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Title: |
Agreement and Plan of Merger |
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Date: |
2004 |
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$60 |
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#1255159 |
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<SEQUENCE>3
<FILENAME>mergeragmt.txt
<TEXT>
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
PEOPLEVIEW, INC.
PPVW ACQUISITION CORPORATION
AND
ALAN MAYO & ASSOCIATES, INC.
dba THE MAYO GROUP
ALAN MAYO
CHARLES NICKELL
CRAIG DAVIS
___________________________
DATED AS OF APRIL 1, 2004
___________________________
<PAGE>
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of April 1,
2004, by and among PEOPLEVIEW, INC. a Nevada corporation ("Parent"), PPVW
ACQUISITION CORPORATION, a California corporation and a wholly-owned subsidiary
of Parent ("Sub") and ALAN MAYO & ASSOCIATES, INC., a California corporation and
doing business as THE MAYO GROUP ("Company"), ALAN MAYO, CHARLES NICKELL, and
CRAIG DAVIS (the "Company Shareholders").
RECITALS
WHEREAS, Sub and Company desire that Company merge with and into Sub under
and pursuant to the CGCL, upon the terms and conditions hereinafter set forth in
this Agreement (herein called the "Merger");
WHEREAS, the Boards of Directors of Parent and Sub have adopted resolutions
approving this Agreement and the consummation of the transactions contemplated
hereby authorizing the execution and delivery of this Agreement;
WHEREAS, the Board of Directors of Company has adopted resolutions approving
this Agreement and the consummation of the transactions contemplated hereby
authorizing the execution and delivery of this Agreement;
WHEREAS, it is intended that the Merger will be a tax-free reorganization under
Section 368(a)(2)(D) of the Code;
NOW, THEREFORE, in consideration of these premises and the mutual agreements,
provisions and covenants contained in this Agreement, the parties agree as
follows:
ARTICLE I DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere herein,
the following terms, as used herein, have the following meanings when used
herein with initial capital letters:
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with the first
Person and, if such first Person is an individual, any member of the immediate
family (including parents, spouse and children) of such individual and any trust
whose principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
For the purposes of this Agreement, "control," when used with respect to any
Person, means the possession, directly or indirectly, of the power to (i) vote
10% or more of the securities having ordinary voting power for the election of
directors (or comparable positions) of such Person or (ii) direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" means this Agreement and Plan of Merger, as the same may be amended
from time to time in accordance with the terms hereof.
-1-
<PAGE>
"Ancillary Closing Agreements" means (i) the Agreement of Merger, (ii) the
Employment Agreements, (iii) the Employee Inventions and Proprietary Rights
Assignment Agreements, and (iv) all other instruments, certificates and other
agreements entered into in connection with the consummation of the transactions
contemplated by this Agreement.
"Agreement of Merger" means the Agreement of Merger to be executed by Sub and
Company and filed with the California Secretary of State, conforming to the form
of the attached Exhibit A.
"Business" means the business of Company as currently conducted or proposed to
be conducted.
"Business Day" means a day that is not a Saturday, Sunday or a day on which
commercial banking institutions located in the City of Los Angeles, California
are authorized or required to close.
"Cash Consideration" has the meaning ascribed to such term in Section 3.3.2.
"CGCL" means the California General Corporation Law.
"Closing" has the meaning ascribed to such term in Section 4.1.
"Closing Date" has the meaning ascribed to such term in Section 4.1.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
"Company Common" means all the issued and outstanding shares of common stock of
Company as of the Effective Time.
"Company Shareholder Indemnity Claims" has the meaning ascribed to such term in
Section 10.2.
"Company Year End Financials" means the audited balance sheet of Company for the
fiscal year ended December 31, 2003, together with the related audited
statements of income, retained earnings and cash flows for such period (and
including the notes thereto).
"Contingent Consideration" has the meaning ascribed to such term in Section
3.3.3.
"Contingent Consideration Escrow Account" has the meaning ascribed to such term
in Section 3.3.3.
"Contingent Consideration Escrow Agreement" means the Contingent Consideration
Escrow Agreement, conforming to the form of the attached Exhibit B.
"Contingent Securities" has the meaning ascribed to such term in Section 3.3.3.
"Counter Notice" has the meaning ascribed to such term in Section 4.5.
-2-
<PAGE>
"Disclosure Schedules" means the schedules of disclosure and exceptions prepared
by Company and the Company Shareholders in connection with this Agreement
conforming to the form of the attached Exhibit C.
"EBITDA" means earnings before interest, taxes, depreciation, and amortization
of the Surviving Entity, as reported on Surviving Entity's statement of
operations prepared in accordance with GAAP consistently applied.
"Effective Time" has the meaning ascribed to such term in Section 2.1.
"Employee Inventions and Proprietary Rights Assignment Agreements" means
employee inventions and proprietary rights assignment agreements between Sub and
Alan Mayo, Charles Nickell, and Craig Davis, conforming to the form of the
attached Exhibit D.
