Exhibit A
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AND REORGANIZATION AGREEMENT, dated as of November 17,
2004 (the "Agreement"), between INTERACTIVE MARKETING TECHNOLOGY, INC., a Nevada
corporation ("IAMK"); and METROLINK PACIFIC LIMITED, a British Virgin Islands
("BVI") corporation ("MPL"), and IMPERIAL INTERNATIONAL LIMITED, the 100%
beneficial stockholder of MPL (the "MPL Shareholder"), ORIENT FINANCIAL SERVICES
LIMITED and EMERGING GROWTH PARTNERS INC.
INTRODUCTION
IAMK desires to acquire all of the issued and outstanding shares of MPL
(together with all securities representing equity ownership in MPL, "MPL Capital
Stock") solely in exchange for an aggregate of 109,623,006 shares of authorized,
but theretofore unissued, shares of common stock, par value $0.01 per share, of
IAMK (the "IAMK Common Stock"), representing 85.0% of the fully diluted
outstanding IAMK Common Stock giving effect to such issuance. The MPL
Shareholder desires to exchange all of its beneficially owned shares of MPL
Capital Stock solely for shares of IAMK Common Stock in the amount set forth
herein.
Prior to the date hereof, the respective boards of directors or
analogous governing body of each of IAMK and MPL have, and the MPL Shareholder
has, approved and adopted this Agreement and it is the intent of the parties
hereto that the transactions contemplated hereby be structured so as to qualify
as a tax-free exchange under Subchapter C of the U.S. Internal Revenue Code of
1986, as amended (the "Code"), and the provisions of this Agreement will be
interpreted in a manner consistent with this intent.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
ACQUISITION AND EXCHANGE OF SHARES
Section 1.01 The Agreement. The parties hereto hereby agree that IAMK
shall acquire all of the issued and outstanding shares of MPL Capital Stock
solely in exchange for an aggregate of 109,623,006 shares of authorized, but
theretofore unissued, shares of IAMK Common Stock. The parties hereto agree that
at the closing of the transactions contemplated by this Agreement (the
"Closing"): (i) MPL will become a wholly-owned subsidiary of IAMK subject to the
conditions and provisions of Section 1.03 hereof; and (ii) IAMK will amend its
certificate and articles of incorporation and other related charter and
authorization documents with the relevant state authorities so as to cause the
corporate name thereof to be reasonably satisfactory to MPL.
Section 1.02 Exchange of Shares.
(a) At the Closing, IAMK will cause to be issued and held for delivery
to the MPL Shareholder or its designees, stock certificates representing an
aggregate of 109,623,006 shares of IAMK Common Stock, representing 85.0% of the
fully diluted outstanding IAMK Common Stock giving effect to such issuance, in
exchange for all of the issued and outstanding shares of MPL Capital Stock,
which shares will be delivered to IAMK at the Closing.
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(b) The shares of IAMK Common Stock to be issued pursuant to paragraph
(a) of this Section 1.02 will be authorized, but theretofore unissued shares of
IAMK Common Stock, and will be issued to the MPL Shareholder or as directed
thereby as set forth in Schedule 1.02(b) hereof credited as fully paid.
(c) All shares of IAMK Common Stock to be issued hereunder shall be
deemed "restricted securities" as defined in paragraph (a) of Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act"), and the MPL
Shareholder will represent in writing that they are acquiring said shares for
investment purposes only and without the intent to make a further distribution
of such shares. All shares of IAMK Common Stock to be issued under the terms of
this Agreement shall be issued pursuant to an exemption from the registration
requirements of the Securities Act, under Section 4(2) of the Securities Act and
the rules and regulations promulgated thereunder. Certificates representing the
shares of IAMK Common Stock to be issued hereunder shall bear a restrictive
legend in substantially the following form:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be offered for sale,
sold, or otherwise disposed of, except in compliance with the registration
provisions of such Act or pursuant to an exemption from such registration
provisions, the availability of which is to be established to the satisfaction
of the Company.
