclosure Schedule, prior to the Effective
Time, BTTA will not, without the prior written consent of V2P:
(a) amend
its Articles of Incorporation or Bylaws (or other similar governing
instrument);
(b) amend
the terms of any stock of any class or any other securities (except bank loans)
or equity equivalents.
(c)
split, combine or reclassify any shares of its capital stock, declare, set aside
or pay any dividend or other distribution (whether in cash, stock or property or
any combination thereof) in respect of its capital stock, make any other actual,
constructive or deemed distribution in respect of its capital stock or otherwise
make any payments to stockholders in their capacity as such, or redeem or
otherwise acquire any of its securities; except as set forth
herein;
(d) adopt
a plan of complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization of BTTA (other than the
Merger);
(e) (i)
incur or assume any long-term or short-term debt or issue any debt securities
except for borrowings or issuances of letters of credit under existing lines of
credit in the ordinary course of business; (ii) assume, guarantee, endorse or
otherwise become liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other person; (iii) make any loans,
advances or capital contributions to, or investments in, any other person; (iv)
pledge or otherwise encumber shares of capital stock of BTTA; or (v) mortgage or
pledge any of its material assets, tangible or intangible, or create or suffer
to exist any material Lien thereupon (other than tax Liens for taxes not yet
due);
(f)
except as may be required by law, enter into, adopt, amend or terminate any
bonus, profit sharing, compensation, severance, termination, stock option, stock
appreciation right, restricted stock, performance unit, stock equivalent, stock
purchase agreement, pension, retirement, deferred compensation, employment,
severance or other employee benefit agreement, trust, plan, fund or other
arrangement for the benefit or welfare of any director, officer or employee in
any manner, or increase in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not required by any plan and
arrangement as in effect as of the date hereof (including, without limitation,
the granting of stock appreciation rights or performance units); provided,
however, that this paragraph (f) shall not prevent BTTA from (i) entering into
employment agreements or severance agreements with employees in the ordinary
course of business and consistent with past practice or (ii) increasing annual
compensation and/or providing for or
amending
bonus arrangements for employees for fiscal 2008 in the ordinary course of
year-end compensation reviews consistent with past practice and paying bonuses
to employees for fiscal 2008 in amounts previously disclosed to V2P (to the
extent that such compensation increases and new or amended bonus arrangements do
not result in a material increase in benefits or compensation expense to
BTTA);
(g)
acquire, sell, lease or dispose of any assets in any single transaction or
series of related transactions (other than in the ordinary course of business or
as a result of the Closing Conditions of this Merger Agreement that have been
described in the agreement);
(h)
except as may be required as a result of a change in law or in generally
accepted accounting principles, change any of the accounting principles or
practices used by it;
(i)
revalue in any material respect any of its assets including, without limitation,
writing down the value of inventory or writing off notes or accounts receivable
other than in the ordinary course of business;
(j) (i)
acquire (by merger, consolidation, or acquisition of stock or assets) any
corporation, partnership or other business organization or division thereof or
any equity interest therein; (ii) enter into any contract or agreement other
than in the ordinary course of business consistent with past practice which
would be material to BTTA; (iii) authorize any new capital expenditure or
expenditures which, individually is in excess of $1,000 or, in the aggregate,
are in excess of $5,000; provided, however that none of the foregoing shall
limit any capital expenditure required pursuant to existing
contracts;
(k) make
any tax election or settle or compromise any income tax liability material to
BTTA;
(l)
settle or compromise any pending or threatened suit, action or claim which (i)
relates to the transactions contemplated hereby beyond those described as
Closing Conditions to this agreement, or (ii) the settlement or compromise of
which could have a Material Adverse Effect on BTTA;
(m)
commence any material research and development project or terminate any material
research and development project that is currently ongoing, in either case,
except pursuant to the terms of existing contracts or in the ordinary course of
business; or
(n) take,
or agree in writing or otherwise to take, any of the actions described in
Sections 4.1(a) through 4.1(m) or any action which would make any of the
representations or warranties of BTTA contained in this Agreement untrue or
incorrect.
