AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER BY AND AMONG COLOREP, INC., A CALIFORNIA CORPORATION, ON THE ONE HAND AND CARTHEW BAY TECHNOLOGIES INC., AN ONTARIO CORPORATION, AND CBT ACQUISITION CO., INC., A DELAWARE CORPORATION, ON THE OTHER HAND...
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AMENDED AND RESTATED
BY AND AMONG
COLOREP, INC.,
A CALIFORNIA
CORPORATION,
ON THE ONE HAND
AND
AN ONTARIO
CORPORATION,
AND
CBT ACQUISITION CO.,
INC.,
A DELAWARE CORPORATION,
ON THE OTHER HAND
AMENDED AND RESTATED EFFECTIVE AS OF MARCH
31, 2010
THIS AMENDED AND RESTATED AGREEMENT AND
PLAN OF MERGER (the “Agreement”) is effective as of March 31, 2010, by
and among Colorep, Inc., a California corporation (“Colorep”), on the one hand, and Carthew Bay
Technologies Inc., an Ontario corporation (“CBT”), and CBT Acquisition Co., Inc., a
Delaware corporation and wholly-owned subsidiary of CBT (“Merger
Sub”).
RECITALS
A. CBT, Merger Sub and Colorep
(collectively, the “Parties”) previously executed an Agreement and
Plan of Merger dated May 23, 2008 (the “Original
Agreement”), in which the
parties documented their mutual intention to engage in a merger transaction and
supporting actions pursuant to which Merger Sub would merge with and into
Colorep, with Colorep being the surviving corporation, and the outstanding
shares of Colorep would be converted into shares of CBT’s common stock in the
manner therein described (collectively, the “Merger”).
B. CBT, Merger Sub and Colorep have
executed various amendments to the Original Agreement since its execution
adjusting various terms of the Original Agreement with respect to the terms and
conditions of the Merger and timing for completion of the Merger (the
“Interim
Amendments”).
C. In conjunction with and in consideration
of amendment and restatement of certain other obligations between CBT and
Colorep, including execution of an Amended and Restated Secured Convertible
Debenture dated March 31, 2010 (the “Debenture”) setting forth the terms of conversion
of certain debt obligations between CBT and Colorep (the “Conversion”), the Parties desire to further amend
and restate the terms and conditions of the Merger reflected in the Original
Agreement and Interim Amendments as set forth in this
Agreement.
D. The respective boards of directors of
Colorep, CBT and Merger Sub have each approved the Original Agreement, the
Interim Amendments, this Agreement and the Merger, and CBT, as the sole
shareholder of Merger Sub, has approved this Agreement and the
Merger.
E. A requisite percentage of the Colorep
shareholders shall approve this Agreement and the Merger prior to the Closing.
F. To the extent required by law, a
requisite percentage of the CBT shareholders shall approve this Agreement and
the Merger prior to the Closing.
G. The parties intend that this Agreement
constitutes a plan of reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated
thereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the
mutual covenants and agreements contained herein and in reliance upon the
representations and warranties hereinafter set forth, the parties hereto hereby
agree as follows:
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ARTICLE 1
THE OPTION
1.1 Option to
Complete Merger.
CBT and Merger Sub hereby grant Colorep
an option to elect in its sole discretion to proceed with the Merger on the
terms and conditions set forth herein (the “Merger
Option”) upon provision of
written notice from Colorep to CBT and Merger Sub (“Option
Notice”) on or before
December 31, 2010 (the “Option
Termination Date”). CBT and Merger Sub
acknowledge that neither shall have any right to trigger or enforce this
Agreement with respect to the conduct and completion of the Merger in the
absence of receipt of a timely Option Notice.
1.2 Form and
Delivery of Option Notice.
The Option Notice shall include (a) an
affirmative statement from Colorep exercising the Merger Option and (b)
Colorep’s expectations regarding timing of completion of the closing conditions
and Closing. The Option Notice shall be delivered consistent with
Section 9.1 herein.
1.3 Conduct
Prior to Option Notice/Option Termination Date
From the date of this Agreement through
the earlier to occur of delivery of an Option Notice, delivery of a written
notice of termination of this Merger Option from Colorep to CBT, or the Option
Termination Date, the parties shall conduct their business consistent with and
otherwise comply with Articles 5 and 9 of this Agreement, provided,
however, that if the Parties’ obligations under the Debenture with respect to
the conduct and completion of the Conversion and any post-closing obligations
related thereto conflict with or are inconsistent with such Articles, the
Debenture shall control.
1.4 Effect of
Option Notice; Lack of Exercise.
If Colorep exercises the Merger Option
prior to the Option Termination Date, the parties will conduct the Merger
pursuant to Articles 3 through 9 of this Agreement. If Colorep does
not exercise the Merger Option prior to the Option Termination Date, this
Agreement shall terminate and the Parties shall have no further obligation,
contingent or otherwise, to conduct or complete the Merger.
ARTICLE 2
THE MERGER
2.1 Surviving
Entity; Effective Time.
At the Closing, subject to the terms and
conditions of this Agreement, Merger Sub shall be merged with and into Colorep
in accordance with the relevant sections of the Delaware General Corporation Law
Act (the “DGCL”) and the California General
Corporation Law (the “CGCL”), whereupon the separate existence of
Merger Sub shall cease, and Colorep shall be the surviving corporation
(“Surviving
Corporation”), this time to
be known as the “Effective
Time”). It is
intended by the parties hereto that the Merger shall constitute a reorganization
within the meaning of Section 368(a) of the Code and the parties hereto hereby
adopt this Agreement as a “plan of reorganization” within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury
Regulations.
Simultaneously with the Closing,
Certificate of Merger (the “Merger
Certificate”) shall be
filed with the Secretary of State of the State of Delaware in accordance with
the DGCL and Articles of Merger (the “Merger
Articles”) shall be filed
with the Secretary of State of the State of California in accordance with the
CGCL. From and after the Effective Time, Colorep shall possess all
the rights, privileges, powers and franchises and be subject to all of the
restrictions, disabilities and duties of both Colorep and Merger Sub, as
provided under the DGCL and the CGCL.
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2.2 Articles of
Incorporation and Bylaws.
The Articles of Incorporation and Bylaws
of Colorep, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation and Bylaws, respectively, of the Surviving Corporation
from and after the Effective Time, until thereafter amended in accordance with
applicable law.
2.3 Directors
and Officers.
From and after the Effective Time, until
their successors are duly elected or appointed and qualified, the directors and
officers of CBT and the Surviving Corporation shall be the directors and
officers, respectively, of Colorep in office immediately prior to the Effective
Time.
2.4 Conversion
of Shares.