Section 1.03 Closing. Conditional upon MPL and MPL Shareholder being in
their sole and absolute discretion satisfied with the content of the IAMK
Disclosure Letter (as defined in Section 2.01) and notifying such to IAMK in
writing and there being no breach of any of the representations and warranties
of IAMK as set out in Section 2.01 or otherwise in this Agreement, the Closing
will take place at a date and time (the "Closing Date") and place to be mutually
agreed upon by the parties hereto, which shall be on or before December 20, 2004
(or such later date as the parties may agree in writing), and will be subject to
the provisions of Article IV of this Agreement. At the Closing:
(a) MPL Shareholder will deliver to IAMK share certificates or other
evidences representing all of the issued and outstanding MPL Capital Stock, duly
endorsed, so as to make IAMK the holder thereof, free and clear of all liens,
claims and other encumbrances;
(b) IAMK will deliver to, or at the direction of, the MPL Shareholder,
in accordance with Schedule 1.02(b) hereof, stock certificates representing an
aggregate of 109,623,006 shares of IAMK Common Stock, which certificates will
bear a standard restrictive legend in the form customarily used with restricted
securities and as set forth in Section 1.02(c) above and which shares shall
represent approximately 85.0% of the outstanding IAMK Common Stock giving effect
to the issuance thereof and the issuance of 10,317,459 shares of IAMK Common
Stock issued pursuant to Section 3.01(q);
(c) IAMK will deliver an Officer's Certificate as described in Sections
4.02(a) and 4.02(b) hereof, dated the Closing Date, certifying that all
representations, warranties, covenants, and conditions set forth herein by IAMK
are true and correct and not misleading as of, or have been fully performed and
complied with by, the Closing Date;
(d) MPL will deliver an Officer's Certificate as described in Sections
4.01(a) and 4.01(b) hereof, dated the Closing Date, certifying that all
representations, warranties, covenants and conditions set forth herein by MPL
are true and correct as of, or have been fully performed and complied with by,
the Closing Date; and
(e) IAMK will deliver to MPL evidence that all filings required to be
made by it as mentioned in Sections 2.01(c) above has been completed.
Section 1.04 Approval by Board of Directors. In anticipation of this
Agreement, IAMK has taken all necessary and requisite corporate and other
action, including without limitation, actions of the Board of Directors in order
to approve this Agreement and all transactions contemplated hereby and in
connection herewith.
Section 1.05 Consummation of Transaction. If at the Closing, no
condition exists which would permit any of the parties to terminate this
Agreement, or a condition then exists and the party entitled to terminate
because of that condition elects not to do so, then the transactions herein
contemplated shall be consummated upon such date, and then and thereupon, IAMK
will file any additional necessary documents that may be required by the State
of Nevada, the United States of America, or otherwise.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties of IAMK. IAMK hereby
represents and warrants to, and agrees with, MPL and the MPL Shareholder that
all representations and statements in this Section 2.01 or otherwise contained
in this Agreement are and will be true and accurate in all respects as at the
date hereof and at all times up to and as at Closing:
(a) Organization and Qualification. Other than as set forth in Section
A of the disclosure letter from IAMK to MPL and the MPL Shareholder in the
agreed form (the "IAMK Disclosure Letter"), IAMK has no subsidiaries or
affiliated corporation or owns any interest (whether directly or indirectly) in
any other enterprise (whether or not such enterprise is a corporation). IAMK is
a corporation duly organized, validly existing, and in good standing under the
laws of the State of Nevada, with all requisite power and authority, and all
necessary consents, authorizations, approvals, orders, licenses, certificates,
and permits of and from, and declarations and filings with, all federal, state,
local, and other governmental authorities and all courts and other tribunals, to
own, lease, license, and use its properties and assets, to issue an aggregate of
119,940,465 IAMK Common Stock contemplated herein and to carry on the businesses
in which it is now engaged and the businesses in which it contemplates engaging.