Section
4.2. Conduct of
Business of V2P. Except as contemplated by this Agreement or as described
in Section 4.2 of the V2P Disclosure Schedule during the period from the date
hereof to the Effective Time, V2P will conduct its operations in the ordinary
course of business consistent with past practice and, to the extent consistent
therewith, with no less diligence and effort than would be applied in the
absence of this Agreement, seek to preserve intact its current business
organization, keep available the service of its current officers and employees
and preserve its relationships with customers, suppliers and others having
business
dealings with it to the end that goodwill and ongoing business shall be
unimpaired at the Effective Time. Without limiting the generality of the
foregoing, except as otherwise expressly provided in this Agreement or as
described in Section 4.2 of the V2P Disclosure Schedule, prior to the Effective
Time, V2P will not, without the prior written consent of BTTA:
(a) amend
its Articles of Incorporation or Bylaws (or other similar governing
instrument);
(b)
authorize for issuance, issue, sell, deliver or agree or commit to issue, sell
or deliver (whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise) any stock of any
class or any other securities (except bank loans) or equity equivalents
(including, without limitation, any stock options or stock appreciation
rights;
(c)
split, combine or reclassify any shares of its capital stock, declare, set aside
or pay any dividend or other distribution (whether in cash, stock or property or
any combination thereof) in respect of its capital stock, make any other actual,
constructive or deemed distribution in respect of its capital stock or otherwise
make any payments to stockholders in their capacity as such, or redeem or
otherwise acquire any of its securities;
(d) adopt
a plan of complete or partial liquidation, dissolution, merger consolidation,
restructuring, re-capitalization or other reorganization of V2P (other than the
Merger);
(e) (i)
incur or assume any long-term or short-term debt or issue any debt securities
except for borrowings or issuances of letters of credit under existing lines of
credit in the ordinary course of business. (ii) assume, guarantee, endorse or
otherwise become liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other person; (iii) make any loans,
advances or capital contributions to or investments in, any other person; (iv)
pledge or otherwise encumber shares of capital stock of V2P; or (v) mortgage or
pledge any of its material assets, tangible or intangible, or create or suffer
to exist any material Lien thereupon (other than tax Liens for taxes not yet
due);
(f)
except as may be required by law, enter into, adopt, amend or terminate any
bonus, profit sharing, compensation, severance, termination, stock option, stock
appreciation right, restricted stock, performance unit stock equivalent, stock
purchase agreement, pension, retirement, deferred compensation, employment,
severance or other employee benefit agreement, trust, plan, fund or other
arrangement for the benefit or welfare of any director, officer or employee in
any manner, or increase in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not required by any plan and
arrangement as in effect as of the date hereof (including, without limitation,
the granting of stock appreciation rights or performance units); provided,
however, that this paragraph (f) shall not prevent V2P from (i) entering into
employment agreements or severance agreements with employees in the ordinary
course of business and consistent with past practice or (ii) increasing annual
compensation and/or providing for or amending bonus arrangements for employees
for fiscal 2008 in the ordinary course of year-end compensation reviews
consistent with past practice and paying bonuses to employees for fiscal 2008 in
amounts
previously
disclosed to BTTA (to the extent that such compensation increases and new or
amended bonus arrangements do not result in a material increase in benefits or
compensation expense to V2P);
(g)
acquire, sell, lease or dispose of any assets in any single transaction or
series of related transactions other than in the ordinary course of
business;
(h)
except as may be required as a result of a change in law or in generally
accepted accounting principles, change any of the accounting principles or
practices used by it;
(i)
revalue in any material respect any of its assets, including, without
limitation, writing down the value of inventory or writing off notes or accounts
receivable other than in the ordinary course of business;
(j) (i)
acquire (by merger, consolidation, or acquisition of stock or assets) any
corporation, partnership, or other business organization or division thereof or
any equity interest therein; (ii) enter into any contract or agreement other
than in the ordinary course of business consistent with past practice which
would be material to V2P; (iii) authorize any new capital expenditure or
expenditures which, individually, is in excess of $1,000 or, in the aggregate,
are in excess of $5,000; provided, however that none of the foregoing shall
limit any capital expenditure required pursuant to existing
contracts;
(k) make
any tax election or settle or compromise any income tax liability material to
V2P;
(l)
settle or compromise any pending or threatened suit, action or claim which (i)
relates to the transactions contemplated hereby or (ii) the settlement or
compromise of which could have a Material Adverse Effect on V2P;
(m)
commence any material research and development project or terminate any material
research and development project that is currently ongoing, in either case,
except pursuant to the terms of existing contracts or except in the ordinary
course of business; or
(n) take,
or agree in writing or otherwise to take, any of the actions described in
Sections 4.2(a) through 4.2(m) or any action which would make any of the
representations or warranties of V2P contained in this Agreement untrue or
incorrect.