As of the Effective Time, by virtue of
the Merger, automatically and without any action on the part of any holder
thereof:
(a) Each issued and outstanding share of
common stock, $0.001 par value per share, of Merger Sub shall be converted into
and be exchanged for one fully paid and nonassessable share of the Surviving
Corporation.
(b) (i) If the Conversion has been consummated
prior to the Effective Time, each fully paid and nonassessable share of Colorep
common stock, no par value (“Colorep
Common Stock”) outstanding
immediately prior to the Effective Time, except as set forth in Section 2.4(d),
shall be converted into a right to that number of fully paid and nonassessable
shares of CBT common stock, $0.001 par value per share (“CBT Common
Stock”) so that upon such
issuance the Post-Merger CBT Shares (as defined below) shall equal the same
percentage of the Fully Diluted Post-Merger CBT Shares Outstanding as the
percentage of Pre-Merger Colorep Shares of the Fully Diluted Pre-Merger Colorep
Shares (if this Section 2.4(b)(i) controls, the “Conversion
Rate”), with the shares of
CBT Common Stock to be issued to the Colorep shareholders to be known as the
“Merger
Shares.” For
purposes of this Agreement, the following terms shall be defined as
follows: (1) “Post-Merger
CBT Shares” shall mean the
shares of CBT Common Stock held by those shareholders of CBT immediately after
the Effective Time of the Merger who were shareholders of CBT immediately prior
to the Effective Time of the Merger; (2) “Fully-Diluted
Post-Merger CBT Shares”
shall mean the aggregate number of shares of CBT Common Stock issued and
outstanding and issuable pursuant to outstanding or committed options, warrants
or other rights to purchase or convert into shares of CBT Common Stock held by
all persons immediately after the Effective Time of the Merger (including all
interests and rights held by former shareholders and other rights holders of
Colorep); (3) “Pre-Merger
Colorep Shares” shall mean
the shares of Colorep Common Stock (calculated on an as-converted, as exercises
basis) held by CBT immediately prior to the Effective Time of the Merger; and
(4) “Fully
Diluted Pre-Merger Colorep Shares” shall mean the aggregate number of
shares of Colorep Common Stock issued and outstanding and issuable pursuant to
outstanding or committed options, warrants or other rights to purchase or
convert into shares of Colorep Common Stock held by all persons immediately
prior to the Effective Time of the Merger (including all interests and rights
held by CBT).
(ii) If the Conversion has not been
consummated prior to the Effective Time:
(A) Immediately prior to the Closing, CBT
shall effect a reverse split of all of the CBT Common Stock then issued and
outstanding and accordingly adjust all options, warrants or other rights to
purchase or convert into shares of CBT Common Stock outstanding such that
immediately prior to the Closing upon the effectiveness of the reverse split, no
more than 11,000,000 shares of CBT Common Stock in aggregate shall be issued and
outstanding or issuable pursuant to outstanding or committed options, warrants
or other rights to purchase or convert into shares of CBT Common
Stock;
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(B) Each fully paid and nonassessable share
of Colorep Common Stock outstanding immediately prior to the Effective Time,
except as set forth in Section 2.4(d), shall be converted into a right to one
(1) fully paid and nonassessable share of CBT Common Stock (if this Section
2.4(b)(ii) controls, the "Conversion
Rate"), with the shares of
CBT Common Stock to be issued to the Colorep shareholders to be known as the
“Merger
Shares;”and
(C) Colorep shall pay CBT US$500,000
immediately prior to the Closing, which CBT may in its sole discretion use to
satisfy any outstanding obligations and/or arrange to dividend, in whole or in
part, to its shareholders immediately prior to the Effective Time of the Merger
concurrent with the Closing.
(c) Warrants to purchase shares of Colorep
Common Stock (“Colorep
Warrants”) and options and
commitments to grant options to purchase shares of Colorep Common Stock
(“Colorep
Options”) outstanding
immediately prior to the Effective Time, shall be assumed by CBT and shall be
converted into warrants to purchase shares of CBT Common Stock (“CBT
Warrants”) or options or
commitments to grant options to purchase shares of CBT Common Stock
(“CBT
Options”), as applicable,
based on the Conversion Rate.
Except as adjusted pursuant to the
Conversion Rate, each of the assumed Colorep Warrants and Colorep Options will
continue to have, and be subject to, the same terms and conditions of such
Colorep Warrants or Colorep Options held immediately prior to the Effective Time
(including, without limitation, any repurchase rights, vesting provisions and
provisions regarding the acceleration of vesting on certain
transactions).
(d) At the Effective Time, any securities of
Colorep held by CBT shall be automatically cancelled and shall not be eligible
for exchange at the Conversion Rate.
2.5 Fractional
Shares.
Fractional shares of CBT Common Stock
shall not be issued in connection with the Merger Shares, but any fractional
shares shall be rounded to the nearest whole share. No cash shall be
issued in lieu of any fractional shares.
2.6 Stock
Certificates.
(a) Upon surrender to CBT of the
certificates representing the Colorep Common Stock, Colorep Warrants or Colorep
Options (collectively, the “Colorep
Certificates”), the holders
of such Colorep Certificates shall each be entitled to receive in exchange
therefor one or more certificates representing the number of shares of CBT
Common Stock, CBT Warrants or CBT Options, respectively, to which such holder is
entitled pursuant to the provisions of Section 2.4 hereof.
(b) Each Colorep Certificate converted into
CBT Common Stock, CBT Warrants or CBT Options, respectively, shall by virtue of
the Merger, and without any action on the part of the holder thereof, cease to
be outstanding, be cancelled and retired and cease to exist. Until
surrendered as contemplated by this Section 2.6, each holder of Colorep Common
Stock, Colorep Warrants or Colorep Options, respectively, shall thereafter cease
to possess any rights with respect to such shares, except the right to receive
upon such surrender the number of shares of CBT Common Stock, CBT Warrants or
CBT Options, respectively, as provided by Section 2.4
hereof.
(c) All shares of CBT Common Stock, CBT
Warrants or CBT Options, respectively, delivered to the Colorep shareholders in
respect of the Colorep Common Stock, Colorep Warrants or Colorep Options,
respectively, in accordance with the terms of this Agreement shall be deemed to
have been delivered in full satisfaction of all rights pertaining to such shares
of Colorep Common Stock, Colorep Warrants or Colorep Options,
respectively. If, after the Effective Time, Colorep Certificates are
presented for any reason, they shall be cancelled and exchanged as provided in
this Section 2.6.
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2.7 Dissenters’
Rights.