Other than as set forth in Section A of the IAMK Disclosure Letter, IAMK is duly
qualified to transact the businesses in which it is engaged and is in good
standing as a foreign corporation in every jurisdiction in which its ownership,
leasing, licensing, or use of property or assets or the conduct of its
businesses makes such qualification necessary.
(b) Capitalization. The authorized capital stock of IAMK immediately
prior to a share consolidation of approximately 1.69 to 1 and prior to giving
effect to the transactions contemplated hereby to consist of 100,000,000 shares,
$.001 par value, of IAMK Common Stock, of which 9,027,777 shares are
outstanding, and zero shares of preferred stock. Prior to Closing, IAMK
shareholders shall approve and caused to become effective the charter amendments
contemplated by Section 3.01 hereof. Each of such outstanding shares of IAMK
Common Stock is validly authorized, validly issued, fully paid, and
nonassessable, has not been issued and is not owned or held in violation of any
preemptive or similar right of stockholders. There is no commitment, plan, or
arrangement to issue, and no outstanding option, warrant, or other right calling
for the issuance of, any share of capital stock of IAMK or any security or other
instrument convertible into, exercisable for, or exchangeable for capital stock
of IAMK. There is outstanding no security or other instrument convertible into,
or exchangeable or exercisable for, capital stock of IAMK.
(c) Financial Condition. IAMK is required to and has prior to closing
filed with the United States Securities and Exchange (the "SEC") true and
correct copies of the following: audited balance sheets of IAMK as of fiscal
year-ended February 28, 2003 and 2004; and unaudited balance sheets of IAMK for
the quarterly periods ended May 31, 2004 and August 31, 2004; audited statements
of income, statements of stockholders' equity, and statements of cash flows of
IAMK for the years ended February 28, 2003 and 2004; and unaudited statements of
income, statements of stockholders' equity, and statements of cash flows of IAMK
for the quarterly periods ended May 31, 2004 and August 31, 2004. Each such
balance sheet shall present fairly the financial condition, assets, liabilities,
and stockholders' equity of IAMK as of its respective date; each such statement
of income and statement of stockholders' equity shall present fairly the results
of operations of IAMK for the period indicated; and each such statement of cash
flows shall present fairly the information purported to be shown therein. The
financial statements referred to in this Section 2.01(c) will have been prepared
in accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved and shall be in accordance
with the books and records of IAMK. The financial statements referred to in this
Section 2.01(c) contain all certifications and statements required the SEC's
Order, dated June 27, 2002, pursuant to Section 21(a)(1) of the Exchange Act
(File No. 4-460), Rule 13a-14 or 15d-14 under the Exchange Act, or 18 U.S.C.
Section 1350 (Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002) with
respect to the report relating thereto. Since August 31, 2004:
(i) there has at no time been a material adverse change in the
financial condition, results of operations, businesses, properties, assets,
liabilities, or future prospects of IAMK;
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(ii) IAMK has not authorized, declared, paid, or effected any dividend
or liquidating or other distribution in respect of its capital stock or any
direct or indirect redemption, purchase, or other acquisition of any stock of
IAMK; and
(iii) the operations and businesses of IAMK have been conducted in all
respects only in the ordinary course, except as described in the filings made by
IAMK with the SEC.
There is no fact known to IAMK which materially adversely affects or in the
future (as far as IAMK can reasonably foresee) may materially adversely affect
the financial condition, results of operations, businesses, properties, assets,
liabilities, or future prospects of IAMK; provided, however, that IAMK expresses
no opinion as to political or economic matters of general applicability. IAMK
has made known, or caused to be made known, to the accountants or auditors who
have prepared, reviewed, or audited the aforementioned consolidated financial
statements all material facts and circumstances which could affect the
preparation, presentation, accuracy, or completeness thereof.