Section
4.3. Preparation of
8-K. V2P and BTTA shall promptly prepare and file with the SEC a Current
Report on Form 8-K within four (4) days of the Effective Time of this Agreement
disclosing the Merger, if required by counsel.
Section
4.4. Other Potential
Acquirers.
(a) V2P
and BTTA, and their respective affiliates, officers, directors, employees,
representatives and agents shall immediately cease any existing discussions or
negotiations, if any, with any parties conducted heretofore with respect to any
Third Party Acquisition.
Section 4.5. Meetings of
Stockholders. V2P shall take all actions necessary, in accordance with
the respective General Corporation Law of its respective state, and its
respective articles of incorporation and bylaws, to duly call, give notice of,
convene and hold a meeting of its stockholders, or receive a written majority
consent of its respective stockholders, as promptly as practicable, to consider
and vote upon the adoption and approval of this Agreement and the transactions
contemplated hereby. The stockholder votes required for the adoption and
approval of the transactions contemplated by this Agreement shall be the vote
required by the NGCL and its charter and bylaws, in the case of BTTA Sub Co and
the General Corporation Law of its respective state, and its charter and bylaws,
in the case of V2P. BTTA Sub Co and V2P will, through their respective Boards of
Directors, recommend to their respective stockholders approval of such matters.
It is not anticipated that BTTA will require a stockholder meeting for approval
of this Agreement. It is contemplated that the Merger will be
effectuate pursuant to Section 92A.130 of the Nevada Revised Statutes, which
specifically provides that the approval of the Agreement by BTTA stockholders is
not required to consummate the transactions contemplated hereby.
Section
4.6. FINRA OTC:BB Listing. The
parties shall use all reasonable efforts to continue to cause the BTTA Shares,
subject to Rule 144, to be traded on the Over-the-Counter Bulletin
Board.
Section
4.7. Access to
Information.
(a)
Between the date hereof and the Effective Time, BTTA will give V2P and its
authorized representatives, and V2P will give BTTA and its authorized
representatives, reasonable access to all employees, plants, offices, warehouses
and other facilities and to all books and records of itself and its
subsidiaries, will permit the other party to make such inspections as such party
may reasonably require and will cause its officers and those of its subsidiaries
to furnish the other party with such financial and operating data and other
information with respect to the business and properties of itself and its
subsidiaries as the other party may from time to time reasonably
request.
(b)
Between the date hereof and the Effective Time, BTTA shall make available to
V2P, and V2P will make available to BTTA, within 25 business days after the end
of each quarter, quarterly statements prepared by such party (in conformity with
its past practices) as of the last day of the period then ended.
(c) Each
of the parties hereto will hold and will cause its consultants and advisers to
hold in confidence all documents and information furnished to it in connection
with the transactions contemplated by this Agreement.