Notwithstanding anything in this
Agreement to the contrary:
(b) the outstanding shares of Colorep Common
Stock, the holders of which have timely filed written notices of an intention to
demand appraisal for their shares (“Colorep
Dissenting Shares”)
pursuant to Section 1301 of the CGCL and have not effectively withdrawn or lost
their dissenters rights under the CGCL, shall not be converted into a right to
receive Merger Shares, and the holders thereof shall be entitled only to such
rights as are granted by Section 1301 of the CGCL, subject to Colorep’s right to
abandon the Merger under Section 6.1 of this Agreement. If any such
holder of Colorep Common Stock shall have failed to perfect or effectively shall
have withdrawn or lost such right, the Colorep Dissenting Shares held by such
holder shall be converted into a right to receive Merger Shares in accordance
with Section 2.4 of this Agreement.
(b) the outstanding shares of CBT Common
Stock, the holders of which have timely filed written notices of an intention to
demand appraisal for their shares (“CBT
Dissenting Shares”)
pursuant to Section 185 of the Ontario Business Corporations Act (the
“OBCA”) and have not effectively withdrawn or
lost their dissenters rights under the OBCA, shall be entitled to such rights as
are granted by Section 185 of the OBCA, subject to Colorep’s right to abandon
the Merger under Section 6.1 of this Agreement.
2.8 Closing.
Unless this Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to Article 7 and subject to the satisfaction of the conditions
precedent specified in Article 6 hereof, the closing of the Merger shall take
place at the offices of K&L Gates LLP, on or before December 31, 2010 at
10:00 a.m. PST, or at such other time and date as the parties may mutually agree
(the “Closing” or the “Closing
Date”).
2.9 Press
Releases.
At
Closing, CBT shall issue such press release or announcement of the transactions
contemplated by this Agreement and make such filings as may be required by the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), subject to the applicable requirements of Rules 135a and 135c
under the Securities Act of 1933, as amended (the “Securities Act”), and
such release or announcement will be reasonably satisfactory in form and
substance to Colorep and its counsel. At all other times prior to
Closing, including prior to the Option Termination Date with respect to the
Merger Option, CBT shall only issue any other press release or otherwise make
public any information with respect to this Agreement or the transactions
contemplated hereby, with the prior written consent of Colorep which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, if
required by law, CBT may issue such a press release or otherwise make public
such information as long as CBT notifies Colorep of such requirement and
discusses with Colorep in good faith the contents of such disclosure
beforehand. Notwithstanding the foregoing, CBT shall not issue any
press release or announcement with respect to this Agreement and the
transactions contemplated hereby that could be construed to be an offer to
purchase or a solicitation of an offer to sell securities.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF
COLOREP;
COVENANT TO PROVIDE FUTURE
REPRESENTATION AND WARRANTIES
3.1 Organization,
Good Standing and Qualification. Colorep hereby represents
and warrants: (a) each of Colorep and its Subsidiaries is a corporation or
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation and has all
requisite corporate or limited liability company power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted; (b) Colorep and each Subsidiary is duly qualified
to transact business and is in good standing as a foreign corporation or limited
liability company in each jurisdiction in which qualification is required,
except where the failure to so qualify, individually or in the aggregate, would
not have a Material Adverse Effect; and (c) Colorep and each Subsidiary has
full corporate or limited liability company power and authority and all
authorizations, licenses and permits necessary to carry on the business in which
it is engaged or in which it proposes presently to engage and to own and use the
properties owned and used by it.
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For purposes of this Agreement,
“Material
Adverse Effect” shall mean
any material adverse change in, or material adverse effect on, the business,
assets, results of operations, value, financial or other condition of Colorep
and its Subsidiaries or CBT and Merger Sub, as the case may be, in each case
taken as a whole, or any event or circumstances that could reasonably be
expected to have any such effect or that could reasonably be expected to
prevent, hinder or delay the consummation of any of the transactions
contemplated by this Agreement or any of the other documents, instruments or
agreements contemplated hereby.
3.2 Authorization. Colorep hereby represents
and warrants: (a) Colorep has the requisite power and authority to enter
into this Agreement and to carry out its obligations hereunder; (b) the
execution, delivery and performance of this Agreement by Colorep and the
consummation by Colorep of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Colorep and no other actions on the part
of Colorep are necessary to authorize this Agreement or the transactions
contemplated hereby other than the consent of the shareholders of Colorep to the
Merger; and (c) this Agreement has been duly and validly
executed and delivered by Colorep and constitutes a valid and binding agreement
of Colorep, enforceable against Colorep in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors’ rights generally or by general
principles of equity.
3.3 Litigation.
Colorep hereby represents
and warrants: (a) there is no action, suit, proceeding or investigation
pending or, to Colorep’s knowledge, currently threatened against Colorep or its
Subsidiaries, as the case may be, that questions the validity of this Agreement
or the right of Colorep to enter into such agreement, or to consummate the
transactions contemplated hereby, or that might result, either individually
or in the aggregate, in a Material Adverse Effect, including, without
limitation, actions, suits, proceedings or investigations pending or threatened
that Colorep is aware of and that involve the prior employment of any of the
employees of Colorep or its Subsidiaries, their use in connection with the
business of Colorep and its Subsidiaries of any information or techniques
allegedly proprietary to any of their former employers, or their obligations
under any agreements with prior employers; (b) neither Colorep
nor any Subsidiary, as the case may be, is a party or subject to the provisions
of any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality; and (c) there is no action, suit, proceeding or
investigation by Colorep and its Subsidiaries, as the case may be, currently
pending or that such party intends to initiate.
3.4 Compliance
with Other Instruments. Colorep hereby represents
and warrants: (a) Colorep is not in violation or default of any provision
of its Articles of Incorporation or its Bylaws, or, in any material respect, of
any instrument, judgment, order, writ, decree or contract to which it is a party
or by which it is bound, or of any provision of any federal or state statute,
rule or regulation applicable to it; (b) each Subsidiary is not in
violation or default of any provision of its constituent documents or, in any
material respect, of any instrument, judgment, order, writ, decree or contract
to which it is a party or by which it is bound, or of any provision of any
federal or state statute, rule or regulation applicable to it, the violation of
which would have a Material Adverse Effect; (c) the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby and thereby will not result in any such violation or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either a material default under any such instrument, judgment, order,
writ, decree or contract, or an event that results in the creation of any Lien
upon any material assets of Colorep or any of its Subsidiaries, or the
suspension, revocation, impairment, forfeiture or nonrenewal of any material
permit, license, authorization or approval applicable to Colorep or any of its
Subsidiaries, their business, operations, assets or properties; and
(d) Colorep has avoided every condition, and has not performed any act, the
violation or occurrence of which, respectively, would result in Colorep’s loss
of any material right granted under any agreement to which Colorep is a
party.