(d) Tax and Other Liabilities. IAMK does not have any material
liability of any nature, accrued or contingent, including, without limitation,
liabilities for federal, state, local, or foreign taxes and penalties, interest,
and additions to tax ("Taxes"), and liabilities to customers or suppliers, other
than the following:
(i) Liabilities for which full provision has been made on the balance
sheet and the notes thereto (the "Last IAMK Balance Sheet") as of February 28,
2004 (the "Last IAMK Balance Sheet Date") referred to in Section 2.01(c); and
(ii) Other liabilities arising since the Last IAMK Balance Sheet Date
and prior to Closing in the ordinary course of business (which shall not include
liabilities to customers on account of defective products or services) which are
not material nor inconsistent with the representations and warranties of IAMK or
any other provision of this Agreement.
Without limiting the generality of the foregoing, the amounts set up as
provisions for Taxes on the Last IAMK Balance Sheet are sufficient for all
accrued and unpaid Taxes of IAMK, whether or not due and payable and whether or
not disputed, under tax laws, as in effect on the Last IAMK Balance Sheet Date
or now in effect, for the period ended on such date and for all fiscal periods
prior thereto. The execution, delivery, and performance of this Agreement by
IAMK will not cause any Taxes to be payable (other than those that may possibly
be payable by the MPL Shareholder as a result of the contribution of their
shares of MPL Capital Stock to IAMK) or cause any lien, charge, or encumbrance
to secure any Taxes to be created either immediately or upon the nonpayment of
any Taxes other than on the properties or assets of the MPL Shareholder. The
Internal Revenue Service has audited and settled or the statute of limitations
has run upon all federal income tax returns of IAMK for all taxable years up to
and including the taxable year ended February 28, 2004. IAMK has filed all
federal, state, local, and foreign tax returns required to be filed by it; has
delivered to the MPL Shareholder a true and correct copy of each such return
which was filed in the past six years; has paid (or has established on the Last
IAMK Balance Sheet a reserve for) all Taxes, assessments, and other governmental
charges payable or remittable by it or levied upon it or its properties, assets,
income, or franchises which are due and payable; and has delivered to the MPL
Shareholder a true and correct copy of any report as to adjustments received by
it from any taxing authority during the past six years and a statement as to any
litigation, governmental or other proceeding (formal or informal), or
investigation pending, threatened, or in prospect with respect to any such
report or the subject matter of such report.
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(e) Litigation and Claims. Except as described in Section G of the IAMK
Disclosure Letter, there is no litigation, arbitration, claim, governmental or
other proceeding (formal or informal), or investigation pending or, to the best
of IAMK's knowledge, threatened, or in prospect (or any basis therefor known to
IAMK) with respect to IAMK or any of its businesses, properties, or assets. IAMK
is not affected by any present or threatened strike or other labor disturbance
nor to the knowledge of IAMK, is any union attempting to represent any employee
of IAMK as collective bargaining agent. IAMK is not in violation of, or in
default with respect to, any law, rule, regulation, order, judgment, or decree
which violation or default would have a material adverse effect on IAMK or its
business and operations; nor is IAMK required to take any action in order to
avoid such violation or default.
(f) Properties.
(i) IAMK owns no real property. IAMK has good title to all
personal properties and assets material to IAMK and used in its businesses or
owned by it (except real and other properties and assets material to IAMK as are
held pursuant to leases or licenses described in Section B or C of the IAMK
Disclosure Letter), free and clear of all liens, mortgages, security interests,
pledges, charges, and encumbrances (except such as are listed in Section D of
the IAMK Disclosure Letter).
(ii) Set forth in Section B of the IAMK Disclosure Letter is a
true and complete list of all tangible properties and assets owned by IAMK or
leased or licensed by IAMK from or to a third party (including inventory but not
including Intangibles (as hereinafter defined)), and with respect to such
properties and assets leased or licensed by IAMK from or to a third party, a
description of such lease or license. All such properties and assets (including
Intangibles) owned by IAMK are reflected on the Last IAMK Balance Sheet (except
for acquisitions subsequent to the Last IAMK Balance Sheet Date and prior to the
Closing Date, which are either noted in Section B or C of the IAMK Disclosure
Letter or are approved in writing by MPL). All tangible properties and assets
owned by IAMK or leased or licensed by IAMK from or to a third party are in good
and usable condition (reasonable wear and tear which is not such as to affect
adversely the operation of the businesses of IAMK excepted).