Section
4.8. Additional
Agreements, Reasonable Efforts. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things reasonably necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement, including, without limitation, (i) cooperating in the
preparation and filing of the 8-K, any filings that may be required under the
HSR Act, and any amendments to any thereof; (ii) obtaining consents of all third
parties
and
Governmental Entities necessary, proper or advisable for the consummation of the
transactions contemplated by this Agreement; (iii) contesting any legal
proceeding relating to the Merger and (iv) the execution of any additional
instruments necessary to consummate the transactions contemplated hereby.
Subject to the terms and conditions of this Agreement, V2P, BTTA Sub Co and BTTA
agree to use all reasonable efforts to cause the Effective Time to occur as soon
as practicable after the V2P and BTTA Sub Co stockholder votes with respect to
the Merger. In case at any time after the Effective Time any further action is
necessary to carry out the purposes of this Agreement, the proper officers and
directors of each party hereto shall take all such necessary
action.
Section
4.9. Employee
Benefits; Stock Option and Employee Purchase Plans. It is the parties’
present intent to provide after the Effective Time to employees of V2P employee
benefit plans (other than stock option or other plans involving the potential
issuance of securities of BTTA) which, in the aggregate, are not less favorable
than those currently provided by V2P. Notwithstanding the foregoing, nothing
contained herein shall be construed as requiring the parties to continue any
specific employee benefit plans.
Section
4.10. Public
Announcements. V2P and BTTA will consult with one another before issuing
any press release or otherwise making any public statements with respect to the
transactions contemplated by this Agreement, including, without limitation, the
Merger, and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by applicable
law or by obligations pursuant to any quotation requirements with FINRA
Over-the-Counter Bulletin Board (OTC:BB) as determined by V2P or
BTTA.
Section
4.11. Indemnification.
(a) To
the extent, if any, not provided by an existing right under one of the parties’
directors and officers liability insurance policies, from and after the
Effective Time, BTTA and BTTA Sub Co shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each person who is now, or
has been at any time prior to the date hereof, or who becomes prior to the
Effective Time, a director, officer or employee of the parties hereto or any
subsidiary thereof (each an “Indemnified Party” and, collectively, the
‘‘Indemnified Parties”) against all losses, expenses (including reasonable
attorneys’ fees and expenses), claims, damages or liabilities or, subject to the
proviso of the next succeeding sentence, amounts paid in settlement arising out
of actions or omissions occurring at or prior to the Effective Time and whether
asserted or claimed prior to, at or after the Effective Time) that are in whole
or in part (i) based on, or arising out of the fact that such person is or was a
director, officer or employee of such party or a subsidiary of such party or
(ii) based on, arising out of or pertaining to the transactions contemplated by
this Agreement. In the event of any such loss expense, claim, damage or
liability (whether or not arising before the Effective Time), (i) BTTA shall pay
the reasonable fees and expenses of counsel selected by the Indemnified Parties,
which counsel shall be reasonably satisfactory to BTTA, promptly after
statements therefor are received and otherwise advance to such Indemnified Party
upon request reimbursement of documented expenses reasonably incurred, in either
case to the extent not prohibited by the NGCL or its certificate of
incorporation or bylaws, (ii) BTTA will cooperate in the defense of any such
matter and (iii) any determination required to be made with respect to whether
an Indemnified Party’s conduct complies with the
standards
set forth under the NGCL and BTTA’s certificate of incorporation or bylaws shall
be made by independent counsel mutually acceptable to BTTA and the Indemnified
Party; provided, however, that BTTA shall not be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld). The Indemnified Parties as a group may retain only one law firm with
respect to each related matter except to the extent there is, in the opinion of
counsel to an Indemnified Party, under applicable standards of professional
conduct, conflict on any significant issue between positions of any two or more
Indemnified Parties.
(b)
In the event BTTA or any of its successors or assigns (i) consolidates with or
merges into any other person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or (ii) transfers all or
substantially all of its properties and assets to any person, then and in either
such case, proper provision shall be made so that the successors and assigns of
BTTA shall assume the obligations set forth in this Section 4.11.