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3.5 Other
Colorep Representations and Warranties. Consistent with the
condition precedent to Closing set forth in Section 6.2(b) of this Agreement,
Colorep shall provide CBT and Merger Sub a certificate affirming the
representations and warranties set forth in this Article 3 and setting
forth further representations and warranties in form substantially consistent
with Article 2 of the Original Agreement (including qualifications regarding
knowledge and materiality where applicable), accurate at the time being given
and certified, except as set forth under the corresponding section of disclosure
schedules delivered to CBT and Merger Sub concurrently therewith (the
“Colorep
Disclosure Schedule,” and
with the completed certificate, the “Colorep
Representations and Warranties”), which when so delivered shall be
deemed a part hereof, addressing the following facts and
matters:
Capitalization and Voting
Rights
Valid Issuance of Outstanding
Securities
Delivery of True, Accurate and Complete
Organizational Documents and Minutes
No Default Under Organizational
Documents
Subsidiaries
Consents and Approvals; No
Violations
Financial Statements; Changes in
Financial Statements
Undisclosed
Liabilities
Properties
Permits
Environmental and Safety
Laws
Registration and Investor
Rights
Tax Returns, Payments and
Elections
Employee
Compensation
Intellectual
Property
Insurance
Internal Accounting
Controls
Foreign Corrupt
Practices
Employee Relations
ERISA
Broker’s Fees
No Disagreements with Accountants and
Lawyers
Full Disclosure
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CBT
AND MERGER SUB;
COVENANT TO PROVIDE FUTURE
REPRESENTATION AND WARRANTIES
4.1 Organization,
Good Standing and Qualification. CBT and Merger Sub, to the
knowledge of Merger Sub, hereby, jointly and severally, represent and warrant:
(a) each of CBT and Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted; (b) each of CBT and Merger Sub is duly qualified to
transact business and is in good standing as a foreign corporation in each
jurisdiction in which qualification is required, except where the failure to so
qualify, individually or in the aggregate, would not have a Material Adverse
Effect; and (c) each of CBT and Merger Sub has full corporate power and
authority and all authorizations, licenses and permits necessary to carry on the
business in which it is engaged or in which it proposes presently to engage and
to own and use the properties owned and used by it.
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4.2 Authorization. CBT and Merger Sub, to the
knowledge of Merger Sub, hereby, jointly and severally, represent and warrant:
(a) each of CBT and Merger Sub has the requisite corporate power and
authority to enter into this Agreement and carry out its obligations hereunder;
(b) the execution, delivery and performance of this Agreement by CBT and
Merger Sub and the consummation of the transactions contemplated hereby have
been duly authorized by the Board of Directors of each of CBT and Merger Sub and
no other actions on the part of CBT or Merger Sub are necessary to authorize
this Agreement or the transactions contemplated hereby; and (c) this
Agreement has been duly and validly executed and delivered by CBT and Merger Sub
and constitutes a valid and binding obligation of CBT and Merger Sub enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors’ rights generally or by general principles of
equity.
4.3 Litigation. CBT and Merger Sub, to the
knowledge of Merger Sub, hereby, jointly and severally, represent and warrant:
(a) there is no action, suit, proceeding or investigation pending or, to
CBT’s knowledge, currently threatened against CBT or Merger Sub, as the case may
be, that questions the validity of this Agreement or the right of CBT to enter
into such agreement, or to consummate the transactions contemplated hereby, or
that might result, either individually or in the aggregate, in a Material
Adverse Effect, including, without limitation, actions, suits, proceedings or
investigations pending or threatened that CBT is aware of and that involve the
prior employment of any of the employees of CBT or Merger Sub, their use in
connection with the business of CBT and Merger Sub of any information or
techniques allegedly proprietary to any of their former employers, or their
obligations under any agreements with prior employers; (b) neither CBT nor
Merger Sub, as the case may be, is a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality; and (c) there is no action, suit, proceeding or
investigation by CBT and Merger Sub, as the case may be, currently pending or
that such party intends to initiate.
4.4 Compliance
with Other Instruments. CBT and Merger Sub, to the
knowledge of Merger Sub, hereby, jointly and severally, represent and warrant:
(a) CBT is not in violation or default of any provision of its
organizational documents, or, in any material respect, of any instrument,
judgment, order, writ, decree or contract to which it is a party or by which it
is bound, or of any provision of any federal or state statute, rule or
regulation applicable to it; (b) Merger Sub is not in violation or default
of any provision of its constituent documents or, in any material respect, of
any instrument, judgment, order, writ, decree or contract to which it is a party
or by which it is bound, or of any provision of any federal or state statute,
rule or regulation applicable to it, the violation of which would have a
Material Adverse Effect; (c) the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby and
thereby will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
material default under any such instrument, judgment, order, writ, decree or
contract, or an event that results in the creation of any Lien upon any material
assets of CBT or Merger Sub, or the suspension, revocation, impairment,
forfeiture or nonrenewal of any material permit, license, authorization or
approval applicable to CBT or Merger Sub, their business, operations, assets or
properties; and (d) CBT has avoided every condition, and has not performed
any act, the violation or occurrence of which, respectively, would result in
CBT’s loss of any material right granted under any agreement to which CBT is a
party.
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4.5 Investment
Company Act. CBT
hereby represents and warrants that (a) it is not, has not taken any action
with the intention of becoming or with reasonable likelihood to result in CBT
becoming, and is not controlled by an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, and (b) it has not and is
not principally engaged in, or undertaking as one of its central activities, the
business of extending credit for the purpose of purchasing or carrying margin
stock.
4.6 Other CBT
and Merger Sub Representations and Warranties. Consistent with the
condition precedent to Closing set forth in Section 6.1(b) of this
Agreement, CBT and Merger Sub shall provide Colorep a certificate affirming the
representations and warranties set forth in this Article 4 and setting forth
further joint and several representations and warranties in form substantially
consistent with Article 3 of the Original Agreement (including qualifications
regarding knowledge and materiality where applicable), accurate at the time
being given and certified, except as set forth under the corresponding section
of disclosure schedules delivered to Colorep concurrently therewith (the
“CBT
Disclosure Schedule,” and
with the completed certificate, the “CBT
Representations and Warranties”), which when so delivered shall be
deemed a part hereof, addressing the following facts and
matters:
Capitalization and Voting
Rights
Valid Issuance of Outstanding
Securities
Delivery of True, Accurate and Complete
Organizational Documents and Minutes
No Default Under Organizational
Documents
Subsidiaries
Consents and Approvals; No
Violations
SEC Documents
Financial Statements; Changes in
Financial Statements
Undisclosed
Liabilities
Properties
Permits
Environmental and Safety
Laws
Registration and Investor
Rights
Tax Returns, Payments and
Elections
Employee
Compensation
Intellectual
Property
Insurance
Internal Accounting
Controls
Foreign Corrupt
Practices
Employee Relations
ERISA
Contracts
Legal Compliance
Broker’s Fees
Listing and Maintenance
Requirements
No Disagreements with Accountants and
Lawyers
Full Disclosure
ARTICLE 5
COVENANTS AND AGREEMENTS OF THE
PARTIES
5.1 Corporate
Examinations and Investigations. Prior to the Closing, each
party shall be entitled, through its employees and representatives, to make such
investigations and examinations of the books, records and financial condition of
Colorep, CBT and Merger Sub as each party may request. In order that
each party may have the full opportunity to do so, Colorep, CBT and Merger Sub
shall furnish each party and its representatives during such period with all
such information concerning the affairs of Colorep, CBT or Merger Sub as each
party or its representatives may reasonably request and cause Colorep, CBT or
Merger Sub and their respective officers, employees, consultants, agents,
accountants and attorneys to cooperate fully with each party’s representatives
in connection with such review and examination and to make full disclosure of
all information and documents requested by each party and/or its
representatives. Any such investigations and examinations shall be
conducted at reasonable times and under reasonable circumstances, it being
agreed that any examination of original documents will be at each party’s
premises, with copies thereof to be provided to each party and/or its
representatives upon request.
