Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of the 6th day of May, 2009
AMONG:
MAVEN MEDIA HOLDINGS, INC., a corporation formed pursuant to the laws
of the State of Delaware and having an office for business located at
1649 Dartmouth Street, Chula Vista, California 91913
("MAVEN")
AND:
WASTE2ENERGY ACQUISITION CO. , a corporation formed pursuant to the
laws of the State of Delaware and a wholly owned subsidiary of Maven
(the "ACQUIRER")
AND:
WASTE2ENERGY, INC., a corporation formed pursuant to the laws of the
State of Delaware and having an office for business located at 1185
Avenue of the Americas, 20th Floor, New York, New York 10036
("WASTE2ENERGY")
WHEREAS:
A. Waste2Energy is a Delaware corporation whose business plan calls for the
designing, building, installing and selling of waste-to-energy plans that
generate "Renewable Green Power" converting biomass or other solid waste streams
traditionally destined for landfill into clean renewable energy;
B. The Waste2Energy shareholders own an aggregate of 45,819,395 Waste2Energy
shares of common stock (the "W2 SHARES") which W2 Shares constitute 100% of the
issued and outstanding W2 Shares;
C. Maven is a reporting company under the Securities Act of 1933, as amended,
whose common stock is eligible for quotation on the OTC Bulletin Board under the
symbol "MVMH.OB," is a development stage, start-up company and currently has no
operations and is a "shell" company for purposes of the rules and regulations of
the Commission;
D. Effective as of the Closing, the sole officer and director of Maven (the
"MAVEN EXECUTIVE") shall (i) resign as such and be replaced by persons
designated by Waste2Energy, and (ii) cancel 2,000,000 Maven Common Shares such
that immediately prior to Closing Maven has issued and outstanding 1,000,000
Maven Common Shares, all of which shall be done pursuant to the Separation
Agreement (as defined in Section 7.3(h) hereof) which shall be executed
simultaneously with the execution of this Agreement;
E. The respective Boards of Directors of Maven, Waste2Energy and the Acquirer
deem it advisable and in the best interests of Maven, Waste2Energy and the
Acquirer that the Acquirer merge with and intoWaste2Energy (the "MERGER")
pursuant to this Agreement, the Certificates of Merger, and the applicable
provisions of the laws of the State of Delaware; and
F. All capitalized terms not otherwise defined shall have the definitions set
forth in Article 1 hereof.
NOW THEREFORE, WITNESSETH THAT in consideration of the premises and the mutual
covenants, agreements, representations and warranties contained herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
DEFINITIONS
1.1 In this Agreement the following terms will have the following meanings:
(a) "ACQUISITION SHARES" means the 45,819,395 Maven Common Shares, which
shares are to be issued and delivered to the Waste2Energy Shareholders
at Closing pursuant to the terms of the Merger in accordance with
Schedule 1.1(a), annexed hereto;
(b) "ACQUISITION WARRANTS" means warrants to purchase shares of Maven
Common Stock as set forth on Schedule 1.1(b);
(c) "AGREEMENT" means this Agreement and Plan of Merger by and among
Maven, the Acquirer, and Waste2Energy;
(d) "CLOSING" means the completion, on the Closing Date, of the
transactions contemplated hereby in accordance with Article 9 hereof;
(e) "CLOSING DATE" means the day on which all conditions precedent to the
completion of the transaction as contemplated hereby have been
satisfied or waived;
(f) "COMMISSION" means the Securities and Exchange Commission;
(g) "DGCL" means the Delaware General Corporation Law;
(h) "EFFECTIVE TIME" means the earlier to occur of the date of (i) the
Closing set forth in the Certificate of Merger and (ii) the filing of
the appropriate Certificates of Merger in the form required by the
State of Delaware provided that the Merger shall become effective as
provided in the DGCL;
(i) "MAVEN BUSINESS" means all aspects of any business conducted by Maven
and its subsidiaries;
(j) "MAVEN COMMON SHARES" means the shares of common stock, par value
$0.0001, in the capital of Maven;
(k) "MAVEN FINANCIAL STATEMENTS" means, collectively, the audited
financial statements of Maven for the two fiscal years ended March 31,
2008 and 2007, and the unaudited financial statements of Maven for the
period ended December 31, 2008;
(l) "MERGER" means the merger, at the Effective Time, of Waste2Energy and
the Acquirer pursuant to this Agreement;
(m) "PLACE OF CLOSING" means the offices of Sichenzia Ross Friedman
Ference LLP, or such other place as Maven and Waste2Energy may
mutually agree upon;
(n) "PPM" means the private placement memorandum of Maven (including all
exhibits and supplements thereto), dated May 7, 2009;
(o) "SECURITIES ACT" means the Securities Act of 1933, as amended;
(p) "SEC REPORTS" means all forms, reports and documents filed and
required to be filed by Maven with the Commission under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") through the date
hereof;
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(q) "SUBSCRIPTION AGREEMENTS" means the series of subscription agreements
between Maven and certain investors, pursuant to the PPM, pursuant to
which investors will subscribe for the shares of Maven's common stock;
(r) "SURVIVING COMPANY" means Waste2Energy following the Merger;
(s) WASTE2ENERGY ACCOUNTS RECEIVABLE" means all accounts receivable and
other amounts owing to Waste2Energy;
(t) "WASTE2ENERGY ASSETS" means all the property and assets of the
Waste2Energy Business of every kind and description wherever situated
including, without limitation, Waste2Energy Inventory, Waste2Energy
Material Contracts, Waste2Energy Accounts Receivable, Waste2Energy
Cash, Waste2Energy Intangible Assets and Waste2Energy Goodwill, and
all credit cards, charge cards and banking cards issued to
Waste2Energy;
(u) "WASTE2ENERGY BUSINESS" means all aspects of the business currently
conducted by Waste2Energy and its subsidiaries;
(v) "WASTE2ENERGY CASH" means all cash on hand or on deposit to the credit
of Waste2Energy on the Closing Date;
(w) "WASTE2ENERGY FINANCIAL STATEMENTS" means collectively, the audited
financial statements of Waste2Energy for the fiscal year ended March
31, 2008, and the unaudited financial statements for Waste2Energy for
the period ended December 31, 2008, which shall be delivered at
Closing, all of which will be prepared in accordance with United
States generally accepted accounting principles and the requirements
of Regulation S-X as promulgated by the Commission;
(x) "WASTE2ENERGY GOODWILL" means the goodwill of the Waste2Energy
Business together with the exclusive right of Waste2Energy to
represent itself as carrying on the Waste2Energy Business in
succession of subject to the terms hereof, and the right to use any
words indicating that the Waste2Energy Business is so carried on
including the right to use the name "Waste2Energy" or any variation
thereof as part of the name of or in connection with the Waste2Energy
Business or any part thereof carried on or to be carried on by
Waste2Energy, the right to all corporate, operating and trade names
associated with the Waste2Energy Business, or any variations of such
names as part of or in connection with the Waste2Energy Business, all
telephone listings and telephone advertising contracts, all lists of
customers, books and records and other information relating to the
Waste2Energy Business, all necessary licenses and authorizations and
any other rights used in connection with the Waste2Energy Business;
(y) "WASTE2ENERGY INTANGIBLE ASSETS" means all of the intangible assets of
Waste2Energy, including, without limitation, Waste2Energy Goodwill,
all trademarks, logos, copyrights, designs, and other intellectual and
industrial property of Waste2Energy;
(z) "WASTE2ENERGY INVENTORY" means all inventory and supplies of the
Waste2Energy Business as of December 31, 2008 as increased or
decreased in the ordinary course of business;
(aa) "WASTE2ENERGY MATERIAL CONTRACTS" means the burden and benefit of and
the right, title and interest of Waste2Energy in, to and under all
trade and non-trade contracts, engagements or commitments, whether
written or oral, to which Waste2Energy is entitled in connection with
the Waste2Energy Business under which Waste2Energy is obligated to pay
or entitled to receive the sum of Five Thousand Dollars ($5,000) or
more annually including, without limitation, any pension plans, profit
sharing plans, bonus plans, loan agreements, security agreements,
indemnities and guarantees, any agreements with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, directors, attorneys or others which cannot be terminated
without liability on not more than one month's notice; and
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(bb) "W2 SHARES" means all of the issued and outstanding capital stock of
Waste2Energy;
(cc) "WASTE2ENERGY WARRANTS" means warrants to purchase W2 Shares as set
forth on Schedule 1.1(cc);
(dd) "WASTE2ENERGY SHAREHOLDERS" means all of the holders of the issued and
outstanding W2 Shares;
(ee) "WASTE2ENERGY WARRANT HOLDERS" means all of the holders of issued and
outstanding Waste2Energy Warrants;
Any other terms defined within the text of this Agreement will have the meanings
so ascribed to them.