(iii) To the best of IAMK's knowledge, no real property leased
or licensed by IAMK from or to a third party lies in an area which is, or will
be, subject to zoning, use, or building code restrictions which would prohibit,
and, to the best of IAMK's knowledge, no state of facts relating to the actions
or inaction of another person or entity or his or its ownership, leasing, or
licensing of any real or personal property exists or will exist which would
prevent, the continued effective ownership, leasing, or licensing of such real
property in the businesses in which IAMK is now engaged or the businesses in
which it contemplates engaging.
(iv) The properties and assets (including Intangibles (as
hereinafter defined)) owned by IAMK (other than those leased or licensed by IAMK
to a third party) or leased or licensed by IAMK from a third party constitute
all such properties and assets which are necessary to the businesses of IAMK as
presently conducted.
(v) IAMK has not caused or permitted its businesses
properties, or assets to be used to generate, manufacture, refine, transport,
treat, store, handle, dispose of, transfer, produce, or process any Hazardous
Substance (as such term is defined in this Section 2.01(f)(v)) except in
compliance with all applicable laws, rules, regulations, orders, judgments, and
decrees, and has not caused or permitted the Release (as such term is defined in
this Section 2.01(f)(v)) of any Hazardous Substance on or off the site of any
property of IAMK. The term "Hazardous Substance" shall mean any hazardous waste,
as defined by 42 U.S.C. ss.6903(5), any hazardous substance, as defined by 42
U.S.C. ss.9601(14), any pollutant or contaminant, as defined by 42 U.S.C.
ss.9601(33), and all toxic substances, hazardous materials, or other chemical
substances regulated by any other law, rule, or regulation. The term "Release"
shall have the meaning set forth in 42 U.S.C. ss.9601(22).
(g) Contracts and Other Instruments. Section D of the IAMK Disclosure
Letter contains a true and correct statement of the information required to be
contained therein regarding material contracts, agreements, instruments, leases,
licenses, arrangements, or understandings with respect to IAMK. IAMK has
furnished to the MPL Shareholder (i) the certificate of incorporation (or other
charter document) and by-laws of IAMK and all amendments thereto, as presently
in effect, and (ii) the following: (A) true and correct copies of all material
contracts, agreements, and instruments referred to in Section D of the IAMK
Disclosure Letter; (B) true and correct copies of all material leases and
licenses referred to in Section B or C of the IAMK Disclosure Letter hereto; and
(C) true and correct written descriptions of all material supply, distribution,
agency, financing, or other arrangements or understandings referred to in
Section B or C of the IAMK Disclosure Letter. To the best of IAMK's knowledge,
neither IAMK nor (to the knowledge of IAMK) any other party to any such material
contract, agreement, instrument, lease, or license is now or expects in the
future to be in violation or breach of, or in default with respect to complying
with, any term thereof, and each such material contract, agreement, instrument,
lease, or license is in full force and is (to the best of IAMK's knowledge in
the case of third parties) the legal, valid, and binding obligation of the
parties thereto and (subject to applicable bankruptcy, insolvency, and other
laws affecting the enforceability of creditors' rights generally) is enforceable
as to them in accordance with its respective terms. Each such material supply,
distribution, agency, financing, or other arrangement or understanding is a
valid and continuing arrangement or understanding; neither IAMK nor any other
party to any such arrangement or understanding has given notice of termination
or taken any action inconsistent with the continuance of such arrangement or
understanding; and the execution, delivery, and performance of this Agreement
will not prejudice any such arrangement or understanding in any way. IAMK enjoys
peaceful and undisturbed possession under all material leases and licenses under
which it is operating. IAMK is not party to, or bound by, any contract,
agreement, instrument, lease, license, arrangement, or understanding, or subject
to any charter or other restriction, which has had or (to the knowledge of IAMK)
may in the future have a material adverse effect on the financial condition,
results of operations, businesses, properties, assets, liabilities, or future
