SHARE EXCHANGE AGREEMENT DATED AS OF MARCH 10, 2010 between INTERNATIONAL CELLULAR ACCESSORIES and IMAGE METRICS LIMITED
Exhibit
2.1
DATED
AS OF MARCH 10, 2010
between
and
IMAGE
METRICS LIMITED
This
Share Exchange Agreement (the “Agreement”) is
entered into as of March 10, 2010, between International Cellular Accessories, a
Nevada corporation (“ICLA”), and Image
Metrics Limited, a corporation organized under the laws of England and Wales
(“Image
Metrics”).
WITNESSETH
WHEREAS,
ICLA desires to enter into a transaction pursuant to which it would issue to the
shareholders of Image Metrics, upon the terms and conditions set forth herein,
11,851,637 shares of its common stock, par value $.001 per share (the “Shares”), at Closing
(as defined in Section 2(a)), and reserve for future issuance 2,923,780 Shares
and 224,583 Shares upon the exercise of outstanding stock options and warrants,
respectively, of Image Metrics, in exchange for all of the issued and
outstanding common shares and preferred shares of Image Metrics, concurrently
with the issuance of such number of Shares as shall be required to be sold by
ICLA to raise a minimum of $8,000,000 in equity financing for the combined
entity, as contemplated by the Confidential Private Placement Memorandum dated
January 26, 2010 (as amended or supplemented from time to time, the “Memorandum”);
NOW,
THEREFORE, for the consideration herein stated and in further consideration of
the premises and the mutual agreements, covenants and provisions herein
contained, the parties hereto agree as follows:
1. The
Transaction.
(a) Issue of
Shares. Subject to the terms and conditions herein contained,
ICLA agrees to issue to the shareholders of Image Metrics the Shares, free and
clear of any lien, encumbrance, equity or adverse claim, all of which upon the
issuance thereof in accordance herewith, shall be fully paid and
non-assessable.
(b) ICLA
Transactions. On or prior to the Closing Date, ICLA shall
enter into one or more transactions (collectively, “ICLA Transactions”)
pursuant to which its existing obligations will either be terminated or assigned
to third parties.
(c) Offer to Image Metrics
Shareholders. In connection herewith, Image Metrics shall have
caused to be mailed to each shareholder of record of Image Metrics the
Recommended Offer by ICLA to acquire the entire issued share capital of Image
Metrics (the “Offer”), in
substantially the form attached hereto as Exhibit A, which
shall have contained a letter from the Chief Executive Officer of Image Metrics,
including the recommendation of the Board of Image Metrics to accept the Offer,
and the Form of Acceptance. Image Metrics confirms that it had
received irrevocable undertakings to accept the Offer from Saffron Hill Ventures
in respect of its entire beneficial shareholdings amounting to in excess of
65.5% of the shares of Image Metrics.
(d) Change of
Name. ICLA acknowledges that a condition precedent to a
closing of this Agreement is a change of its corporate name to Image Metrics,
Inc.
2. The
Closing.
(a) Time and Place of
Closing. The consummation of the transfer of the Shares shall
occur at a closing (the “Closing”) to be held
at the offices of Image Metrics’ U.S. counsel, or such other place, time and
date as may be mutually agreed upon by ICLA and Image Metrics. Such
date is herein sometimes referred to as the “Closing
Date.”
(b) Action to be
Taken. Upon satisfaction of the conditions of Closing set
forth in this Agreement, ICLA shall execute and deliver to Image Metrics duly
executed stock certificates for the Shares, duly registered in the names of the
shareholders of Image Metrics and dated as of the Closing Date.
3. Representations and
Warranties of ICLA. ICLA represents and warrants to Image
Metrics as follows:
(a) Organization. ICLA
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada and is duly qualified to do business and in good
standing in each jurisdiction where such qualification is
required. ICLA has all requisite corporate power and authority to
conduct its business as presently being conducted and as proposed to be
conducted and to own properties. ICLA has all requisite corporate
power and authority to execute, deliver and perform all of its obligations under
this Agreement.