CAPTIONS AND SECTION NUMBERS
1.2 The headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended to
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
SECTION REFERENCES AND SCHEDULES
1.3 Any reference to a particular "ARTICLE", "SECTION", "PARAGRAPH", "CLAUSE" or
other subdivision is to the particular Article, section, clause or other
subdivision of this Agreement and any reference to a "SCHEDULE" by letter will
mean the appropriate Schedule attached to this Agreement and by such reference
the appropriate Schedule is incorporated into and made part of this Agreement.
SEVERABILITY OF CLAUSES
1.4 If any part of this Agreement is declared or held to be invalid for any
reason, such invalidity will not affect the validity of the remainder which will
continue in full force and effect and be construed as if this Agreement had been
executed without the invalid portion, and it is hereby declared the intention of
the parties that this Agreement would have been executed without reference to
any portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE 2
THE MERGER
THE MERGER
2.1 At Closing, the Acquirer shall be merged with and into Waste2Energy pursuant
to this Agreement and the separate corporate existence of the Acquirer shall
cease and Waste2Energy, as it exists from and after the Closing, shall be the
Surviving Company.
EFFECT OF THE MERGER
2.2 The Merger shall have the effect provided therefore by the DGCL. Without
limiting the generality of the foregoing, and subject thereto, at Closing (i)
all the rights, privileges, immunities, powers and franchises, of a public as
well as of a private nature, and all property, real, personal and mixed, and all
debts due on whatever account, including without limitation subscriptions to
shares, and all other choices in action, and all and every other interest of or
belonging to or due to Waste2Energy or the Acquirer, as a group, subject to the
terms hereof, shall be taken and deemed to be transferred to, and vested in, the
Surviving Company without further act or deed; and all property, rights and
privileges, immunities, powers and franchises and all and every other interest
shall be thereafter as effectually the property of the Surviving Company, as
they were of Waste2Engery and the Acquirer, as a group, and (ii) all debts,
liabilities, duties and obligations of Waste2Energy and the Acquirer, as a
group, subject to the terms hereof, shall become the debts, liabilities and
duties of the Surviving Company and the Surviving Company shall thenceforth be
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responsible and liable for all debts, liabilities, duties and obligations of
Waste2Energy and the Acquirer, as a group, and neither the rights of creditors
nor any liens upon the property of Waste2Energy or the Acquirer, as a group,
shall be impaired by the Merger, and may be enforced against the Surviving
Company.
ARTICLES OF INCORPORATION; BYLAWS; DIRECTORS AND OFFICERS
2.3 The Articles of Incorporation of Waste2Energy from and after the Closing
shall be the Articles of Incorporation of the Surviving Company as in effect
immediately prior to the Closing until thereafter amended in accordance with the
provisions therein and as provided by the applicable provisions of the DGCL. The
Bylaws of Waste2Energy from and after the Closing shall be the Bylaws of the
Surviving Company as in effect immediately prior to the Closing, continuing
until thereafter amended in accordance with their terms, the Articles of
Incorporation of the Surviving Company and as provided by the DGCL. The
directors and officers of Waste2Energy immediately prior to the Closing shall be
the directors and officers of the Surviving Company.
CONVERSION OF SECURITIES
2.4 At the Effective Time, by virtue of the Merger and without any action on the
part of the Acquirer or Waste2Energy, the shares of capital stock of each of
Waste2Energy and the Acquirer shall be converted as follows:
(a) Capital Stock of the Acquirer. Each issued and outstanding share of
the Acquirer's capital stock shall continue to be issued and
outstanding and shall be converted into one share of validly issued,
fully paid, and non-assessable common stock of the Surviving Company.
Each stock certificate of the Acquirer evidencing ownership of any
such shares shall continue to evidence ownership of such shares of
capital stock of the Surviving Company, all of which shall be owned by
Maven.
(b) Conversion of W2 Shares. Each W2 Share that is issued and outstanding
at the Effective Time, shall automatically be cancelled and
extinguished and converted, without any action on the part of the
holder thereof, into the right to receive one Acquisition Share for
each W2 Share. All such W2 Shares, when so converted, shall no longer
be outstanding and shall automatically be cancelled and retired and
shall cease to exist, and each holder of a certificate representing
any such shares shall cease to have any rights with respect thereto,
except the right to receive the Acquisition Shares paid in
consideration therefor upon the surrender of such certificate in
accordance with this Agreement.
(c) Conversion of Waste2Energy Warrants. Each Waste2Energy Warrant that is
issued and outstanding at the Effective Time, shall automatically be
cancelled and extinguished and converted, without any action on the
part of the holder thereof, into the right to receive one Acquisition
Warrant for each Waste2Energy Warrant. All such Waste2Energy Warrants,
when so converted, shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist, and
each holder of a certificate representing any such warrant shall cease
to have any rights with respect thereto, except the right to receive
the Acquisition Warrants paid in consideration therefor upon the
surrender of such certificate in accordance with this Agreement.
2.5 Dissenting Shareholders
(a) Notwithstanding any provision of this Agreement to the contrary, each
W2 Share issued and outstanding immediately prior to the Closing and
that is held by a shareholder of Waste2Energy who has not voted in
favor of this Agreement or consented thereto in writing and who shall
have otherwise perfected such holder's dissenters' rights in
accordance with and as contemplated by Section 262 of the DGCL (each
such shareholder, a "DISSENTING STOCKHOLDER", and each W2 Share held
by such shareholder, a "DISSENTING SHARE") shall not be canceled,
extinguished and converted, but shall be entitled to receive from the
Surviving Company the value of the W2 Shares held by such Dissenting
Stockholder as determined pursuant to Section 262 of the DGCL;
provided, however, that if such Dissenting Stockholder fails to
perfect, or effectively withdraws or loses such holder's right to
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appraisal of and payment for such holder's shares under Section 262 of
the DGCL, each W2 Share of such Dissenting Stockholder shall thereupon
be deemed to have been converted into and to have become exchangeable
for, as of the Closing, the right to receive shares of Maven common
stock, and such W2 Share shall no longer be a Dissenting Share. In
such event, Waste2Energy shall deliver the number of shares of Maven
common stock to which such shareholder is entitled (without interest)
upon surrender by such shareholder of the certificate or certificates
representing the W2 Shares held by such shareholder.
(b) Waste2Energy shall provide notice in accordance with the DGCL to each
shareholder that is entitled to appraisal rights; provided that if the
Waste2Energy shareholders have approved the Merger by written consent
pursuant to Section 228 of the DGCL, Waste2Energy shall provide notice
promptly, and in any event within five (5) business days, after such
stockholder approval is obtained. Waste2Energy shall give prompt
notice to Maven of any demands received by Waste2Energy for appraisal
of shares of Waste2Energy common stock. The Surviving Company shall
promptly pay to any Dissenting Stockholder any and all amounts due and
owing to such holder as a result of any settlement of, or
determination by the Court of Chancery of the State of Delaware with
respect to, such demands.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF MAVEN
REPRESENTATIONS AND WARRANTIES
3.1 Maven and the Acquirer jointly and severally represent and warrant in all
material respects to Waste2Energy, with the intent that Waste2Energy will rely
thereon in entering into this Agreement and in approving and completing the
transactions contemplated hereby, that:
MAVEN - CORPORATE STATUS AND CAPACITY
(a) Incorporation. Maven is a corporation duly incorporated and validly
existing under the laws of the State of Delaware, and is in good
standing with the office of the Secretary of State for the State of
Delaware.