9
5.2 Cooperation;
Consents. Prior
to the Closing, each party shall cooperate with the other parties to the end
that the parties shall (i) in a timely manner make all necessary filings with,
and conduct negotiations with, all authorities and other persons the consent or
approval of which, or the license or permit from which is required for the
consummation of the Merger and of the transactions contemplated by this
Agreement and (ii) provide to each other party such information as the other
party may reasonably request in order to enable it to prepare such filings and
to conduct such negotiations.
5.3 Conduct of
Business. Subject to the provisions
hereof, from the date hereof through the Closing, each party hereto shall
conduct its business in the ordinary course as conducted as of the date hereof
and in such a manner so that the representations and warranties contained herein
shall continue to be true and correct in all material respects as of the Closing
as if made at and as of the Closing. In addition, without the prior
written consent of Colorep or CBT, as the case may be, none of CBT or Merger Sub
(as it relates to CBT and Merger Sub) or Colorep or any Subsidiary (as it
relates to Colorep and any Subsidiary) shall enter into any material
transactions or incur any material liability not required or specifically
contemplated hereby or in the Debenture. Without the prior written
consent of Colorep, CBT or Merger Sub, as the case may be, except as required or
specifically contemplated hereby, each party shall not undertake or fail to
undertake any action if such action or failure would render any of said
warranties and representations untrue in any material respect as of the
Closing.
5.4 Litigation. From the date hereof
through the Closing, each party hereto shall promptly notify the representative
of the other parties of any lawsuits, claims, proceedings or investigations
which after the date hereof are threatened or commenced against such party or
any of its affiliates or any officer, director, employee, consultant, agent or
shareholder thereof, in their capacities as such, which, if decided adversely,
could reasonably be expected to have a Material Adverse Effect upon the
condition (financial or otherwise), assets, liabilities, business, operations or
prospects of Colorep, CBT or Merger Sub.
5.5 Notice of
Default. From
the date hereof through the Closing, each party hereto shall give to the
representative of the other parties prompt written notice of the occurrence or
existence of any event, condition or circumstance occurring which would
constitute a violation or breach of this Agreement by such party or which would
render inaccurate in any material respect any of such party’s representations or
warranties herein.
5.6 Continuation
of Insurance Coverage. From the date hereof to the
Closing, each party hereto shall keep in full force and effect insurance
coverage for its assets and operations comparable in amount and scope to the
coverage now maintained covering its assets and operations.
5.7 Exclusive
Dealing. Until
the earlier of December 31, 2010 or such time, if any, as this Agreement is
terminated pursuant to the provisions hereof (the “Exclusivity
Period”), neither CBT nor
Colorep shall, directly or indirectly, initiate, encourage or solicit any
inquiries or the making of any proposal with respect to, or engage in
discussions or negotiations with, or provide information to any person in
connection with, a Colorep Alternate Transaction or CBT Alternate
Transaction.
For purposes of this Agreement: (i)
“Colorep
Alternate Transaction”
shall mean any proposal or offer with respect to any merger, consolidation or
other business combination involving Colorep or its business or the acquisition
of assets of Colorep; and (ii) “CBT
Alternate Transaction”
shall mean any proposal, offer, agreement, arrangement or understanding between
CBT and/or Merger Sub and a target company regarding a merger or share
exchange.
10
5.8 Monthly
Interim Financial Statements. From the date hereof to the
Closing, Colorep shall furnish CBT within thirty (30) days after the end of each
month, an unaudited balance sheet of Colorep and unaudited statements of income
and stockholders’ equity and retained earnings and cash flow of Colorep
reflecting results of operations for such month, prepared on a basis consistent
with prior practices.
5.9 Reconciliation
with Debenture. Colorep and CBT acknowledge
and agree that to the extent that any provisions set forth in this Agreement
conflict with any of the terms and conditions set forth in the Debenture, as
amended and restated, even once converted in the Conversion, the Debenture shall
govern. Further, Colorep and CBT agree to further amend this
Agreement if necessary to conform with the terms and conditions set forth in the
Debenture.
5.10 Name
Change. The
Parties agree to take whatever actions that are necessary to change the name of
CBT to such name as proposed by Colorep as of or as soon as possible after the
Effective Time.
5.11 Investor
Relations. Prior
to Closing, CBT shall launch, with the consultation and agreement of Colorep, an
investor relations initiative commencing on a date to be mutually agreed to, but
not later than the date of effectiveness of the Registration Statement, for
which Colorep shall fund 50% of the cost, up to a maximum of $2,500 per
month.
ARTICLE 6
CONDITIONS TO
CLOSING
AND POST-CLOSING
COVENANTS
6.1 Conditions
to Obligations of Colorep. The obligations of Colorep
under this Agreement to effect the Merger shall be subject to the satisfaction
prior to the Closing Date of each of the following
conditions:
(a) Closing
Deliveries. At
the Closing, CBT shall have delivered or caused to be delivered to Colorep the
following:
(i) resolutions duly adopted by the Board of
Directors of each of CBT and Merger Sub, and authorizing and approving the
Merger and the execution, delivery and performance of this
Agreement;
(ii) resolutions duly adopted by the
shareholders of each of CBT and Merger Sub, and authorizing and approving the
Merger and the execution, delivery and performance of this
Agreement;
11
(iii) a certificate of status for CBT from the
Ministry of Governance and consumer Services of the Province of Ontario and a
certificate of good standing for Merger Sub from the Secretary of State of the
State of Delaware, each dated not earlier than three (3) days prior to the
Closing Date;
(iv) subject to compliance with Section 14(f)
of the Exchange Act and Rule 14f-1 thereunder, written resignations of all
officers and directors of CBT in office immediately prior to the Closing, board
resolutions appointing the members of the Colorep Board of Directors to the CBT
Board of Directors, and board resolutions appointing the following individuals
as officers of CBT post-Closing:
|
Name
|
Positions
|
|
|
Xxxxx Xxxx
|
Chief Executive Officer and
Chairman of the Board of Directors
|
|
|
Xxxx
Xxxxxxxx
|
Chief Financial Officer and
Secretary
|
(v) certificates from each of CBT and Merger
Sub representing that the information referenced in Section 6.1(b)(ii) is true
as of the Closing Date; and
(vi) such other documents as Colorep may
reasonably request in connection with the transactions contemplated
hereby.