(b) Authority. The
execution and delivery by ICLA of this Agreement, the performance of its
obligations hereunder and the consummation by ICLA of the transactions
contemplated or referenced hereby:
(i) have
been duly authorized by all necessary corporate action, do not contravene any
provision of ICLA’s Articles of Incorporation or By-laws, and do not require
ICLA to obtain any consents, approvals or authorizations which have not been
obtained;
(ii)
do not violate any provision of any law,
rule or regulation;
(iii) do
not and will not result in a breach or constitute a default under any material
agreement to which ICLA is a party or by which any of its properties are bound,
including, without limitation, any indenture, loan or credit agreement, lease,
debt instrument or mortgage; and
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(iv) do
not result in or require the creation or imposition of any mortgage, deed of
trust, pledge, lien, security interest or other charge or encumbrance of any
nature upon or with respect to any of the properties owned by ICLA.
This
Agreement has been duly executed and delivered by ICLA and constitutes the
legal, valid and binding obligation of ICLA enforceable in accordance with its
terms, subject to the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors’ rights or remedies generally.
(c) No
Default. ICLA (i) is not in default under any law, rule or
regulation, order, writ, judgment, injunction, decree, determination, award,
indenture, loan or credit agreement, lease, debt instrument or mortgage or any
other agreement of ICLA, (ii) is not aware of any fact, circumstance, condition
or other state of affairs that, with the giving of notice or the lapse of time,
will constitute such default, and (iii) will not be in any such default by
virtue of the transactions contemplated hereby.
(d) The
Shares.
(i) The
Shares will have been duly and validly authorized by all necessary action on the
part of ICLA as of the Closing Date.
(ii) When
issued and delivered pursuant to this Agreement, the Shares will be duly and
validly issued, fully paid and non-assessable.
(iii) The
issuance, sale and delivery of the Shares are not subject to any pre-emptive
right of stockholders of ICLA arising under law or the Articles of Incorporation
or By-laws or any contractual right of first refusal or other right in favor of
any person.
(e) Authorized
Capital. The authorized capital stock of ICLA consists of
75,000,000 shares of Common Stock and [10,000,000] shares of unclassified
Preferred Stock. Except as set forth in the Annual Report on Form
10-K of ICLA for the year ended December 31, 2009, there are no existing
options, warrants, contracts, calls, commitments, demands or other agreements of
any character to which ICLA is a party relating to the authorized and issued or
unissued capital stock of ICLA. All of the Shares which are issued
and outstanding are fully paid and non-assessable. At no time has
ICLA issued any capital stock not duly authorized on the date of issuance
thereof. All outstanding shares of ICLA’s Common Stock have been
issued in compliance with all applicable federal and state securities
laws. On the Closing Date, ICLA will have a maximum of 4,000,000
shares of Common Stock issued and outstanding and no shares of Preferred Stock
issued and outstanding.
(f) Subsidiaries, Affiliates and
Joint Ventures. On the Closing Date, ICLA shall not own or
control, directly or indirectly, any interest in, or any commitment to acquire
any such interest in, any corporation, firm, partnership or organization and
shall not be a party to any joint venture or similar
affiliation.
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(g) Consents and
Approvals. The execution and delivery by ICLA of this
Agreement, the performance by ICLA of its obligations hereunder and the
consummation by ICLA of the transactions contemplated hereby do not require ICLA
to obtain any consent, approval or action of, or make any filing with or give
any notice to, any corporation, person or firm or any public, governmental or
judicial authority.
(h) Litigation. There
is no action, suit, claim, proceeding or investigation pending or to the best of
the knowledge of the officers of ICLA, threatened against ICLA that could either
individually or in the aggregate have a material adverse effect on assets of
ICLA, or result in any change in the current equity ownership of
ICLA. There is no action, suit, proceeding or investigation of ICLA
currently pending or that ICLA intends to initiate.
(i) Intellectual
Property. ICLA does not own any licenses, patents (and
applications therefor), patent disclosures, trademarks, service marks, trade
names, copyrights (and applications therefor), inventions, discoveries,
processes, know-how, scientific, technical, engineering and marketing data,
formulae and techniques (collectively, the “Intellectual
Property”). ICLA is not currently obligated or under any
existing liability to make royalty or other payments to any owner of, licensor
of, or other claimant to, any patent, trademark, service names, trade names,
copyrights, or other intangible asset, with respect to the use thereof or in
connection with the conduct of its business as conducted prior to the Closing,
or otherwise. ICLA has not received any claim or any written
communications alleging that ICLA has violated or would violate any of the
Intellectual Property of any other person or entity.