(b) Carrying on Business. Maven and its subsidiaries do not carry on any
material business activity in any jurisdiction. The nature of the
Maven Business does not require Maven and its subsidiaries to register
or otherwise be qualified to carry on business in any jurisdiction
other than the state of its organization, where Maven and its
subsidiaries are each dully qualified and authorized to do business;
(c) Corporate Capacity. Maven has the corporate power, capacity and
authority to own its assets and to enter into and complete this
Agreement. None of Maven's subsidiaries have any assets or
liabilities.
(d) Reporting Status; Listing. Maven is required to file current reports
with the Commission pursuant to Section 15(d) of the Exchange Act.
Maven's common stock is not registered under Section 12(g) of the
Exchange Act. The Maven Common Shares are eligible for quotation on
the OTC Bulletin Board under the symbol "MVMH.OB". None of Maven's
subsidiaries has common stock that is registered under Section 12(g)
of the Exchange Act and none of Maven's subsidiaries is required to
file current reports with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act.
(e) SEC Reports. Maven has filed all SEC Reports with the Commission under
the Exchange Act. The SEC Reports, at the time filed, complied as to
form in all material respects with the requirements of the Exchange
Act. None of the SEC Reports, including without limitation any
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financial statements or schedules included therein, contains any
untrue statements of a material fact or omits to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading;
ACQUIRER - CORPORATE STATUS AND CAPACITY
(f) Incorporation. The Acquirer is a corporation duly incorporated and
validly existing under the laws of the State of Delaware, and is in
good standing with the office of the Secretary of State for the State
of Delaware;
(g) Carrying on Business. Other than corporate formation and organization,
the Acquirer has not carried on business activities to date;
(h) Corporate Capacity. The Acquirer has the corporate power, capacity and
authority to enter into and complete this Agreement;
MAVEN - CAPITALIZATION
(i) Authorized Capital. The authorized capital of Maven consists of
80,000,000 shares of common stock, $0.0001 par value, of which
3,000,000 Maven Common Shares are presently issued and outstanding of
which 2,000,000 Maven Common Shares are owned by the Maven Executive
and the remaining 1,000,000 Maven Common Shares are owned by 25
shareholders. There are no preferred shares authorized.
(j) No Option, etc. Except as provided in, contemplated by, or set forth
in this Agreement or the SEC Reports, no person, firm or corporation
has any agreement, warrant or option or any right capable of becoming
an agreement, warrant or option for the acquisition of any common or
preferred shares of Maven or for the purchase, subscription or
issuance of any of the unissued shares in the capital of Maven;
ACQUIRER - CAPITALIZATION
(k) Authorized Capital. The authorized capital of the Acquirer consists of
300 shares of common stock, of which 300 shares of common stock are
presently issued and outstanding and which are owned by Maven;
(l) No Option, etc. Except as provided in contemplated by, or set forth in
this Agreement, the SEC Reports, the PPM or the Subscription
Agreement, no person, firm or corporation has any agreement or option
or any right capable of becoming an agreement or option for the
acquisition of any common or preferred shares in Acquirer or for the
purchase, subscription or issuance of any of the unissued shares in
the capital of Acquirer;
MAVEN - RECORDS AND FINANCIAL STATEMENTS
(m) Charter Documents. The charter documents of Maven, as amended to date
and as of the Closing, and the Acquirer are as set forth as exhibits
to the officers certificate to be delivered at Closing pursuant to
Section 9.3 hereof;
(n) Corporate Minute Books. Maven and its subsidiaries are not in
violation or breach of, or in default with respect to, any term of
their respective Certificates of Incorporation (or other charter
documents) or by-laws;
(o) Maven Financial Statements. The Maven Financial Statements present
fairly, in all material respects, the assets and liabilities (whether
accrued, absolute, contingent or otherwise) of Maven, including the
assets and liabilities, if any of Maven's subsidiaries, as of the
respective dates thereof, and the results of operations and changes in
financial position of Maven during the period covered thereby, in all
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material respects and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods indicated;
(p) Maven Accounts Payable and Liabilities. There are no liabilities,
contingent or otherwise, of Maven or its subsidiaries, which are not
reflected in the Maven Financial Statements except which were incurred
in the ordinary course of business since the date of the Maven
Financial Statements, all of which will be satisfied prior to Closing,
and neither Maven nor its subsidiaries have guaranteed or agreed to
guarantee any debt, liability or other obligation of any person, firm
or corporation;
(q) Maven Accounts Receivable. There are no accounts receivable of Maven
or any of Maven's subsidiaries;
(r) No Debt. Neither Maven nor its subsidiaries, are, on the date hereof
and on Closing, materially indebted to any, person or entity or other
third party, including any affiliate, director or officer of Maven;
(s) No Related Party Debt to Maven . No director or officer or affiliate
of Maven or its subsidiaries, is now indebted to or under any
financial obligation to Maven or its subsidiaries on any account
whatsoever, except for advances on account of travel and other
expenses not exceeding One Thousand Dollars ($1,000) in total;
(t) No Dividends. No dividends or other distributions on any shares in the
capital of Maven have been made, declared or authorized since the date
of the Maven Financial Statements;
(u) No Payments. No payments of any kind have been made or authorized
since the date of the Maven Financial Statements to or on behalf of
officers, directors, shareholders or employees of Maven or its
subsidiaries or under any management agreements with Maven or its
subsidiaries, except payments made in the ordinary course of business
and at the regular rates of salary or other remuneration payable to
them;
(v) No Pension Plans. There are no pension, profit sharing, group
insurance or similar plans or other deferred compensation plans
affecting Maven or its subsidiaries;
(w) No Adverse Events. Since December 31, 2008,
(i) there has not been any material adverse change in the properties,
results of operations, financial position or condition (financial
or otherwise) of Maven, its subsidiaries, its assets or
liabilities or any damage, loss or other change in circumstances
materially affecting Maven, the Maven Business or Maven's right
to carry on the Maven Business, other than non-material changes
in the ordinary course of business or as contemplated pursuant to
this Agreement,
(ii) there has not been any damage, destruction, loss or other event
(whether or not covered by insurance) materially and adversely
affecting Maven, its subsidiaries, or the Maven Business,
(iii)there has not been any material increase in the compensation
payable or to become payable by Maven to any of Maven's officers,
employees or agents or any bonus, payment or arrangement made to
or with any of them,
(iv) the Maven Business has been and continues to be carried on in the
ordinary course,
(v) Maven has not waived or surrendered any right of material value,
(vi) Maven has not discharged, satisfied or paid any lien or
encumbrance or obligation or liability other than current
liabilities in the ordinary course of business; and
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(vii) no capital expenditures have been authorized or made by Maven.