(c) To
the fullest extent permitted by law, from and after the Effective Time, all
rights to indemnification now existing in favor of the employees, agents,
directors or officers of BTTA and V2P and their subsidiaries with respect to
their activities as such prior to the Effective Time, as provided in BTTA’s and
V2P’s certificate of incorporation or bylaws, in effect on the date thereof or
otherwise in effect on the date hereof, shall survive the Merger and shall
continue in full force and effect for a period of not less than six years from
the Effective Time.
(d) The
provisions of this Section 4.11 are intended to be for the benefit of, and shall
be enforceable by, each Indemnified Party, his or her heirs and his or her
representatives.
Section
4.12. Notification of
Certain Matters. The parties hereto shall give prompt notice to the other
parties, of (i) the occurrence or nonoccurrence of any event the occurrence or
nonoccurrence of which would be likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at or prior to the Effective Time, (ii) any material failure of such party to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder, (iii) any notice of, or other communication
relating to, a default or event which, with notice or lapse of time or both,
would become a default, received by such party or any of its subsidiaries
subsequent to the date of this Agreement and prior to the Effective Time, under
any contract or agreement material to the financial condition, properties,
businesses or results of operations of such party and its subsidiaries taken as
a whole to which such party or any of its subsidiaries is a party or is subject,
(iv) any notice or other communication from any third party alleging that the
consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement, or (v) any material adverse change
in their respective financial condition, properties, businesses, results of
operations or prospects taken as a whole, other than changes resulting from
general economic conditions; provided, however, that the delivery of any notice
pursuant to this Section 4.12 shall not cure such breach or non-compliance or
limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
ARTICLE
5
Conditions
to Consummation of the Merger
Section
5.1. Conditions to
Each Party’s Obligations to Effect the Merger. The respective obligations
of each party hereto to effect the Merger are subject to the satisfaction at or
prior to the Effective Time of the following conditions:
(a) this
Agreement shall have been approved and adopted by the requisite vote of the
stockholders of BTTA Sub Co and V2P;
(b) this
Agreement shall have been approved and adopted by the Board of Directors of
BTTA, BTTA Sub Co and V2P;
(c) no
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or enforced by any United States court
or United States governmental authority which prohibits, restrains, enjoins or
restricts the consummation of the Merger;
(d) any
waiting period applicable to the Merger under the HSR Act shall have terminated
or expired, and any other governmental or regulatory notices or approvals
required with respect to the transactions contemplated hereby shall have been
either filed or received; and
(e) the
audited financial statements of V2P, prepared pursuant to Regulation S-X shall
be completed and presented to BTTA for filing with an Amended Form 8-K, as
required by Item 2.01 and Item 9.01 of Form 8-K.
Section
5.2. Conditions to the
Obligations of BTTA and BTTA Sub Co. The obligation of BTTA and BTTA Sub
Co to effect the Merger is subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) the
representations of V2P contained in this Agreement or in any other document
delivered pursuant hereto shall be true and correct (except to the extent that
the breach thereof would not have a Material Adverse Effect on V2P) at and as of
the Effective Time with the same effect as if made at and as of the Effective
Time (except to the extent such representations specifically related to an
earlier date, in which case such representations shall be true and correct as of
such earlier date), and at the Closing V2P shall have delivered to BTTA a
certificate to that effect;
(b) each
of the covenants and obligations of V2P to be performed at or before the
Effective Time pursuant to the terms of this Agreement shall have been duly
performed in all material respects at or before the Effective Time and at the
Closing V2P shall have delivered to BTTA a certificate to that
effect;
(c)
V2P shall have obtained the consent or approval of each person whose consent or
approval shall be required in order to permit the Merger as relates to any
obligation, right or interest of V2P under any loan or credit agreement, note,
mortgage, indenture, lease or other agreement or instrument, except those for
which failure to obtain such consents and approvals would not, in the reasonable
opinion of BTTA, individually or in the aggregate, have a Material Adverse
Effect on V2P;
(d) V2P
shall have obtained the cancellation of all options, warrants, or other
agreements relating to the right to receive securities of V2P, except as such
rights are set forth in the V2P schedules as attached hereto; and
(e) there
shall have been no events, changes or effects with respect to V2P having or
which could reasonably be expected to have a Material Adverse Effect on
V2P.