(j) Agreements. ICLA
is not a party to, or in any way obligated under, nor is any property or asset
of ICLA subject to, any contract, lease or other obligation, absolute or
contingent.
(k) Properties. ICLA
does not own or lease any properties or assets.
(l) Licenses. ICLA
does not have any licenses and permits (federal, state, foreign and
local). Prior to the Closing, no violations have been communicated to
ICLA in respect of any licenses or permits and no proceeding is pending or, to
the knowledge of the officers of ICLA, threatened toward the revocation of any
such licenses or permits.
(m) Financial
Statements. ICLA will deliver to Image Metrics its audited
balance sheets as of December 31, 2009 and 2008 and the related
statements of operations, stockholders’ equity (deficiency) and cash flows for
the years then ended (hereinafter collectively referred to as the “ICLA Financial
Statements”). The ICLA Financial Statements present fairly the
financial position of ICLA, if any, as at the respective dates thereof and the
related statements of operations, stockholders’ equity (deficiency) and cash
flows for the years ended on such dates fairly present the results of
operations, stockholders’ equity and accumulated deficit, and cash flows for the
respective periods covered thereby. The ICLA Financial Statements,
including the schedules and notes thereto, were prepared in accordance with
United States generally accepted accounting principles (“US GAAP”),
consistently applied throughout the periods indicated.
When
delivered, the books and records of ICLA will fairly reflect its assets,
liabilities and operations.
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Except as
contemplated in this Agreement, since the respective dates of the ICLA Financial
Statements, there has been no material adverse change in the financial condition
or operations of ICLA nor has there been any event which has occurred on or
prior to the date hereof which in any way has or which will have such a material
adverse effect.
(n) Guarantees. ICLA
is not a guarantor or indemnitor of any indebtedness of any other person, firm
of corporation.
(o) Accounting. ICLA
maintains and will continue to maintain a standard system of accounting
established and administered in accordance with US GAAP.
(p) Undisclosed
Liabilities. Except as and to the extent reflected or reserved
against in the ICLA Financial Statements, ICLA did not have, as of the
respective dates of the ICLA Financial Statements, any debts, liabilities or
obligations of any nature, whether accrued, absolute, contingent or otherwise,
and whether due or to become due, including, without limitation, liabilities or
obligations on account of taxes or other governmental charges or penalties,
interest or fines thereon or in respect thereof. Since the respective
dates of the ICLA Financial Statements, ICLA has not incurred any liabilities or
obligations outside the ordinary course of business. ICLA does not
know of any basis for the assertion against it of any debt, liability or
obligation not fully reflected or reserved against in the ICLA Financial
Statements.
(q) Intercompany and Affiliate
Transactions; Insider Interests. There are no transactions,
intercompany agreements or arrangements of any kind, direct or indirect, between
ICLA and any director, officer, employee, stockholder or relative or affiliate
thereof, including, without limitation, loans, guarantees or pledges to, by or
for ICLA from, to, by or for any of such persons, that will be in effect on the
Closing Date.
(r) Taxes. ICLA
has:
(i) filed
or will file all tax returns required to be filed by any jurisdiction to which
it is or has been subject;
(ii) paid
or will pay in full all taxes due and all taxes claimed to be due by each such
jurisdiction, and any interest and penalties with respect thereto, subject to
audit by the taxing authority of such jurisdiction;
(iii) accrued
or will accrue on its books all taxes for any period which are not yet due;
and
(iv) will
make payments of the taxes required to be deducted and withheld from the wages
paid to its employees.
All
federal, state, county and local tax returns, schedules, declarations and other
tax-related documents filed by ICLA correctly reflect income, expense,
deductions, credits and loss carryovers of ICLA. ICLA has not
received any notice of deficiency or assessment or proposed deficiency or
assessment from any federal, state, local or foreign taxing authority which has
not been paid. There are no agreements, consents or waivers by ICLA
for the extension of the time for the assessment of any taxes or deficiencies
against or with respect to its operations or assets, and no power of attorney
granted by ICLA with respect to any matter relating to taxes is currently in
force.