MAVEN - INCOME TAX MATTERS
(x) Tax Returns. As of the Closing Date, all tax returns of Maven and its
subsidiaries required by law to be filed have been filed and are true,
complete and correct, and any taxes payable in accordance with any
return filed by Maven and its subsidiaries, or in accordance with any
notice of assessment or reassessment issued by any taxing authority
have been so paid and no amounts are owed to any taxing authority as
of the Closing Date. Without limiting the generality of the foregoing,
Maven hereby represents that no amounts are owed to any taxing
authorities by Maven and/or its subsidiaries, for the period
commencing on the formation (incorporation) of Maven though the
Closing Date;
(y) Current Taxes. Adequate provisions have been made for taxes payable
($1,117.44 for California Corporation Franchise Tax as estimated by
Maven management) for the current period for which tax returns are not
yet required to be filed and there are no agreements, waivers, or
other arrangements providing for an extension of time with respect to
the filing of any tax return by, or payment of, any tax, governmental
charge or deficiency by Maven or its subsidiaries. There are no
contingent tax liabilities or any grounds which would prompt a
reassessment including aggressive treatment of income and expenses in
filing earlier tax returns for Maven or its subsidiaries;
MAVEN - APPLICABLE LAWS AND LEGAL MATTERS
(z) Licenses. Maven and its subsidiaries hold all licenses and permits as
may be requisite for carrying on the Maven Business in the manner in
which it has heretofore been carried on, which licenses and permits
have been maintained and continue to be in good standing except where
the failure to obtain or maintain such licenses or permits would not
have a material adverse effect on the Maven Business;
(aa) Applicable Laws. Neither Maven nor its subsidiaries have been charged
with or received notice of breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which is subject or which
apply to it the violation of which would have a material adverse
effect on the Maven Business, and to Maven's knowledge, Maven is not
in breach of any laws, ordinances, statutes, regulations, bylaws,
orders or decrees the contravention of which would result in a
material adverse impact on the Maven Business;
(bb) Pending or Threatened Litigation. There is no litigation or
administrative or governmental proceeding pending or threatened
against or relating to Maven, its subsidiaries, or the Maven Business
nor does Maven have any knowledge of any act or omission of Maven or
its subsidiaries that would form any material basis for any such
action or proceeding;
(cc) No Bankruptcy. Neither Maven nor its subsidiaries have made any
voluntary assignment or proposal under applicable laws relating to
insolvency and bankruptcy and no bankruptcy petition has been filed or
presented against Maven or its subsidiaries and no order has been made
or a resolution passed for the winding-up, dissolution or liquidation
of Maven or its subsidiaries;
(dd) Labor Matters. Neither Maven nor its subsidiaries is a party to any
collective agreement relating to the Maven Business with any labor
union or other association of employees and no part of the Maven
Business has been certified as a unit appropriate for collective
bargaining or, to the knowledge of Maven, has made any attempt in that
regard;
(ee) Finder's Fees. Unless otherwise disclosed, neither Maven nor its
subsidiaries is a party to any agreement which provides for the
payment of finder's fees, brokerage fees, commissions or other fees or
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amounts which are or may become payable to any third party in
connection with the execution and delivery of this Agreement and the
transactions contemplated herein;
EXECUTION AND PERFORMANCE OF AGREEMENT
(ff) Authorization and Enforceability. The execution and delivery of this
Agreement, and the completion of the transactions contemplated hereby,
have been duly and validly authorized by all necessary corporate
action on the part of Maven and the Acquirer;
(gg) No Violation or Breach. The execution and performance of this
Agreement will not:
(i) violate the charter documents of Maven or the Acquirer or result
in any breach of, or default under, any loan agreement, mortgage,
deed of trust, or any other agreement to which Maven or its
subsidiaries are a party,
(ii) give any person any right to terminate or cancel any agreement or
any right or rights enjoyed by Maven or its subsidiaries,
(iii)result in any alteration of Maven's or its subsidiaries'
obligations under any agreement to which Maven or its
subsidiaries are a party,
(iv) result in the creation or imposition of any lien, encumbrance or
restriction of any nature whatsoever in favor of a third party
upon or against the assets of Maven,
(v) result in the imposition of any tax liability to Maven or its
subsidiaries relating to the assets of Maven, or
(vi) violate any court order or decree to which Maven or its
subsidiaries are subject;
THE MAVEN BUSINESS
(hh) Maintenance of Business. Since the date of the Maven Financial
Statements, Maven and its subsidiaries have not entered into any
material agreement or commitment except as set forth in this Agreement
and the PPM;
(ii) Subsidiaries. Except for the Acquirer, Maven does not own any
subsidiaries and does not otherwise own, directly or indirectly, any
shares or interest in any other corporation, partnership, joint
venture or firm. References in this Agreement to any subsidiaries of
Maven shall include the Acquirer and any other subsidiary that Maven
may have but has not disclosed in this Agreement;
MAVEN - ACQUISITION SHARES AND ACQUISITION WARRANTS
(jj) Acquisition Shares and Acquisition Warrants. The Acquisition Shares
when delivered to the holders of W2 Shares pursuant to the Merger and
the Shares issuable upon exercise of the Acquisition Warrants shall be
validly issued and outstanding as fully paid and non-assessable shares
and the Acquisition Shares issuable upon exercise of the Acquisition
Warrants shall be transferable upon the books of Maven, in all cases
subject to the provisions and restrictions of all applicable
securities laws; and
(kk) Securities Law Compliance. Except as set forth in the SEC Reports,
Maven has not issued any shares of its common stock and/or securities
convertible into or exercisable for shares of common stock. Neither
Maven nor any person acting on its behalf has taken or will take any
action (including, without limitation, any offering of any securities
of Maven under circumstances which would require the integration of
such offering with the offering of the Acquisition Shares issued to
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the Waste2Energy Shareholders) which subject the issuance or sale of
such shares to the Waste2Energy Shareholders to the registration
requirements of Section 5 of the Securities Act.
NON-MERGER AND SURVIVAL
3.2 The representations and warranties of Maven and the Acquirer contained
herein are true and correct as of the date of this Agreement and will be true at
and as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation or
warranty) or any investigation made by the Waste2Energy Shareholders, the
representations and warranties of Maven shall survive the Closing for a period
of two (2) years.
INDEMNITY
3.3 Maven shall indemnify and save harmless Waste2Energy and the Waste2Energy
Shareholders from and against any and all claims, demands, actions, suits,
proceedings, assessments, judgments, damages, costs, losses and expenses,
including any payment made in good faith in settlement of any claim, resulting
from the breach by Maven of any representation, covenant or warranty made under
this Agreement or from any misrepresentation in or omission from any certificate
or other instrument furnished or to be furnished by Maven and/or the Acquirer to
Waste2Energy hereunder.
ARTICLE 4
COVENANTS OF MAVEN
COVENANTS
4.1 Maven covenants and agrees with Waste2Energy that Maven will:
(a) Conduct of Business. Until the Closing, conduct its business
diligently and in the ordinary course consistent with the manner in
which it generally has been operated up to the date of execution of
this Agreement;
(b) Access. Until the Closing, give the Waste2Energy Shareholders and
their representatives full access to all of the properties, books,
contracts, commitments and records of Maven, and furnish to the
Waste2Energy Shareholders and their representatives all such
information as they may reasonably request;
(c) Procure Consents. Until the Closing, take all reasonable steps
required to obtain, prior to Closing, any and all third party consents
required to permit the Merger;
(d) Public Information. Make and keep public information available, as
those terms are understood and defined in Rule 144 (defined below);
and
(e) SEC Filings. File with the Commission in a timely manner, all reports
and other documents required of Maven under either the Securities Act
or the Exchange Act.
(f) Tax Returns. Maven shall on and after the Closing Date be responsible
for any taxes owed or penalties thereon pertaining to the failure of
Maven and its subsidiaries to file tax returns with the appropriate
jurisdictions for any periods prior to Closing.
(g) Bulletin Board. Until the Closing, advise Waste2Energy of any
problems, letters and/or concerns relating to the continued
eligibility of Maven Common Shares to be eligible for quotation on the
OTC Bulletin Board.
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AUTHORIZATION
4.2 Upon the Closing, Maven shall authorize and direct any and all federal,
state, municipal, foreign and international governments and regulatory
authorities having jurisdiction respecting Maven and its subsidiaries to release
any and all information in their possession respecting Maven and its
subsidiaries to Waste2Energy. Maven shall promptly execute and deliver to
Waste2Energy any and all consents to the release of information and specific
authorizations which Waste2Energy reasonably requires to gain access to any and
all such information.
REPORTS UNDER THE EXCHANGE ACT
4.3 With a view to making available to the Waste2Energy Shareholders the
benefits of Rule 144 promulgated under the Securities Act or any other similar
rule or regulation of the Commission that may at any time permit the
Waste2Energy Shareholders to sell securities of Maven to the public without
registration and without imposing restrictions arising under the federal
securities laws on the purchases thereof ("RULE 144"), and provided that the
applicable holding period imposed by Rule 144 has been met, Maven agrees to
furnish to each Waste2Energy Shareholder, so long as such Waste2Energy
Shareholder owns Maven Common Shares, promptly upon request, (i) a written
statement by Maven that it has complied with the reporting requirements of Rule
144, the Securities Act and the Exchange Act, (ii) a copy of the most recent
annual or quarterly report of Maven and such other reports and documents so
filed by Maven, and (iii) such other information as may be reasonably requested
to permit the Waste2Energy Shareholders to sell such securities pursuant to Rule
144 without registration.