(b) Delivery of
CBT Representations and Warranties; Representations and Warranties to be
True.
(i) Within ten (10) business days of receipt
of an Option Notice, CBT and Merger Sub shall deliver the CBT Representations
and Warranties to Colorep consistent with Section 4.6 of this Agreement, which
shall be true and correct as of the date delivered except where explicit
reference is made to one or more alternative date(s).
(ii) The CBT Representations and Warranties
as delivered pursuant to Sections 4.6 and 6.1(b)(i) of this Agreement shall be
true in all material respects at the Closing with the same effect as though made
at such time. CBT and Merger Sub shall have performed in all material
respects all obligations and complied in all material respects with all
covenants and conditions required by this Agreement to be performed or complied
with by them at or prior to the Closing.
(c) Consents and
Approvals. Colorep shall have received
prior to the Closing Date evidence, in form and substance reasonably
satisfactory to it, that such licenses, permits, consents, approvals,
authorizations, qualifications and orders of any governmental entity and/or
third party as necessary in connection with the execution, delivery and
performance of this Agreement have been duly obtained.
(d) No Material
Adverse Change. No event or circumstance
shall have occurred, or be threatened, that could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on the
business of CBT.
(e) Delaware
Reincorporation. CBT shall
have effected a reincorporation of CBT from the Province of Ontario to the State
of Delaware at least one (1) day prior to the Effective Time (the “Reincorporation”), such Reincorporation in form and
substance acceptable to Colorep, in its sole discretion including, but not
limited to, compliance of the Reincorporation with U.S. federal securities
laws.
12
(f) Reverse
Stock Split. CBT
shall have effected reverse stock split of its outstanding shares of common
stock (the “Reverse
Split”), the ratio to be
(i) if Section 2.4(b)(i) is applicable to the Merger, as mutually agreed upon
between Colorep and CBT, or (ii) if Section 2.4(b)(ii) is applicable to the
Merger, as specified therein; in either case, such Reverse Split in form and
substance to be acceptable to Colorep, in its sole discretion, including, but
not limited to, compliance of the Reverse Split with U.S. federal securities
laws.
(g) CBT Stock
Option Plan. CBT
shall have either amended its Stock Option Plan or taken any requisite actions
to adopt and administer the Colorep 2009 Omnibus Equity Incentive Plan, in form
and substance acceptable to Colorep, in its sole discretion.
(h) Shareholder
Consent. A
requisite percentage of the Colorep shareholders shall have approved the
Merger.
(i) Colorep
Dissenting Shares. The aggregate number of
Colorep Dissenting Shares shall be less than five percent
(5%).
(j) CBT
Dissenting Shares. The aggregate number of CBT
Dissenting Shares shall be less than five percent (5%).
(k) Registration
Statement. The
registration statement on Form F-4 and/or F-1 filed with the SEC by CBT in
connection with the Merger (the “Registration
Statement”) shall have
become effective under the Securities Act, and shall not be the subject of any
stop order or proceeding seeking a stop order.
6.2 Conditions
to Obligations of CBT and Merger Sub. The obligations of CBT and
Merger Sub under this Agreement to effect the Merger shall be subject to the
satisfaction prior to the Closing Date of each of the following
conditions:
(a) Closing
Deliveries. On
the Closing Date, Colorep shall have delivered to CBT such documents as CBT may
reasonably request in connection with the transactions contemplated
hereby.
(b) Delivery of
Colorep Representations and Warranties; Representations and Warranties to be
True.
(i) Within ten (10) business days of CBT’s
receipt of an Option Notice, Colorep shall deliver to CBT and Merger Sub the
Colorep Representations and Warranties consistent with Section 3.5 of this
Agreement, which shall be true and correct as of the date delivered, except
where explicit reference is made to one or more alternative
date(s).
(ii) The Colorep Representations and
Warranties as delivered pursuant to Section 3.5 and 6.2(b)(i) of this Agreement
shall be true in all material respects at the Closing with the same effect as
though made at such time. Colorep shall have performed in all
material respects all obligations and complied in all material respects with all
covenants and conditions required by this Agreement to be performed or complied
with by them at or prior to the Closing.
(c) Consents and
Approvals. CBT
and Merger Sub shall have received prior to the Closing Date evidence, in form
and substance reasonably satisfactory to it, that such licenses, permits,
consents, approvals, authorizations, qualifications and orders of any
governmental entity and/or third party as necessary in connection with the
execution, delivery and performance of this Agreement have been duly
obtained.
13
(d) No Material
Adverse Change. No event or circumstance
shall have occurred, or be threatened, that could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on the
business of Colorep.
(e) Shareholder
Consent. A
requisite percentage of each of the CBT and Merger Sub shareholders shall have
approved the Merger, respectively.
6.3 Pre-Clearance. The Parties shall have
obtained “pre-clearance” of the Merger Certificate and the Merger Articles from
the Secretary of State of Delaware and California,
respectively.
ARTICLE 7
TERMINATION; AMENDMENT;
WAIVER
7.1 Termination
by Non-Exercise of the Merger Option.
This Agreement may be
terminated and the Merger may be abandoned on or prior to the Option Termination
Date consistent with Section 1.3 and Section 1.4 of this
Agreement.
7.2 Termination
by Mutual Agreement. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time, whether before or after the approval of the Merger by the Colorep
shareholders and CBT, as the sole shareholder of Merger Sub by mutual written
consent of Colorep and CBT by action of their respective Boards of
Directors.