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(s) Insurance. ICLA
has no contracts of insurance in force on the Closing Date.
(t) Employee Benefit
Plans. ICLA does not maintain or contribute to, and has not
heretofore maintained or contributed to, any “employee benefit plan,” including,
but not limited to, any option, bonus, percentage compensation, profit sharing,
deferred compensation, retirement, pension or union plan, or any other
agreement, policy or practice providing pension or welfare benefits to its
current or former employees.
(u) Compliance with Applicable
Laws. The operations of ICLA have been conducted in accordance
with all applicable laws, regulations, orders and other requirements of all
courts and other governmental or regulatory authorities having jurisdiction over
ICLA, and its assets, properties and operations. ICLA has not
received notice of any violation of any such law, regulation, order or other
legal requirements, or is in default with respect to any order, writ, judgment,
award, injunction or decree of any federal, state or local court or governmental
or regulatory authority or arbitrator, domestic or foreign, applicable to ICLA
or any of its assets, properties or operations.
(v) No Material Adverse
Change. Except as contemplated by this Agreement, since
December 31, 2009, there has been no change in the business, properties, assets,
condition (financial or otherwise), liabilities or operations of ICLA, which,
individually or in the aggregate, has had, or is reasonably likely to have, a
material adverse effect on the business or financial condition of
ICLA. ICLA is not aware of any fact or facts which, individually or
in the aggregate, is or are reasonably likely to have a material adverse effect
on its business or financial condition.
(w) Accuracy of
Information. None of the representations, warranties or
statements of ICLA contained in this Agreement, or in the schedules or exhibits
hereto, contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make any of such representations, warranties
or statements not misleading. All information relating to ICLA which
is known or would on reasonable inquiry be known to ICLA or to ICLA’s directors
or officers and which may be material to a purchaser of the Shares has been
disclosed in writing to Image Metrics and any such information arising on or
before the Closing Date will forthwith be disclosed in writing to Image
Metrics.
(x) Securities Laws; Restricted
Securities. None of the Shares have been registered under the
Securities Act of 1933, as amended (the “Act”), or applicable
state securities laws. The Shares have not been registered under the
Act and are characterized as “restricted securities” under the
Act. Therefore, they cannot be sold or transferred unless
subsequently registered under the Act or an exemption from such registration is
available. In this connection, Image Metrics and ICLA represent that
they are familiar with Rule 144 promulgated under the Act and understand the
resale limitations imposed thereby.
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(y) Quoted
Shares. ICLA’s Common Stock is quoted on the OTC Bulletin
Board and neither ICLA nor any of its shareholders is aware of any reason why
such stock may be delisted.
4. Representations and
Warranties of Image Metrics. Image Metrics represents and
warrants to ICLA as follows:
(a) Image
Metrics is a corporation duly organized, validly existing and in good standing
under the laws of England and Wales and is duly qualified to do business and in
good standing in each jurisdiction where such qualification is
required. Image Metrics has all requisite corporate power and
authority to conduct its business as presently being conducted and as proposed
to be conducted and to own properties. Image Metrics has all
requisite corporate power and authority to execute, deliver and perform all of
its obligations under this Agreement.
(b) This
Agreement has been duly executed and delivered by Image Metrics and constitutes
the legal, valid and binding obligation of Image Metrics enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws now or hereafter
in effect relating to or affecting creditors’ rights or remedies
generally.
(c) No
Default. Image Metrics (i) is not in default under any law,
rule or regulation, order, writ, judgment, injunction, decree, determination,
award, indenture, loan or credit agreement, lease, debt instrument or mortgage
or any other agreement of Image Metrics, (ii) is not aware of any fact,
circumstance, condition or other state of affairs that, with the giving of
notice or the lapse of time, will constitute such default, and (iii) will not be
in any such default by virtue of the transactions contemplated
hereby.
(d) Authorized
Capital. The authorized capital stock of Image Metrics
consists of Ordinary shares, A Ordinary shares, Preferred Ordinary shares and
Series B Preferred Ordinary shares, of which 2,125,197, 300,607, 1,567,178 and
2,358,783 shares are issued and outstanding, respectively. All of the
Shares which are issued and outstanding are fully paid and non-assessable and
validly issued.