SURVIVAL
4.4 The covenants set forth in this Article shall survive the Closing for the
benefit of the Waste2Energy Shareholders and shall continue to survive for a
period of one (1) year from the Closing Date.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF
WASTE2ENERGY
REPRESENTATIONS AND WARRANTIES
5.1 Waste2Energy represents and warrants in all material respects to Maven, with
the intent that it will rely thereon in entering into this Agreement and in
approving and completing the transactions contemplated hereby, that:
WASTE2ENERGY - CORPORATE STATUS AND CAPACITY
(a) Incorporation. Waste2Energy is a corporation duly incorporated and
validly existing under the laws of the State of Delaware, and is in
good standing with the office of the Secretary of State for the State
of Delaware;
(b) Carrying on Business. Waste2Energy carries on business primarily in
the State of New York and does not carry on any material business
activity in any other jurisdiction within the United States. The
nature of the Waste2Energy Business does not require Waste2Energy to
register or otherwise be qualified to carry on business in any other
jurisdiction;
(c) Corporate Capacity. Waste2Energy has the corporate power, capacity and
authority to own the Waste2Energy Assets and to carry on the
Waste2Energy Business and Waste2Energy has the corporate power,
capacity and authority to enter into and complete this Agreement;
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WASTE2ENREGY - CAPITALIZATION
(d) Authorized Capital. The authorized capital of Waste2Energy consists of
100,000,000 shares of common stock, $0.001 par value;
(e) Ownership of W2 Shares. The issued and outstanding share capital of
Waste2Energy consist of 45,819,395 common shares (being the W2
Shares), which shares on Closing shall be validly issued and
outstanding as fully paid and non-assessable shares. The Waste2Energy
Shareholders will be at Closing the registered and beneficial owner of
the W2 Shares. The W2 Shares owned by the Waste2Enegy Shareholders
will on Closing be free and clear of any and all liens, charges,
pledges, encumbrances, restrictions on transfer and adverse claims
whatsoever not created by or through Maven and/or the Acquirer;
(f) No Restrictions. There are no restrictions on the transfer, sale or
other disposition of W2 Shares contained in the charter documents of
Waste2Energy or under any agreement;
WASTE2ENERGY - RECORDS AND FINANCIAL STATEMENTS
(g) Charter Documents. The charter documents of Waste2Energy have not been
altered since its incorporation date, except as filed in the record
books of Waste2Energy, and Waste2Energy is not in violation or breach
of, or in default with respect to, any term of its Articles of
Incorporation (or other charter documents) or by-laws;
(h) Waste2Energy Financial Statements. The Waste2Energy Financial
Statements present fairly, in all material respects, the assets and
liabilities (whether accrued, absolute, contingent or otherwise) of
Waste2Energy as of the respective dates thereof, and the results of
operations and changes in financial position of Waste2Energy during
the periods covered thereby, and will be prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods indicated;
(i) Waste2Energy Accounts Payable and Liabilities. There are no material
liabilities, contingent or otherwise, of Waste2Energy which are not
reflected in the Waste2Energy Financial Statements except those
incurred in the ordinary course of business since the date of the
Waste2Energy Financial Statements;
(j) No Dividends. No dividends or other distributions on any shares in the
capital of Waste2Energy have been made, declared or authorized since
the date of the Waste2Energy Financial Statements;
WASTE2ENERGY - INCOME TAX MATTERS
(k) Tax Returns. All tax returns and reports of Waste2Energy required by
law to be filed have been filed and to the best of Waste2Energy's
knowledge and belief are true, complete and correct, and any taxes
payable in accordance with any return filed by Waste2Energy or in
accordance with any notice of assessment or reassessment issued by any
taxing authority have been so paid;
(l) Current Taxes. Adequate provisions have been made for taxes payable
for the current period for which tax returns are not yet required to
be filed and there are no agreements, waivers, or other arrangements
providing for an extension of time with respect to the filing of any
tax return by, or payment of, any tax, governmental charge or
deficiency by Waste2Energy. Waste2Energy is not aware of any
contingent tax liabilities or any grounds which would prompt a
reassessment including aggressive treatment of income and expenses in
filing earlier tax returns;
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WASTE2ENERGY - APPLICABLE LAWS AND LEGAL MATTERS
(m) Licenses. Waste2Energy holds all licenses and permits as may be
requisite for carrying on the Waste2Energy Business in the manner in
which it has heretofore been carried on, which licenses and permits
have been maintained and continue to be in good standing except where
the failure to obtain or maintain such licenses or permits would not
have a material adverse effect on the Waste2Energy Business;
(n) Applicable Laws. Waste2Energy has not been charged with or received
notice of breach of any laws, ordinances, statutes, regulations,
by-laws, orders or decrees to which it is subject or which applies to
it the violation of which would have a material adverse effect on the
Waste2Energy Business, and, to Waste2Energy's knowledge and belief,
Waste2Energy is not in breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees the contravention of which
would result in a material adverse impact on the Waste2Energy's
Business;
(o) Pending or Threatened Litigation. There is no material litigation or
administrative or governmental proceeding pending or threatened
against or relating to Waste2Energy, the Waste2Energy Business, or any
of the Waste2Energy Assets, nor does Waste2Energy have any knowledge
of any deliberate act or omission of Waste2Energy that would form any
material basis for any such action or proceeding;
(p) No Bankruptcy. Waste2Energy has not made any voluntary assignment or
proposal under applicable laws relating to insolvency and bankruptcy
and no bankruptcy petition has been filed or presented against
Waste2Energy and no order has been made or a resolution passed for the
winding-up, dissolution or liquidation of Waste2Energy;
(q) Labor Matters. Waste2Energy is not a party to any collective agreement
relating to the Waste2Energy Business with any labor union or other
association of employees and no part of the Waste2Energy Business has
been certified as a unit appropriate for collective bargaining or, to
the knowledge of Waste2Energy, has made any attempt in that regard and
Waste2Energy has no reason to believe that any current employees will
leave Waste2Energy's employ as a result of this Merger;
EXECUTION AND PERFORMANCE OF AGREEMENT
(r) Authorization and Enforceability. The execution and delivery of this
Agreement, and the completion of the transactions contemplated hereby,
have been duly and validly authorized by all necessary corporate
action on the part of Waste2Energy and the Waste2Energy Shareholders;
(s) No Violation or Breach. The execution and performance of this
Agreement will not
(i) violate the charter documents of Waste2Energy or result in any
breach of, or default under, any loan agreement, mortgage, deed
of trust, or any other agreement to which Waste2Energy is a
party,
(ii) except as provided in, contemplated by, or set forth in the PPM
or Subscription Agreements, give any person any right to
terminate or cancel any agreement including, without limitation,
Waste2Energy Material Contracts, or any right or rights enjoyed
by Waste2Energy,
(iii)except as provided in, contemplated by, or set forth in the PPM
or Subscription Agreements, result in any material alteration of
Waste2Energy's obligations under any agreement to which
Waste2Energy is a party including, without limitation, the
Waste2Energy Material Contracts,
(iv) result in the creation or imposition of any lien, encumbrance or
restriction of any nature whatsoever in favor of a third party
upon or against the Waste2Energy,
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(v) result in the imposition of any tax liability to Waste2Energy
relating to Waste2Energy Assets or the W2 Shares, or
(vi) violate any court order or decree to which Waste2Energy is
subject;
WASTE2ENERGY ASSETS - OWNERSHIP AND CONDITION
(t) No Option. Except as provided in, contemplated by, or set forth in the
PPM or Subscription Agreements, no person, firm or corporation has any
agreement or option or a right capable of becoming an agreement for
the purchase of any of the Waste2Energy Assets;
(u) Waste2Energy Material Contracts. Except as provided in, contemplated
by, or set forth in the PPM or Subscription Agreements, the
Waste2Energy Material Contracts constitute all of the material
contracts of Waste2Energy;
(v) No Default. There has not been any default in any material obligation
of Waste2Energy or any other party to be performed under any of the
Waste2Energy Material Contracts, each of which is in good standing and
in full force and effect and unamended, and Waste2Energy is not aware
of any default in the obligations of any other party to any of the
Waste2Energy Material Contracts;
WASTE2ENERGY ASSETS - WASTE2ENERGY GOODWILL AND OTHER ASSETS
(w) Waste2Energy does not have any knowledge of any infringement by
Waste2Energy of any patent, trademark, copyright or trade secret;
THE BUSINESS OF WASTE2ENERGY
(x) Maintenance of Business. Since the date of the Waste2Energy Financial
Statements, the Waste2Energy Business has been carried on in the
ordinary course, and Waste2Energy has not entered into any material
agreement or commitment except in the ordinary course or as provided
in, contemplated by, or set forth in the PPM or Subscription
Agreements; and
(y) Subsidiaries. Other than as provided on Schedule 5.1(y) annexed
hereto, Waste2Energy does not have any subsidiaries and does not
otherwise own, directly or indirectly, any shares or interest in any
other corporation, partnership, joint venture or firm.