7.3 Termination
by either CBT or Colorep. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time by action of the Board of Directors of either CBT or Colorep
if:
(a) the Merger shall not have been
consummated by June 30, 2011, whether such date is before or after the date of
approval of the Merger by Colorep’s or CBT’s shareholders and Merger Sub’s
stockholders (the “Termination
Date”);
or
(b) any statute, rule, regulation, executive
order, decree, temporary restraining order, preliminary or permanent injunction
or other order enacted, entered, promulgated, enforced or issued by any
governmental authority or other legal restraint or prohibition preventing the
Merger shall be in effect; or
(c) there shall be pending or threatened by
any governmental authority any suit, action or proceeding challenging or seeking
to restrain or prohibit the Merger or seeking to obtain any material damages
from any party in connection with the Merger or there shall be issued any
judgment permanently restraining, enjoining or otherwise prohibiting
consummation of the Merger shall become final and non-appealable (whether before
or after the approval of the Merger by Colorep’s shareholders and Merger Sub’s
sole shareholder); provided, however, that the right to terminate this
Agreement pursuant to this Section 7.3 shall not be available to any party that
has breached in any material respect its obligations under this Agreement in any
manner that shall have proximately contributed to the occurrence of the failure
of the Merger to be consummated.
14
7.4 Termination
by Colorep. This
Agreement may be terminated and the Merger may be abandoned at any time prior to
the Effective Time, whether before or after the approval of the Merger by
Colorep’s shareholders and Merger Sub’s sole shareholder by action of Colorep’s
Board of Directors, if:
(a) (i) any of CBT’s representations and
warranties shall have been inaccurate as of the date of this Agreement, such
that the conditions set forth in Section 6.1 would not be satisfied, or (ii) if
(X) any of CBT’s representations and warranties become inaccurate as of a date
subsequent to the date of this Agreement (as if made on such subsequent date),
such that the condition set forth in Section 6.1 would not be satisfied and (Y)
such inaccuracy has not been cured by CBT within ten (10) business days after
its receipt of written notice thereof and remains uncured at the time notice of
termination is given, or (iii) CBT’s representation and warranties with respect
to its capitalization are inaccurate such that there are shares or rights to
obtain shares outstanding in addition to those initially
disclosed;
(b) Colorep receives an unsolicited proposal
or offer from a person or entity other than CBT or any of its affiliates for a
Colorep Alternate Transaction, and the Board of Directors of Colorep determines
in good faith that its fiduciary obligations under applicable law require that
such Colorep Alternate Transaction be accepted;
(c) since the date of this Agreement, CBT
shall have suffered any Material Adverse Effect on its financial condition,
results of operations or business.
7.5 Termination
by CBT. This
Agreement may be terminated and the Merger may be abandoned at any time prior to
the Effective Time, whether before or after the approval of the Merger by
Colorep’s shareholders and Merger Sub’s sole shareholder, by action of the Board
of Directors of CBT, if:
(a) (i) any of Colorep’s representations and
warranties shall have been inaccurate as of the date of this Agreement, such
that the condition set forth in Section 6.2 would not be satisfied, or (ii) if
(X) any of Colorep’s representations and warranties become inaccurate as of a
date subsequent to the date of this Agreement (as if made on such subsequent
date), such that the condition set forth in Section 6.2 would not be satisfied
and (Y) such inaccuracy has not been cured by Colorep within ten (10) business
days after its receipt of written notice thereof and remains uncured at the time
notice of termination is given;
(b) CBT receives an unsolicited proposal or
offer from a person or entity other than Colorep or any of its affiliates for a
CBT Alternate Transaction, and the Board of Directors of CBT determines in good
faith that its fiduciary obligations under applicable law require that such CBT
Alternate Transaction be accepted; or
(c) since the date of this Agreement,
Colorep shall have suffered any Material Adverse Effect on its financial
condition, results of operations or business.
7.6 Automatic
Extension of Termination Date. Notwithstanding anything to
the contrary contained herein, the Termination Date shall be automatically
extended to January 31, 2011 in the event that the Registration Statement is
still under review by the SEC and has not yet been declared effective but has
progressed such that the parties hereto reasonably expect to receive the
required SEC approval of the Registration Statement.
7.7 Effect of
Termination and Abandonment. In the event of termination
of this Agreement and the abandonment of the Merger pursuant to this Article 7,
this Agreement shall become void and of no effect with no liability on the part
of any party hereto (or of any of its directors, officers, employees,
consultants, contractors, agents, legal and financial advisors, or other
representatives); provided, however, that except as otherwise provided
herein, no such termination shall relieve any party hereto of any liability or
damages resulting from any willful breach of this Agreement; provided, further, that notwithstanding the foregoing, to
the extent this Agreement is terminated by Colorep pursuant to Section 6.3(d)
above, CBT shall be solely responsible for any and all fees and expenses
incurred by Colorep in connection with the Original Agreement, this Agreement,
the Debenture and any related documentation, such fees and expenses to be
deducted from amounts otherwise owed by Colorep to CBT pursuant to the
Debenture.
15
ARTICLE 8
INDEMNIFICATION
8.1 Survival of
Warranties.
(a) Representations,
Warranties and Covenants made by CBT and Merger Sub. All representations,
warranties and covenants made by CBT and Merger Sub herein, or in any
certificate, schedule or exhibit delivered pursuant hereto, shall survive the
Closing and continue in full force and effect for a period of eighteen (18)
months following the Closing Date. Notwithstanding the preceding
sentence, any claim for indemnity for breach of a representation or warranty in
respect of which indemnity may be sought under this Agreement shall survive the
time at which such representation or warranty otherwise would terminate pursuant
to the preceding sentence, if notice of the inaccuracy or breach thereof giving
rise to such right of indemnity shall have been given to the party against whom
such indemnity may be sought prior to such time.
(b) Representations,
Warranties and Covenants made by Colorep. All representations,
warranties and covenants made by Colorep herein, or in any certificate, schedule
or exhibit delivered pursuant hereto, shall survive the
Closing.
8.2 No Liability
for Shareholders. Except as otherwise set
forth in this Agreement, in no event shall the shareholders of Colorep be liable
to CBT, Merger Sub, nor shall the shareholders of CBT be liable to Colorep or
any Subsidiary, for any consequential, exemplary, punitive, or speculative
damages arising from this Agreement or any performance or breach
hereunder.
8.3 Sole
Remedy.
(a) CBT and
Merger Sub. Except as otherwise set
forth in Section 7.7, the ability to terminate the Merger in the event of a
breach of the representations and warranties or covenants by Colorep, as set
forth in Section 7.5, shall be the sole remedy at law available for any
such breach; provided, however, that this limitation shall not prevent CBT or
Merger Sub from seeking equitable remedies or any legal remedies for claims
arising with respect to this Agreement from willful misconduct or
fraud.
(b) Colorep. Except as otherwise set
forth in Section 7.7 the ability to terminate the Merger in the event of a
breach of the representations and warranties or covenants by CBT or Merger Sub,
as set forth in Section 7.4, shall be the sole remedy at law for the
satisfaction any claim for monetary damages arising from a breach of this
Agreement; provided, however, that this limitation shall not prevent Colorep
from seeking equitable remedies or any legal remedies for claims arising with
respect to this Agreement from willful misconduct or fraud.