(e) Necessary Authorization and
Approval. Image Metrics has full corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. All acts and other proceedings required to be
taken by or on the part of Image Metrics to authorize it to carry out this
Agreement and the transactions contemplated hereby have been duly and properly
taken. This Agreement has been duly executed and delivered by Image
Metrics and constitutes the legal, valid and binding obligation of Image Metrics
in accordance with its terms, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws now or hereafter
in effect relating to or affecting creditors’ rights or remedies
generally. Neither the execution, delivery or performance of this
Agreement nor the consummation of the transactions contemplated hereby is
prohibited by, or requires Image Metrics to obtain any consent, authorization,
approval or registration under any law, rule or regulation, other than as
contemplated hereby, or any judgment, order, writ, injunction or decree, which
is binding on Image Metrics or the terms of any contract to which Image Metrics
is a party.
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(f) Stock
Legend. Image Metrics and its shareholders understand that the
certificates evidencing the Shares will bear a legend substantially as
follows:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT OF 1933
OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED.”
(g) Access to
Information. Image Metrics has been given access to
information regarding ICLA, including, in particular, the current financial
condition of ICLA, and the risks associated therewith, and has utilized such
access to its satisfaction for the purpose of obtaining information about
ICLA.
(h) Sophistication. Image
Metrics and its shareholders represent that they are sophisticated investors,
and fully understand the transactions contemplated by this Agreement, and have
such knowledge and experience in financial and business matters that they are
capable of evaluating the merits and risks of the prospective investment in the
Shares.
(i) Private Placement
Memorandum. As to Image Metrics only, the Memorandum does not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not misleading,
except to the extent modified by the terms of this Agreement.
(j) Image Metrics Financial
Statements. Image Metrics will deliver to ICLA its audited
balance sheet and the related statements of operations, stockholders’ equity
(deficiency) and cash flows for the 12 months ended September 30, 2009 and 2008,
and unaudited interim financial statements for the three months ended December
31, 2009 (hereinafter collectively referred to as the “Image Metrics Financial
Statements”). The Image Metrics Financial Statements present
fairly the consolidated financial position of Image Metrics and subsidiaries, if
any, as at the respective dates thereof and the related statements of
operations, stockholders’ equity (deficiency) and cash flows for the 12 months
ended on such dates fairly present the results of operations, stockholders’
equity and accumulated deficit, and cash flows for the respective periods
covered thereby. The Image Metrics Financial Statements, including
the schedules and notes thereto, were prepared in accordance with United States
generally accepted accounting principles (“US GAAP”)
consistently applied throughout the periods indicated, and that the audited
financial statements shall comply with all requirements of the U.S. Securities
and Exchange Commission and the certification requirements of the U.S. Public
Company Accounting Oversight Board (PCAOB).
When
delivered, the books and records of Image Metrics will fairly reflect its
assets, liabilities and operations.
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Except as
contemplated in this Agreement, since the respective dates of the Financial
Statements, there has been no material adverse change in the financial condition
or operations of Image Metrics nor has there been any event which has occurred
on or prior to the date hereof which in any way has or which will have such a
material adverse effect.
5. Delivery of Documentation by
ICLA to Image Metrics.
ICLA has
delivered or made available to Image Metrics the following documents relating to
ICLA:
(a) Charter
Documents. Copies of (i) its Articles of Incorporation, as
amended to date, certified by the Secretary of State for the State of Nevada and
(ii) the By-laws of ICLA, certified as true, correct and complete by an
appropriate officer of ICLA.
(b) Salaries and Employment
Agreements. Except as set forth herein and as of the Closing
Date, ICLA will have no liabilities (i) to any current or former directors,
officers, employees or agents of, or any consultant to, ICLA or (ii) under any
defined benefit and defined contribution pension or retirement plan, stock
ownership plan, employment or consulting agreement, executive compensation plan,
bonus plan, incentive compensation plan or arrangement, deferred compensation
agreement or arrangement, agreement with respect to temporary employees or
leased employees, vacation pay, sickness, disability or death benefit plan
(whether provided through insurance, on a funded or unfunded basis or
otherwise), employee stock option or stock purchase plan, severance pay plan,
arrangement or practice, change in control agreement, retention plan or
agreement, retiree medical or life insurance benefits plan, each other employee
benefit plan, program or arrangement.