NON-MERGER AND SURVIVAL
5.2 The representations and warranties of Waste2Energy contained herein will be
true at and as of Closing in all material respects as though such
representations and warranties were made as of such time. Notwithstanding the
completion of the transactions contemplated hereby, the waiver of any condition
contained herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by Maven the
representations and warranties of Waste2Energy shall survive the Closing for a
period of two (2) years.
INDEMNITY
5.3 Waste2Energy agrees to indemnify and save harmless Maven from and against
any and all claims, demands, actions, suits, proceedings, assessments,
judgments, damages, costs, losses and expenses, including any payment made in
good faith in settlement of any claim (subject to the right of Waste2Energy to
defend any such claim), resulting from the breach by Waste2Energy of any
representation or warranty of Waste2Energy made under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by Waste2Energy to Maven hereunder. Legal fees and
other costs of defending and prosecuting this action shall be borne by
Waste2Energy.
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ARTICLE 6
COVENANTS OF WASTE2ENERGY
COVENANTS
6.1 Waste2Energy covenants and agrees with Maven that it will:
(a) Conduct of Business. Until the Closing, conduct the Waste2Energy
Business diligently and in the ordinary course consistent with the
manner in which the Wast2Energy Business generally has been operated
up to the date of execution of this Agreement;
(b) Preservation of Business. Until the Closing, use its best efforts to
preserve the Waste2Enregy Business and the Waste2Energy Assets;
(c) Procure Consents. Until the Closing, take all reasonable steps
required to obtain, prior to Closing, any and all third party consents
required to permit the Merger and to preserve and maintain the
Waste2Energy Assets, including the Waste2Energy Material Contracts;
and
(d) Reporting and Internal Controls. From and after the Effective Time,
forthwith take all required actions to implement internal controls on
the business of the Surviving Company to ensure that the Surviving
Company complies with Section 13(b)(2) of the Exchange Act.
AUTHORIZATION
6.2 Waste2Energy hereby agrees to authorize and direct any and all federal,
state, municipal, foreign and international governments and regulatory
authorities having jurisdiction respecting Waste2Energy to release any and all
information in their possession respecting Waste2Energy to Maven. Waste2Energy
shall promptly execute and deliver to Maven any and all consents to the release
of information and specific authorizations which Maven requires to gain access
to any and all such information.
SURVIVAL
6.3 The covenants set forth in this Article shall survive the Closing for the
benefit of Maven.
ARTICLE 7
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT IN FAVOR OF MAVEN
7.1 Maven's obligations to carry out the transactions contemplated hereby are
subject to the fulfillment (or waiver by Maven) of each of the following
conditions precedent on or before the Closing:
(a) all documents or copies of documents and securities issuances and wire
transfers required to be executed and delivered to Maven as set forth
in Article 9 hereof will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be
complied with or performed by Waste2Energy at or prior to the Closing
will have been complied with or performed;
(c) title to the W2 Shares held by the Waste2Energy Shareholders will be
free and clear of all mortgages, liens, charges, pledges, security
interests, encumbrances or other claims whatsoever not created by or
through Maven and/or the Acquirer;
(d) the Certificates of Merger shall be executed by Waste2Energy in form
acceptable for filing with Secretary of State of Delaware;
16
(e) subject to Article 8 hereof, there will not have occurred:
(i) any material adverse change in the financial position or
condition of Waste2Energy, its liabilities or the Waste2Energy
Assets or any damage, loss or other change in circumstances
materially and adversely affecting the Waste2Energy Business or
the Waste2Energy Assets or Waste2Energy's right to carry on the
Waste2Energy Business, other than changes in the ordinary course
of business, none of which has been materially adverse, or
(ii) any damage, destruction, loss or other event, including changes
to any laws or statutes applicable to Waste2Energy or the
Waste2Energy Business (whether or not covered by insurance)
materially and adversely affecting Waste2Energy, the Waste2Energy
Business or the Waste2Energy Assets;
(f) the transactions contemplated hereby shall have been approved by all
other regulatory authorities having jurisdiction over the subject
matter hereof, if any; and
(g) all representations and warranties of Waste2Energy contained herein
shall be true and correct as of the Closing Date.
WAIVER BY MAVEN
7.2 The conditions precedent set out in the preceding section are inserted for
the exclusive benefit of Maven and any such condition may be waived in whole or
in part by Maven at or prior to Closing by delivering to Waste2Energy a written
waiver to that effect signed by Maven. In the event that the conditions
precedent set out in the preceding section are not satisfied on or before the
Closing, Maven shall be released from all obligations under this Agreement.
CONDITIONS PRECEDENT IN FAVOR OF WASTE2ENERGY
7.3 The obligations of Waste2Energy to carry out the transactions contemplated
hereby are subject to the fulfillment of each of the following conditions
precedent on or before the Closing:
(a) all documents or copies of documents required to be executed and
delivered to Waste2Energy or the Waste2Energy Shareholders hereunder
will have been so executed and delivered;
(b) the Maven Executive shall have tendered her resignation in a form
reasonably acceptable to Waste2Energy, and the Waste2Energy's
Shareholders' nominees shall have been appointed to Maven's board of
directors in a form reasonably acceptable to Waste2Energy;
(c) Maven shall have no liabilities (or all outstanding liabilities shall
be satisfied at Closing);
(d) all of the terms, covenants and conditions of this Agreement to be
complied with or performed by Maven or the Acquirer at or prior to the
Closing shall have been complied with or performed;
(e) the completion of the sale of Units (as defined in the PPM) in a
private placement by Maven for an aggregate purchase price of at least
$500,000 pursuant to and in accordance with the PPM;
(f) Waste2Energy shall have completed its review and inspection of the
books and records of Maven and its subsidiaries and shall be
reasonably satisfied with same in all material respects;
(g) Maven shall have delivered an irrevocable instruction letter to the
transfer agent to issue the Acquisition Shares to be issued pursuant
to the terms of the Merger to the Waste2Energy Shareholders and the
17
Acquisition Shares will be registered on the books of Maven in the
name of the Waste2Energy Shareholders at the Effective Time;
(h) Maven, Waste2Energy and the Maven Executive shall have executed a
separation agreement as of the time of execution of this Agreement (in
the form annexed hereto as Exhibit A) and, among other items, the
Maven Executive shall cancel 2,000,000 Maven Common Shares , in form
and substance reasonably satisfactory to Waste2Energy (the "SEPARATION
AGREEMENT"), such that immediately prior to Closing Maven has issued
and outstanding 1,000,000 Maven Common Shares;
(i) title to the Acquisition Shares will be free and clear of all
mortgages, liens, charges, pledges, security interests, encumbrances
or other claims whatsoever;
(j) the Certificates of Merger shall be executed by the Acquirer in form
acceptable for filing with the Secretary of State of Delaware;
(k) subject to Article 8 hereof, there will not have occurred
(i) any material adverse change in the financial position or
condition of Maven, its subsidiaries, their assets or liabilities
or any damage, loss or other change in circumstances materially
and adversely affecting Maven or the Maven Business or Maven's
right to carry on the Maven Business, other than changes in the
ordinary course of business, none of which has been materially
adverse, or
(ii) any damage, destruction, loss or other event, including changes
to any laws or statutes applicable to Maven or the Maven Business
(whether or not covered by insurance) materially and adversely
affecting Maven, its subsidiaries or its assets;
(l) the transactions contemplated hereby shall have been approved by all
other regulatory authorities having jurisdiction over the subject
matter hereof, if any; and
(m) all representations and warranties of Maven and the Acquirer contained
herein shall be true and correct as of the Closing Date.