Section
5.3. Conditions to the
Obligations of V2P. The respective obligations of V2P to effect the
Merger are subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) the
representations of BTTA and BTTA Sub Co contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect on
BTTA) at and as of the Effective Time with the same effect as if made at and as
of the Effective Time (except to the extent such representations specifically
related to an earlier date, in which case such representations shall be true and
correct as of such earlier date), and at the Closing BTTA shall have delivered
to V2P a certificate to that effect;
(b) each
of the covenants and obligations of BTTA to be performed at or before the
Effective Time pursuant to the terms of this Agreement shall have been duly
performed in all material respects at or before the Effective Time and at the
Closing BTTA shall have delivered to V2P a certificate to that
effect;
(c) BTTA
shall have caused a 10:1 forward split of its commons shares, and taken such
action as is required to notify the applicable authorities;
(d) BTTA
shall have obtained a written Termination Agreement from Xxxxxxx Xxxxxx,
President and CEO of BTTA, and a cancellation of 750,000 shares of common stock
held by Xx. Xxxxxx pursuant to the terms and conditions of the Termination
Agreement; and
(e) there
shall have been no events, changes or effects with respect to BTTA having or
which could reasonably be expected to have a Material Adverse Effect on
BTTA.
ARTICLE
6
Termination;
Amendment; Waiver
Section
6.1. Termination. This
Agreement may be terminated and the Merger may be abandoned at any time prior to
the Effective Time, whether before or after approval and adoption of this
Agreement by BTTA Sub Co’s or V2P’s stockholders:
(a) by
mutual written consent of BTTA and V2P;
(b) by
V2P or BTTA if (i) any court of competent jurisdiction in the United States or
other United States Governmental Entity shall have issued a final order, decree
or ruling or taken any other final action restraining, enjoining or otherwise
prohibiting the Merger and such order, decree, ruling or other action is or
shall have become non-appealable or (ii) the Merger has not been consummated by
; provided, however, that no party may terminate this Agreement pursuant to this
clause (ii) if such party’s failure to fulfill any of its obligations under this
Agreement shall have been the reason that the Effective Time shall not have
occurred on or before said date;
(c) by
BTTA if (i) there shall have been a breach of any representation or warranty on
the part of V2P set forth in this Agreement, or if any representation or
warranty of V2P shall have become untrue, in either case such that the
conditions set forth in Section 5.2(a) would be incapable of being satisfied by
January 30th 2009
(or as otherwise extended), (ii) there shall have been a breach by V2P of any of
their respective covenants or agreements hereunder having a Material Adverse
Effect on V2P or materially adversely affecting (or materially delaying) the
consummation of the Merger, and V2P, as the case may be, has not cured such
breach within 20 business days after notice by BTTA thereof, provided that BTTA
has not breached any of its obligations hereunder, (iii) V2P shall have failed
to acquire the cancellation of any options, warrants, except as set forth in the
disclosure schedule; and (iv) the accrued salaries as set forth in the V2P
balance sheet as reflected on December 29, 2008 shall not have been
converted into the right to receive common shares of V2P prior to the Effective
Time.