(c) Insurance. As
of the Closing Date, ICLA will have no insurance policies pertaining to the
operations or business of Image Metrics currently in effect.
(d) Other
Assets. A list of all items of machinery, equipment,
furniture, fixtures and leasehold improvements having a cost per item in excess
of $1,000 as recorded in the books of account and records of ICLA reflected in
the ICLA Financial Statements, and all additions made thereafter having a cost
per item in excess of $1,000.
(e) Contracts. A
list, together with copies thereof if written or a description if oral, of each
written or oral contract or agreement other than those described in one of the
other schedules delivered pursuant hereto.
(f) Bank Accounts and Powers of
Attorney, etc. A list of the name and address of each bank,
together with the name and number of each account, in which ICLA has an account
or safe-deposit box, the names of all persons authorized to draw thereon or to
have access thereto, and the names of any persons holding powers of attorney
with respect to the business of ICLA and a summary of the terms
thereof.
(g) Loan Agreements;
Liens. A list, together with copies, of agreements, notes,
instruments or other documents relating to indebtedness of or to ICLA (other
than open accounts payable), or money borrowed, or money loaned, or issued by or
to ICLA, including all mortgages, loan, credit, surety, guarantee, and
lease-purchase arrangements or other financing agreements to which Image Metrics
is a party; and (B) all conditional sales contracts, chattel mortgages and other
security agreements or arrangements with respect to personal property used or
owned by Image Metrics.
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(h) Litigation and Certain Other
Matters. A list, together with a summary, of all litigation,
arbitration or administrative proceedings and governmental investigations
pending or, to the knowledge of ICLA, threatened against ICLA or as to which
ICLA is a party.
(i) Certain
Transactions. A list and description, together with a copy of
any agreement, of all transactions or any presently proposed transactions to
which ICLA or any of its directors, officers or shareholders (or any relative or
spouse of any director, officer or shareholder of ICLA) was or is to be a
party.
(j) Indemnification
Agreements. A list and copies of any indemnification
agreements and insurance policies relating thereto to which officers and/or
directors of ICLA, in their capacities as such, are parties.
(k) Tax
Returns. Complete and correct copies of all federal, state and
local income, franchise and other tax returns related to the operations of ICLA
for each fiscal year since December 31, 2007, together with complete and correct
copies of all reports of tax authorities relating to examinations of such
returns.
(l) Licenses, Permits,
etc. A list, together with copies, of all licenses, permits,
certificates, approvals, authorizations and/or orders acquired by ICLA,
including, without limitation, all licenses, permits, certificates approvals,
authorizations and orders, required to be obtained from any federal, state or
local government or governmental agency or authority relating to the business of
ICLA.
(m) Return of
Documents. In the event that the Closing shall not take place
hereunder, Image Metrics agrees that it will return promptly to ICLA or cause to
be destroyed all documents (including copies thereof) which shall have been
furnished to Image Metrics, or any of its advisors or counsel in connection with
the transactions contemplated by this Agreement and will hold in strict
confidence and will not use or disclose to any third party any confidential
information concerning ICLA obtained from such documents or otherwise in
connection with the transactions contemplated hereby (except as may be required
by law or regulations or unless and until such time as ICLA shall have advised
Image Metrics that such information is not confidential). In the
event that Image Metrics elects to destroy such documents, it shall furnish
certificates from appropriate authorized representatives of Image Metrics, its
advisors or counsel to the effect that all such copies have been so
destroyed.
6. Conditions Precedent to the
Closing.
(a) Conditions Precedent to the
Obligations of ICLA. All obligations of ICLA under this
Agreement with respect to the exchange of the Shares on the Closing Date are
subject to the fulfillment, prior to or at the Closing, of each of the following
conditions, except to the extent that ICLA may waive any one or more
thereof:
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(i) The
representations and warranties of Image Metrics contained in this Agreement
(including the information contained in the schedules delivered pursuant to this
Agreement) shall be true on and as of the Closing Date, with the same effect as
if said representations and warranties had been made on and as of the Closing
Date; Image Metrics shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing; except as otherwise disclosed, since the respective
dates of the Image Metrics Financial Statements, there shall have been no
material adverse change in the business, operations, results of operations or
condition (financial or otherwise) of Image Metrics.