"Employment Agreements" means employment agreements between Sub and Alan Mayo,
Charles Nickell, and Craig Davis, conforming to the form of the attached Exhibit
E.
"Environmental Law" means any Law, judicial or administrative interpretation,
judicial or administrative order, consent decree or judgment, relating to the
environment, human health and safety; and any state and local counterparts or
equivalents.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended,
and any successor thereto.
"Escrow Release Date" has the meaning ascribed to such term in Section 4.5.
"Exchange Act" means the Securities Exchange Act of 1934, or any successor
federal statute, and the rules and regulations of the SEC thereunder, all as the
same shall be in effect at the time. Reference to a particular section of the
Exchange Act shall include a reference to the comparable section, if any, of any
such successor federal statute.
"GAAP" means generally accepted accounting principles, consistently applied
through the specified period.
"Governmental Authority" means any domestic or foreign governmental or
regulatory agency, authority, bureau, commission, department, official or
similar body or instrumentality thereof, or any governmental court, arbitral
tribunal or other body administering alternative dispute resolution.
"Indemnity Escrow Account" has the meaning ascribed to such term in Section 4.5.
"Indemnity Escrow Agreement" means the Indemnity Escrow Agreement , conforming
to the form of the attached Exhibit F.
"Intellectual Property Right" means any trade name, product designation, logo,
slogan, trade secret, copyright, know-how, proprietary process, computer
database, Internet address or domain name or any other similar type of
proprietary intellectual property right, including, but not limited to, the
intellectual property rights of Company, set forth on Schedule 5.19(a) hereto.
-3-
<PAGE>
"Knowledge of Company" means the actual knowledge, after reasonable inquiry and
investigation, of one or more of the Company Shareholders.
"Knowledge of Sub or Parent" means the actual knowledge, after reasonable
inquiry and investigation, of one or more of the officers or directors of Sub or
Parent whose names are listed in Exhibit F.
"Law" means any federal, foreign, state or local statute, law, rule, regulation,
ordinance, code, permit, license, policy or rule of common law.
"Lien" means, with respect to any property or asset, any mortgage, lien, pledge,
charge, security interest, encumbrance or other adverse claim of any kind in
respect of such property or asset. For the purposes of this Agreement, a Person
will be deemed to own, subject to a Lien, any property or asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such property or asset.
"Material Adverse Effect" means a material adverse effect on the business,
assets, liabilities, condition (financial and other), results of operations or
prospects of Parent, Sub, or Company, as the case may be, that, taken as a
whole, has a monetary value in excess of $50,000.
"Material Contracts" means all contracts and agreements made by the Company in
the Ordinary Course of the Business, that have a monetary value greater than
$25,000.
"Merger Consideration" means the Stock Consideration, the Cash Consideration and
Contingent Consideration.
"Merger Securities" means the Stock Consideration and Contingent Consideration.
"Non-Operating Expenses" means any and all costs, fees and expenses that are not
both (i) related to Surviving Entity's day-to-day operations, consistent with
past practices, and (ii) reasonably necessary in the Ordinary Course of Business
of Surviving Entity's business, as conducted prior to the Closing Date, and any
other unusual, one-time or non-recurring expenses.
"Order" means any judgment, injunction, judicial or administrative order or
decree.
"Ordinary Course of Business" means, with respect to any Person, the ordinary
course of business of such Person, consistent with such Person's past practice
and custom, including, with respect to any category, quantity or dollar amount,
term and frequency of payment, delivery, accrual, expense or any other
accounting entry.
"Parent Common" means Parent's currently authorized common stock, par value
$0.001 per share, and stock of any other class or other consideration into which
such currently authorized common stock may hereafter have been changed.
"Parent SEC Documents" has the meaning ascribed to such term in Section 6.5.1.
"Participating Holders" has the meaning ascribed to such term in Section 8.2.1.
-4-
<PAGE>
"Permit" has the meaning ascribed to such term in Section 5.16.2.
"Permitted Lien" means (i) mechanics', workmen's, carriers', repairmen's or
other like Liens arising or incurred in the Ordinary Course of Business in
respect of obligations that are not overdue, (ii) statutory liens for Taxes,
assessments and other similar governmental charges that are not overdue, or
(iii) Liens that arise under zoning, land use and other similar imperfections of
title that arise in the Ordinary Course of Business and that, in the aggregate,
do not materially affect the value, use or marketability of the property subject
thereto.
"Person" means an individual, corporation, partnership, limited liability
company, joint venture, association, trust or other entity or organization or
Governmental Authority.
"Prohibited Business" means any business entity whose activities, products, or
services are competitive with those of Company, Sub or Parent, including
products and services in development for which Company, Sub or Parent have
adopted a plan for bring such product or service to market or expended
significant resources.
"Registrable Securities" means any Merger Securities until (i) a
registration statement under the Securities Act covering such Merger Securities
shall have been declared effective and such Merger Securities shall have been
disposed of pursuant to such effective registration statement, or (ii) such
Merger Securities shall have been sold under circumstances in which all of the
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