(n) Maven shall prepare appropriate tax returns for Maven and any of its
subsidiaries as contemplated in Section 3.1(x) and shall submit such
return to Waste2Energy for its review and comment; Maven shall
incorporate any reasonable comments of Waste2Energy into such tax
returns and after Maven shall file such returns with the appropriate
jurisdiction. Maven shall pay and be responsible for all filing fees,
penalties and payments related to such tax returns.
WAIVER BY WASTE2ENERGY
7.4 The conditions precedent set out in the preceding section are inserted for
the exclusive benefit of Waste2Energy and any such condition may be waived in
whole or in part by Waste2Energy at or prior to the Closing by delivering to
Maven a written waiver to that effect signed by Waste2Energy. In the event that
the conditions precedent set out in the preceding section are not satisfied on
or before the Closing Waste2Energy shall be released from all obligations under
this Agreement.
NATURE OF CONDITIONS PRECEDENT
7.5 The conditions precedent set forth in this Article 7 are conditions of
completion of the transactions contemplated by this Agreement and are not
conditions precedent to the existence of a binding agreement. Each party
acknowledges receipt of the sum of $1.00 and other good and valuable
consideration as separate and distinct consideration for agreeing to the
conditions precedent in favor of the other party or parties set forth in this
Article 7.
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CONFIDENTIALITY
7.6 Notwithstanding any provision herein to the contrary, the parties hereto
agree that the existence and terms of this Agreement are confidential and that
if this Agreement is terminated pursuant to the preceding section the parties
agree to return to one another any and all financial, technical and business
documents delivered to the other party or parties in connection with the
negotiation and execution of this Agreement and shall keep the terms of this
Agreement and all information and documents received from Waste2Energy and Maven
and the contents thereof confidential and not utilize nor reveal or release
same, provided, however, that Maven may be required to issue news releases
regarding the execution and consummation of this Agreement and file a Current
Report on Form 8-K with the Commission respecting the proposed Merger
contemplated hereby together with such other documents as are required to
maintain the currency of Maven's filings with the Commission.
ARTICLE 8
RISK
MATERIAL CHANGE IN THE BUSINESS OF WASTE2ENERGY
8.1 If any material loss or damage to the Waste2Energy Business occurs prior to
Closing and such loss or damage, in Maven's reasonable opinion, cannot be
substantially repaired or replaced within sixty (60) days, Maven shall, within
two (2) days following any such loss or damage, by notice in writing to
Waste2Energy, at its option, either:
(a) terminate this Agreement, in which case no party will be under any
further obligation to any other party; or
(b) elect to complete the Merger and the other transactions contemplated
hereby, in which case the proceeds and the rights to receive the
proceeds of all insurance covering such loss or damage will, as a
condition precedent to Maven's obligations to carry out the
transactions contemplated hereby, be vested in Waste2Energy or
otherwise adequately secured to the satisfaction of Maven on or before
the Closing Date.
MATERIAL CHANGE IN THE MAVEN BUSINESS
8.2 If any material loss or damage to the Maven Business occurs prior to Closing
and such loss or damage, in Waste2Energy's reasonable opinion, cannot be
substantially repaired or replaced within sixty (60) days, Waste2Energy shall,
within two (2) days following any such loss or damage, by notice in writing to
Maven, at its option, either:
(a) terminate this Agreement, in which case no party will be under any
further obligation to any other party; or
(b) elect to complete the Merger and the other transactions contemplated
hereby, in which case the proceeds and the rights to receive the
proceeds of all insurance covering such loss or damage will, as a
condition precedent to Waste2Energy's obligations to carry out the
transactions contemplated hereby, be vested in Maven or otherwise
adequately secured to the satisfaction of Waste2Energy on or before
the Closing Date.
ARTICLE 9
CLOSING
CLOSING
9.1 The Merger and the other transactions contemplated by this Agreement will be
closed on or before June 30, 2009, in accordance with the closing procedure set
out in this Article 9.
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DOCUMENTS TO BE DELIVERED BY WASTE2ENERGY
9.2 On or before the Closing, Waste2Energy will deliver or cause to be delivered
to Maven:
(a) an executed copy of this Agreement;
(b) all reasonable consents or approvals required to be obtained by
Waste2Energy for the purposes of completing the Merger and preserving
and maintaining the interests of Waste2Energy under any and all
Waste2Energy Material Contracts and in relation to Waste2Energy
Assets;
(c) an officers certificate containing articles, bylaws, and certified
copies of such resolutions of the shareholders and directors of
Waste2Energy as are required to be passed to authorize the execution,
delivery and implementation of this Agreement;
(d) an acknowledgment from Waste2Energy of the satisfaction of the
conditions precedent set forth in Section 7.3; and
(e) such other documents as Maven reasonably require to give effect to the
terms and intention of this Agreement.
(f) the Separation Agreement executed by Maven, Waste2Energy and the Maven
Executive.
DOCUMENTS TO BE DELIVERED BY MAVEN
9.3 On or before the Closing, Maven and the Acquirer shall deliver or cause to
be delivered to Waste2Energy:
(a) an executed copy of this Agreement;
(b) an irrevocable instruction letter to the transfer agent to issue share
certificates representing the Acquisition Shares duly registered in
the names of the Waste2Energy Shareholders;
(c) warrants certificates representing the Acquisition Warrants duly
registered in the name of the Waste2Energy Warrant Holders;
(d) proof that it has completed the funding of at least $500,000 in a
private placement conducted pursuant to and in accordance with the
PPM;
(e) an officers certificate containing articles, bylaws, and certified
copies of such resolutions of the directors of Maven and the Acquirer
as are required to be passed to authorize the execution, delivery and
implementation of this Agreement;
(f) a certified copy of a resolution of the directors of Maven dated as of
the Closing Date appointing the nominees of the Waste2Energy
Shareholders to the board of directors of Maven;
(g) resignation of the Maven Executive in a form reasonably acceptable to
Waste2Energy;
(h) the Separation Agreement executed by Maven, Waste2Energy and the Maven
Executive;
(i) proof of the cancellation of 2,000,000 Maven Common Shares by the
Maven Executive;
(j) an opinion of counsel to Maven reasonably acceptable to Waste2Energy;
(k) proof of the filing of all tax returns referred to in Section 3.1(x)
in the appropriate jurisdictions for Maven and any of its
subsidiaries;
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(l) an acknowledgement from Maven of the satisfaction of the conditions
precedent set forth in Section 7.1 hereof; and
(m) such other documents asWaste2Energy may reasonably require to give
effect to the terms and intention of this Agreement.
ARTICLE 10
POST-CLOSING MATTERS
GENERAL
10.1 Forthwith after the Closing, Maven and Waste2Energy agree to use all their
best efforts to:
(a) file the Certificates of Merger with the Secretary of State of
Delaware; and
(b) issue a news release reasonably acceptable to each party reporting the
Closing; and
(c) file a Form 8-K with the Commission disclosing the terms of this
Agreement which includes audited financial statements of Waste2Energy
as well as pro forma financial information of Waste2Energy and Maven
as required by Regulation S-X as promulgated by the Commission (all at
no cost to the Waste2Energy Shareholders); and
(d) take such steps as required to change the name of Maven to
"Waste2Energy Holdings, Inc." as of the earliest practical date
following the date hereof but in any event within 45 days of the
Closing;
ARTICLE 11
GENERAL PROVISIONS
ARBITRATION
11.1 The parties hereto shall attempt to resolve any dispute, controversy,
difference or claim arising out of or relating to this Agreement by negotiation
in good faith. If such good negotiation fails to resolve such dispute,
controversy, difference or claim within thirty (30) days after any party
delivers to any other party a notice of its intent to submit such matter to
arbitration, then any party to such dispute, controversy, difference or claim
may submit such matter to arbitration.