(d) by
V2P if (i) there shall have been a breach of any representation or warranty on
the part of BTTA or BTTA Sub Co set forth in this Agreement, or if any
representation or warranty of BTTA or BTTA Sub Co shall have become untrue, in
either case such that the conditions set forth in Section 5.3(a) would be
incapable of being satisfied by January 15, 2008 (or as otherwise extended),
(ii) there shall have been a breach by BTTA or BTTA Sub Co of its covenants or
agreements hereunder having a Material Adverse Effect on BTTA or materially
adversely affecting (or materially delaying) the consummation of the Merger, and
BTTA, as the case may be, has not cured such breach within twenty business days
after notice by V2P thereof, provided that V2P has not breached any of its
obligations hereunder, (iii) the BTTA Board shall have recommended to BTTA Sub
Co’s stockholders a Superior Proposal, (iv) the BTTA Board shall have withdrawn,
modified or changed its approval or recommendation of this Agreement or the
Merger or shall have failed to call, give notice of, convene or hold a
stockholders’ meeting to vote upon the Merger, or shall have adopted any
resolution to effect any of the foregoing, (v) V2P shall have failed to obtain
the requisite vote of its stockholders or (vi) BTTA Sub Co shall have failed to
obtain the requisite vote of its stockholders.
Section
6.2. Effect of
Termination. In the event of the termination and abandonment of this
Agreement pursuant to Section 6.1, this Agreement shall forthwith become void
and have no effect, without any liability on the part of any party hereto or its
affiliates, directors, officers or stockholders, other than the provisions of
this Section 6.2 and Sections 4.7(c) and 6.3 hereof. Nothing contained in this
Section 6.2 shall relieve any party from liability for any breach of this
Agreement.
Section
6.3. Fees and
Expenses. Each party shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby.
Section
6.4. Amendment.
This Agreement may be amended by action taken by BTTA, BTTA Sub Co and V2P at
any time before or after approval of the Merger by the stockholders of BTTA Sub
Co and V2P (if required by applicable law) but, after any such approval, no
amendment shall be made which requires the approval of such stockholders under
applicable law without such approval. This Agreement may not be amended except
by an instrument in writing signed on behalf of the parties hereto.
Section
6.5. Extension;
Waiver. At any time prior to the Effective Time, each party hereto may
(i) extend the time for the performance of any of the obligations or other acts
of any other party, (ii) waive any inaccuracies in the representations and
warranties of any other party contained herein or in any document, certificate
or writing delivered pursuant hereto or (iii) waive compliance by any other
party with any of the agreements or conditions contained herein. Any agreement
on the part of any party hereto to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party.
The failure of any party hereto to assert any of its rights hereunder shall not
constitute a waiver of such rights.
Section 6.6 Return of
16,000,000 shares of BTTA issued pursuant to paragraph 5.3 (d)
above.
ARTICLE
7
Miscellaneous
Section
7.1. Nonsurvival of
Representations and Warranties. The representations and warranties made
herein shall not survive beyond the Effective Time or a termination of this
Agreement. This Section 7.1 shall not limit any covenant or agreement of the
parties hereto which by its terms requires performance after the Effective
Time.
Section
7.2. Entire Agreement;
Assignment. This Agreement (a) constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
other prior agreements and understandings both written and oral, between the
parties with respect to the subject matter hereof and (b) shall not be assigned
by operation of law or otherwise.
Section
7.3. Validity.
If any provision of this Agreement, or the application thereof to any person or
circumstance, is held invalid or unenforceable, the remainder of this Agreement,
and the application of such provision to other persons or circumstances, shall
not be affected thereby, and to such end, the provisions of this Agreement are
agreed to be severable.
Section
7.4. Notices.
All notices, requests, claims, demands and other communications hereunder shall
be in writing and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by facsimile or by registered or certified
mail (postage prepaid, return receipt requested), to each other party as
follows:
If to V2P Inc.:
V2P Inc.
Xxx Xxxx
0000 Xxxxxxx Xx.
Xxxxx 000
Xxx Xxxxx, XX 00000
with a
copy to:
if to BTTA:
Xx. Xxxxx Xxxxxx
0000 Xxx Xx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
if to BTTA Sub Co:
Boatatopia Sub Co
Xx. Xxx Xxx Xxxx
0000 Xxxxx Xxxxx Xxx
Xxx Xxxxx, XX 00000
with a
copy to:
Xxxxxxxxxx Law Group
Xxxxxx X. Xxxxxxxxxx, Esq.