16
(c) Indemnification
for Shareholder Action. CBT agrees to indemnify and
hold harmless Colorep and its directors, officers, affiliates and agents
(collectively, the “Colorep Indemnified Parties”) against any losses, claims,
damages or liabilities to which the Colorep Indemnified Parties may become
subject, under U.S. or Canadian law or otherwise (including settlement of any
litigation), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon the amendment and restatement
of the Original Agreement and Interim Amendments, the execution and/or
performance of obligations consistent with the terms of the Interim Amendments,
and/or the execution and/or performance of obligations consistent with the terms
of this Agreement, each in the absence of solicitation or receipt of prior
approval or consent to such actions by CBT from the CBT
shareholders.
ARTICLE 9
MISCELLANEOUS
PROVISIONS
9.1 Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally, sent by overnight courier or mailed by
registered or certified mail (postage prepaid and return receipt requested) to
the party to whom the same is so delivered, sent or mailed at the following
addresses:
If to Colorep:
Colorep, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx, XX
00000
Attn: Xxxxx Xxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
With a copy to (which shall not
constitute notice):
K&L Gates LLP
00000 Xxxxx Xxxxxx Xxxx., 0xx Xxxxx
Xxx Xxxxxxx, XX
00000
Attn: Xxxxxxxxxx X. Xxxx,
Esq.
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
If to CBT or Merger
Sub:
Brookfield Place
000 Xxx Xxxxxx, Xxxxx
0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X
0X0
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
With a copy to (which shall not
constitute notice):
Lang Xxxxxxxx LLP
Brookfield Place
000 Xxx Xxxxxx, Xxxxx
0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X
0X0
Attn: Xxxxxx Xxxxxxxxx,
Esq.
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
17
9.2 Interpretation. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. References to
Sections and Articles refer to sections and articles of this Agreement unless
otherwise stated.
9.3 Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated and
the parties shall negotiate in good faith to modify this Agreement to preserve
each party’s anticipated benefits under this Agreement.
9.4 Miscellaneous. This Agreement (together
with all other documents and instruments referred to herein): (a) constitutes
the entire agreement and supersedes all other prior agreements and undertakings,
both written and oral, among the parties with respect to the subject matter
hereof; provided, however,
for clarity, nothing herein
shall be construed as a termination of the Original Agreement; (b) except as
expressly set forth herein, is not intended to confer upon any other person any
rights or remedies hereunder and (c) shall not be assigned by operation of law
or otherwise, except as may be mutually agreed upon by the parties
hereto.
9.5 Separate
Counsel. Each
party hereby expressly acknowledges that it has been advised to seek its own
separate legal counsel for advice with respect to this Agreement, and that no
counsel to any party hereto has acted or is acting as counsel to any other party
hereto in connection with this Agreement.
9.6 Governing
Law; Venue. This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware. Any and all actions brought under
this Agreement shall be brought in the state and/or federal courts of the United
States sitting in Delaware and each party hereby waives any right to object to
the convenience of such venue.
9.7 Counterparts
and Facsimile Signatures. This Agreement may be
executed in two (2) or more counterparts, which together shall constitute a
single agreement. This Agreement and any documents relating to it may
be executed and transmitted to any other party by facsimile, which facsimile
shall be deemed to be, and utilized in all respects as, an original, wet-inked
document.
9.8 Amendment. This Agreement may be
amended, modified or supplemented only by an instrument in writing executed by
all parties hereto.
9.9 Parties in
Interest: No Third Party Beneficiaries. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective heirs, legal representatives,
successors and assigns of the parties hereto. This Agreement shall
not be deemed to confer upon any person not a party hereto any rights or
remedies hereunder.
9.10 Waiver. No waiver by any party of
any default or breach by another party of any representation, warranty, covenant
or condition contained in this Agreement shall be deemed to be a waiver of any
subsequent default or breach by such party of the same or any other
representation, warranty, covenant or condition. No act, delay,
omission or course of dealing on the part of any party in exercising any right,
power or remedy under this Agreement or at law or in equity shall operate as a
waiver thereof or otherwise prejudice any of such party’s rights, powers and
remedies. All remedies, whether at law or in equity, shall be
cumulative and the election of any one or more shall not constitute a waiver of
the right to pursue other available remedies.
18
9.11 Expenses. Any expense payment
obligations accrued pursuant to the Original Agreement and/or Interim Amendments
through March 31, 2010 that remain unpaid as of the Conversion shall be deemed
part of the Obligations (as defined in the Debenture) and satisfied and
cancelled upon closing of the Conversion or subject to repayment consistent with
the terms of the Debenture. No further expense payment obligations
shall accrue pursuant to the Original Agreement and/or Interim Amendments after
March 31, 2010. Prior to the delivery of an Option Notice or the
Option Termination Date, the Parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers. From the delivery of an Option Notice through Closing or
termination of this Agreement, except as otherwise provided for herein, Colorep
shall bear all reasonable costs, including legal and travel, incurred by CBT or
Colorep in direct support of the conduct and completion of the Merger as
contemplated by this Agreement.
9.12 Schedules. If there is any
inconsistency between the statements in the body of this Agreement and those in
the schedules (other than an exception expressly set forth in the schedules with
respect to a specifically identified representation or warranty), the statements
in the body of this Agreement will control.
9.13 Construction. The Parties have
participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation
arises, this Agreement will be construed as if drafted jointly by the parties
and no presumption or burden of proof will arise favoring or disfavoring any
party because of the authorship of any provision of this
Agreement.
9.14 Incorporation
of Exhibits and Schedules. The exhibits, schedules,
and other attachments identified in this Agreement are incorporated herein by
reference and made a part hereof.
[Signature Page to
Follow]
19
IN WITNESS WHEREOF, the parties have
executed this Amended and Restated Agreement and Plan of Merger to be effective
as of the date first written above.
|
COLOREP,
INC.
|
|||||
| By: |
/s/
Xxxxx Xxxx
|
||||
| Name: |
Xxxxx
Xxxx
|
||||
| Title: |
Chief
Executive Officer
|
||||
| By: |
/s/
Xxxxx X. Xxxxxx
|
||||
| Name: |
Xxxxx
X. Xxxxxx
|
||||
| Title: |
Chief
Financial Officer
|
||||
|
CBT ACQUISITION CO.,
INC.
|
|||||
| By: |
/s/
Xxxxx Xxxx
|
||||
| Name: |
Xxxxx
Xxxx
|
||||
| Title: |
Chief
Executive Officer
|
||||
Signature
Page to Amended and Restated Agreement and Plan of
Merger