Any action or proceeding seeking to enforce any provision of, or based upon
any right arising out of, this Agreement shall be settled by binding arbitration
by a panel of three (3) arbitrators in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and governed by the
laws of the State of Delaware (without regard to the choice-of-law rules or
principles of that jurisdiction). Judgment upon the award may be entered in any
court located in the State of New York, and all the parties hereto hereby
expressly waive any objections or defense based upon lack of personal
jurisdiction.
Each of the plaintiff and defendant party to the arbitration shall select
one (1) arbitrator (or where multiple plaintiffs and/or defendants exist, one
(1) arbitrator shall be chosen collectively by such parties comprising the
plaintiffs and one (1) arbitrator shall be chosen collectively by those parties
comprising the defendants) and then the two (2) arbitrators shall mutually agree
upon the third arbitrator. Where no agreement can be reached on the selection of
either a third arbitrator or an arbitrator to be named by either a group of
plaintiffs or a group of defendants, any implicated party may apply to a judge
of the courts of the State of New York, to name an arbitrator. Process in any
such action or proceeding may be served on any party anywhere in the world.
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INDEMNIFICATION PROVISIONS
11.2 Notice to Indemnifying Party. If any party (the "INDEMNITEE") receives
notice of any claim or the commencement of any action or proceeding with respect
to which the other party (or parties) is obligated to provide indemnification
(the "INDEMNIFYING PARTY") pursuant to Section 3.3 or Section 5.3 hereof, the
Indemnitee shall give the Indemnifying Party written notice thereof within a
reasonable period of time following the Indemnitee's receipt of such notice.
Such notice shall describe the claim in reasonable detail and shall indicate the
amount (estimated if necessary) of the losses that have been or may be sustained
by the Indemnitee. The Indemnifying Party may, subject to the other provisions
of this Section 11.2, compromise or defend, at such Indemnifying Party's own
expense and by such Indemnifying Party's own counsel, any such matter involving
the asserted liability of the Indemnitee in respect of a third-party claim. If
the Indemnifying Party elects to compromise or defend such asserted liability,
it shall within thirty (30) days (or sooner, if the nature of the asserted
liability so requires) notify the Indemnitee of its intent to do so, and the
Indemnitee, shall reasonably cooperate, at the request and reasonable expense of
the Indemnifying Party, in the compromise of, or defense against, such asserted
liability. The Indemnifying Party will not be released from any obligation to
indemnify the Indemnitee hereunder with respect to a claim without the prior
written consent of the Indemnitee, unless the Indemnifying Party delivers to the
Indemnitee a duly executed agreement settling or compromising such claim with no
monetary liability to or injunctive relief against the Indemnitee and a complete
release of the Indemnitee with respect thereto. The Indemnifying Party shall
have the right to conduct and control the defense of any third-party claim made
for which it has been provided notice hereunder. All costs and fees incurred
with respect to any such claim will be borne by the Indemnifying Party. The
Indemnitee will have the right to participate, but not control, at its own
expense, the defense or settlement of any such claim; provided, that if the
Indemnitee and the Indemnifying Party shall have conflicting claims or defenses,
the Indemnifying Party shall not have control of such conflicting claims or
defenses and the Indemnitee shall be entitled to appoint a separate counsel for
such claims and defenses at the cost and expense of the Indemnifying Party. If
the Indemnifying Party chooses to defend any claim, the Indemnitee shall make
available to the Indemnifying Party any books, records or other documents within
its control that are reasonably required for such defense.
NOTICE
11.3 Any notice required or permitted to be given by any party will be deemed to
be given when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid certified or registered mail, or
Facsimile. Any notice delivered by mail shall be deemed to have been received on
the fourth business day after and excluding the date of mailing, except in the
event of a disruption in regular postal service in which event such notice shall
be deemed to be delivered on the actual date of receipt. Any notice delivered
personally or by Facsimile shall be deemed to have been received on the actual
date of delivery.
ADDRESSES FOR SERVICE
11.4 The address for service of notice of each of the parties hereto is as
follows:
(a) Maven or the Acquirer:
Maven Media Holdings, Inc.
1649 Dartmouth Street
Chula Vista, CA 91913
Attn: Adrienne Humphreys, President
Phone: (619) 866-6160
Fax: (509) 847-6160
With a copy to:
Karen Batcher
Synergn Law Group, APC
744 Otay Lakes Road #143
Chula Vista, CA 91910
Phone: (619) 475-7882
Fax: (619) 512-5184
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(b) Waste2Energy:
Waste2Energy, Inc.
1185 Avenue of the Americas, 20th Floor
New York, New York 10036
Attn: Christopher d'Arnaud-Taylor, Chief Executive Officer
Phone: (646) 723-4000
Facsimile: (646) 723-4001
With a copy to:
Sichenzia Ross Friedman Ference LLP
61 Broadway
New York, New York 10006
Attn: Marc Ross, Esq.
Phone: (212) 930-9700
Telecopier: (212) 930-9725
CHANGE OF ADDRESS
11.5 Any party may, by notice to the other parties change its address for notice
to some other address in North America and will so change its address for notice
whenever the existing address or notice ceases to be adequate for delivery by
hand. A post office box may not be used as an address for service.
FURTHER ASSURANCES
11.6 Each of the parties will execute and deliver such further and other
documents and do and perform such further and other acts as any other party may
reasonably require to carry out and give effect to the terms and intention of
this Agreement.
TIME OF THE ESSENCE
11.7 Time is expressly declared to be the essence of this Agreement.
ENTIRE AGREEMENT
11.8 The provisions contained herein constitute the entire agreement among
Waste2Energy, the Acquirer and Maven, respecting the subject matter hereof and
supersede all previous communications, representations and agreements, whether
verbal or written, among Waste2Energy, the Acquirer and Maven with respect to
the subject matter hereof.
ENUREMENT
11.9 This Agreement will enure to the benefit of and be binding upon the parties
hereto and their respective heirs, executors, administrators, successors and
permitted assigns.
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ASSIGNMENT
11.10 This Agreement is not assignable without the prior written consent of the
parties hereto.
EXPENSES
11.11 Each party agrees to pay, without right of reimbursement from any other
party and regardless of whether or not the transaction is consummated, the costs
incurred by it in connection with this transaction, including legal fees and
other costs incidental to the negotiation of the terms of the transaction and
the preparation of related documentation; notwithstanding anything to the
contrary herein.
COUNTERPARTS
11.12 This Agreement may be executed in counterparts, each of which when
executed by any party will be deemed to be an original and all of which
counterparts will together constitute one and the same Agreement. Delivery of
executed copies of this Agreement by Facsimile will constitute proper delivery,
provided that originally executed counterparts are delivered to the parties
within a reasonable time thereafter.
APPLICABLE LAW
11.13 This Agreement and all issues arising out of or relating to this Agreement
will be governed by and construed solely and exclusively under the laws of the
State of New York as applied to agreements among New York residents and entered
into and to be performed entirely within New York. .
TERMINATION
11.14 This Agreement may only be terminated at any time prior to the Closing
Date:
(a) upon mutual written consent authorized by the Board of Directors of
Maven and Waste2Energy; or
(b) by either Maven or Waste2Energy if the Closing shall not have been
consummated by the close of business on June 30, 2009.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF the parties have executed this Agreement effective as of the
day and year first above written.
MAVEN MEDIA HOLDINGS, INC.
By: /s/ Adrienne Humphreys
------------------------------------------
Adrienne Humphreys
President
WASTE2ENERGY ACQUSITION CO.
By /s/ Adrienne Humphreys
------------------------------------------
Adrienne Humphreys
President
WASTE2ENERGY, INC.
By: /s/ Christopher d'Arnaud-Taylor
------------------------------------------
Christopher d'Arnaud-Taylor
Chief Executive Officer
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