(ii) Image
Metrics shall have obtained and delivered to ICLA (A) all necessary consents to
the transactions contemplated by this Agreement, which consents shall be in form
and substance reasonably satisfactory to counsel for ICLA and (B) an agreement
or agreements in form and substance reasonably satisfactory to counsel for ICLA
signed by or on behalf of all of the shareholders of Image Metrics under which
all of such shareholders agree to transfer to ICLA all of the shares of Image
Metrics held by them.
(iii) On
the Closing Date, (A) there shall be no injunction, restraining order or order
of any nature issued by any court of competent jurisdiction which directs that
this Agreement or any material transaction contemplated hereby shall not be
consummated as herein provided or compels or would compel Image Metrics to
dispose of or discontinue the business or a portion of the business of Image
Metrics as a result of the consummation of any of the transactions contemplated
hereby; and (B) there shall be no suit, action or other proceeding by any person
pending before any court or governmental agency, or threatened to be filed or
initiated, which, in the opinion of Image Metrics, is likely to result in the
restraint or prohibition of the consummation of any transaction contemplated
hereby or the obtaining of an amount in payment of damages from or other relief
against any of the parties hereto or against any director or officer of Image
Metrics or any of its affiliates, in connection with the consummation of any
transaction contemplated hereby.
(iv) All
proceedings, corporate or otherwise, to be taken by Image Metrics in connection
with the transactions contemplated by this Agreement, and all documents incident
thereto, shall be satisfactory in form and substance to ICLA and Image Metrics
shall have made available to counsel for ICLA all records and documents relating
to the business and affairs of Image Metrics which such counsel may reasonably
request in connection with its review as aforesaid.
(v) Image
Metrics shall have delivered to ICLA (a) a copy of Image Metrics’ Articles of
Association, including all amendments thereto certified by the corporate
secretary of Image Metrics as true and complete as of the Closing Date, (b) a
certificate from an official from the Companies Registry of England and Wales to
the effect that Image Metrics is in good standing as of a date no earlier than
three days prior to the Closing Date, and (c) evidence reasonably satisfactory
to counsel to ICLA as to the tax status of Image Metrics.
(vi) The
Board of Directors of Image Metrics shall have approved the consummation of the
transactions contemplated by this Agreement.
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(vii) Image
Metrics shall deliver to ICLA, or make available for review at a mutually
acceptable location, copies of all of Image Metrics’ minute books, files,
documents, papers, agreements, books of account and records pertaining to the
business conducted by Image Metrics prior to the Closing Date.
(b) Conditions Precedent to the
Obligations of Image Metrics. (i) All obligations of Image
Metrics under this Agreement and of the shareholders of Image Metrics to
transfer their Shares are subject to (A) the representations and warranties of
ICLA contained in this Agreement being true on and as of the Closing Date with
the same effect as if said representations and warranties had been made on and
as of the Closing Date and (B) ICLA having performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by it prior to or at the Closing.
(ii) At
Closing, ICLA shall have entered into one-year strategic advisory agreements
with each of Verus International Group Ltd., Matrix Partners Ltd. and Saffron
Hill Ventures.
7. Non-Survival of
Representations and Warranties. The representations and
warranties of the parties made in Sections 3 and 4 of this Agreement shall not
survive beyond the Closing Date. This Section 7 shall not limit any
claim for fraud or any covenant or agreement of the parties which by its terms
contemplates performance after the Closing Date.
8. Waiver or Modification of
Agreement. No provision of this Agreement may be amended,
waived or otherwise modified except by an instrument in writing signed by ICLA
and Image Metrics; provided, however, that any
party hereto which is entitled to the benefits of this Agreement may, and has
the right to, waive or modify in writing any term or condition hereof for his or
its benefit at any time on or prior to the Closing Date.
9. Governing
Law. This Agreement shall be governed by and construed in
accordance with the law of the State of New York, and the Supreme Court of the
State of New York in and for the County of New York or the United States
District Court for the Southern District of New York shall be the exclusive
venue for any dispute, action or proceeding arising from this
Agreement.