Suite 690
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx
00000
xxx@xxxxxxxxx.xxx
or to
such other address as the person to whom notice is given may have previously
furnished to the others in writing in the manner set forth
above.
Section
7.5. Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada, without regard to the principles of conflicts
of law thereof.
Section
7.6. Descriptive
Headings. The descriptive headings herein are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
Section
7.7. Parties in
Interest. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and its successors and permitted assigns, and
except as provided in Sections 4.9 and 4.11, nothing in this Agreement, express
or implied, is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section
7.8. Certain
Definitions. For the purposes of this Agreement, the term:
(a)
“affiliate” means (except as otherwise provided in Sections 2.19, 3.19 and 4.13)
a person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, the first mentioned
person;
(b)
“business day” means any day other than a day on which Nasdaq is
closed;
(c)
“capital stock” means common stock, preferred stock, partnership interests,
limited liability company interests or other ownership interests entitling the
holder thereof to vote with respect to matters involving the issuer
thereof;
(d)
“knowledge’’ or “known’’ means, with respect to any matter in question, if an
executive officer of BTTA or its subsidiaries, or V2P, as the case may be, has
actual knowledge of such matter;
(e)
“person” means an individual, corporation, partnership, limited liability
company, association, trust, unincorporated organization or other legal entity;
and
(f)
“subsidiary” or “subsidiaries” of XXXX, X0X or any other person, means any
corporation, partnership, limited liability company, association, trust,
unincorporated association or other legal entity of which BTTA, V2P or any such
other person, as the case may be (either alone or through or together with any
other subsidiary), owns, directly or indirectly, 50% or more of the capital
stock, the holders of which are generally entitled to vote for the election of
the board of directors or other governing body of such corporation or other
legal entity.
Section
7.9. Personal
Liability. This Agreement shall not create or be deemed to create or
permit any personal liability or obligation on the part of any direct or
indirect stockholder of XXXX, X0X or any officer, director, employee, agent,
representative or investor of any party hereto.
Section
7.10. Specific
Performance. The parties hereby acknowledge and agree that the failure of
any party to perform its agreements and covenants hereunder, including its
failure to take all actions as are necessary on its part to the consummation of
the Merger, will cause irreparable injury to the other parties for which
damages, even if available, will not be an adequate remedy. Accordingly, each
party hereby consents to the issuance of injunctive relief by any court of
competent jurisdiction to compel performance of such party’s obligations and to
the granting by any court of the remedy of specific performance of its
obligations hereunder; provided, however, that if a party hereto is entitled to
receive any payment or reimbursement of expenses pursuant to Sections 6.3(a),
(b) or (c), it shall not be entitled to specific performance to compel the
consummation of the Merger.
Section
7.11. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement.
Section
7.12. Conflict
Waiver. The parties to this Agreement acknowledge that Xxxxxxxxxx Law
Group has represented both parties to this Agreement prior to the introduction
of the parties, and continues to represent both parties with respect to the
terms and conditions of this Merger Transaction, and will continue to represent
BTTA with its securities matters post Merger. In addition Xxxxxxxxxx Law Group
has a substantial economic interest in the transaction, which has been fully
disclosed to both parties. Both parties acknowledge that a conflict does exist
in the representation of the parties by Xxxxxxxxxx Law Group, that both parties
have been provided the opportunity to obtain independent counsel or advise on
the terms and conditions of this Merger. All parties to this Merger, agree, upon
the execution hereof to waive such conflict.
In
Witness Whereof, each of the parties has caused this Agreement to be duly
executed on its behalf as of the day and year first above written.
V2P:
V2P
Inc.
a Nevada
corporation
By: /s/ Xxx
Xxxx
Xxx Xxxx
President
BTTA:
Boatatopia
Inc.
a Nevada
corporation
By: /s/ Xxxxx
Xxxxxx
Xxxxx Xxxxxx
President
BTTA
Sub Co:
BOATATOPIA
Sub Co
a Nevada
corporation
By: /s/
Xxx Xxx
Xxxx
Xxx Xxx Xxxx
President