10. Finders,
etc. Image Metrics represents and warrants that no person
acting on behalf of Image Metrics has made any commitment or done any other act
which would create any liability of any other party to this Agreement or Image
Metrics for any brokerage, finders or similar fee or commission in connection
with the transactions contemplated by this Agreement. ICLA represents
and warrants that no person acting on its behalf has made any commitment or done
any other act which would create any liability for any brokerage, finder’s or
similar fee or commission in connection with the transactions contemplated by
this Agreement.
11. Press Releases,
etc. Except as required by law, including regulations of the
U.S. Securities and Exchange Commission, neither ICLA nor Image
Metrics shall issue any press release or other information to the media relating
to this Agreement, without the prior written consent of the other
party.
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12. Notices,
etc. All notices, requests, demands and other communications
hereunder shall be given in writing (which includes facsimile and other wire
transmission):
(a) if
to ICLA, to:
▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Chief
Executive Officer
Tel.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:______________
(b) if
to Image Metrics, to:
Image
Metrics Limited
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Tel.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copies to:
▇▇▇▇▇▇▇▇▇
Traurig, LLP
MetLife
Building
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▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Tel.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
-and-
WilmerHale,
LLP
Park
Gate
▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ Loake, Esq.
Tel.:
▇▇▇(▇) ▇▇-▇▇▇▇-▇▇▇▇
Fax:
▇▇▇(▇) ▇▇-▇▇▇▇-▇▇▇▇
(or to
such other address as such person shall specify by notice hereunder), and shall
be deemed to be effective when given in such manner, provided that any notice
given other than in writing by registered or certified mail shall be confirmed
in writing by registered or certified mail.
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13. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
14. Expenses of
Parties. Each of the parties hereto shall bear all expenses
incurred by such party in connection with this Agreement including, without
limitation, the fees of their respective counsel, financial advisors,
accountants and finders, if any.
15. Successors and
Assigns. The respective rights and obligations of the parties
hereto shall not be assignable without the prior written consent of the other
party. This Agreement shall be binding upon and inure to the benefit
of the heirs, distributees, successors and permitted assigns of the parties
hereto.
16. Entire and Sole
Agreement. This Agreement, including the schedules and
exhibits referred to herein, constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, representations, warranties,
statements, promises, information, arrangements and understandings, whether oral
or written, express or implied, with respect to the subject matter
hereof. None of the parties hereto shall be bound by or charged with
any oral or written agreements, representations, warranties, statements,
promises, information, arrangements or understandings not specifically set forth
in this Agreement or in the schedules, documents and instruments to be delivered
on or before the Closing Date in connection with this Agreement. The
parties hereto further acknowledge and agree that, in entering into this
Agreement and in delivering the schedules, documents and instruments to be
delivered on or before the Closing Date they have not in any way relied, and
will not in any way rely, upon any oral or written agreements, representations,
warranties, statements, promises, information, arrangements or understandings,
express or implied, not specifically set forth in this Agreement or in such
schedules, documents or instruments.
17. Confidentiality. Each
party agrees and undertakes that prior to Closing it will keep confidential and
will not use for its own purposes nor without the prior written consent of the
other party disclose to any third party information of a confidential nature
(including information of commercial value) which may become known to that party
from the other party (“Confidential
Information”) unless the information is public knowledge or already known
to that party at the time of disclosure or subsequently becomes public knowledge
other than by breach of this Agreement or subsequently comes lawfully into the
possession of that party from a third party.
18. Waiver. The
failure to exercise or delay in exercising a right or remedy provided by this
Agreement or by law does not constitute a waiver of the right or remedy or a
waiver of other rights or remedies. A waiver of a breach of any of
the terms of this Agreement or of a default under this Agreement does not
constitute a waiver of any other breach or default and shall not affect the
other terms of this Agreement. A waiver of a breach of any of the
terms of this Agreement or of a default under this Agreement will not prevent a
party from subsequently requiring compliance with the waived
obligation.
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SIGNATURES
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
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By:
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/s/ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Chief
Executive Officer
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IMAGE
METRICS LIMITED
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By:
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇
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President
and Chief Executive
Officer
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