prospects of IAMK. IAMK has not engaged within the last five years in, is not
engaging in, and does not intend to engage in any transaction with, and has not
had within the last five years, does not now have, and does not intend to have
any material contract, agreement, instrument, lease, license, arrangement, or
understanding with, any stockholder of IAMK, any director, officer, or employee
of IAMK (except for employment agreements listed in Section D of the IAMK
Disclosure Letter and employment and compensation arrangements described in
Section E of the IAMK Disclosure Letter), any relative or affiliate of any
stockholder of IAMK or of any such director, officer, or employee, or any other
corporation or enterprise in which any stockholder of IAMK, any such director,
officer, or employee, or any such relative or affiliate then had or now has a 5%
or greater equity or voting or other substantial interest, other than those
listed and so specified in Section D of the IAMK Disclosure Letter. The stock
ledgers and stock transfer books relating to all issuances and transfers of
stock by IAMK and the minute book records of IAMK and all proceedings of the
stockholders and the Board of Directors and committees thereof of IAMK since
their respective incorporations made available to counsel to MPL and the MPL
Shareholder are the original stock ledgers and stock transfer books and minute
book records of IAMK or exact copies thereof. IAMK is not in violation or breach
of, or in default with respect to, any term of its certificate of incorporation
(or other charter document) or by-laws.
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(h) Employees.
(i) IAMK does not have, or contribute to, any pension,
profit-sharing, option, other incentive plan, or any other type of Employee
Benefit Plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), or has any obligation to or
customary arrangement with employees for bonuses, incentive compensation,
vacations, severance pay, sick pay, sick leave, insurance, service award,
relocation, disability, tuition refund, or other benefits, whether oral or
written, except as set forth in Section E of the IAMK Disclosure Letter. IAMK
has furnished to MPL and the MPL Shareholder: (A) true and correct copies of all
documents evidencing plans, obligations, or arrangements referred to in Section
E of the IAMK Disclosure Letter (or true and correct written summaries, so
initialed, of such plans, obligations, or arrangements to the extent not
evidenced by documents) and true and correct copies, so initialed, of all
documents evidencing trusts, summary plan descriptions, and any other summaries
or descriptions relating to any such plans; (B) the two most recent annual
reports (Form 5500's), if any, including all schedules thereto and the most
recent annual and periodic accounting of related plan assets with respect to
each Employee Benefit Plan; (C) the two most recent actuarial valuations with
respect to each Pension Plan (as defined in Section 3(2) of ERISA) subject to
Title IV of ERISA; and (D) the most recent determination letter issued by the
Internal Revenue Service with respect to each Pension Plan.
(ii) If any Employee Benefit Plan of IAMK were to be
terminated on the day prior to Closing Date, (A) no liability under Title IV of
ERISA would be incurred by IAMK or MPL and (B) all Accrued Benefits (as defined
in this Section 2.01(h)(ii)) to such day prior to the Closing Date (whether or
not vested) would be fully funded in accordance with the assumptions contained
in the regulations of the Pension Benefit Guaranty Corporation governing the
funding of terminated defined benefit plans. For purposes hereof, "Accrued
Benefits" shall include the value of disability, pre-retirement, death benefits,
and all supplements, subsidized, ancillary, and optional forms of benefits. All
Accrued Liabilities (for contributions or otherwise) (as defined in this Section
2.01(h)(ii)) of IAMK as of the Closing Date to each Employee Benefit Plan and
with respect to each obligation to, or customary arrangement with, employees for
bonuses, incentive compensation, vacations, severance pay, sick pay, sick leave,
insurance, service award, relocation, disability, tuition refund, or other
benefits, whether oral or written, have been paid or accrued for all periods
ending prior to the Closing Date and no payment to any Employee Benefit Plan or
with respect to any such obligation or arrangement since the Last IAMK Balance
Sheet Date has been disproportionately large compared to prior payments. For
purposes hereof, "Accrued Liabilities" shall include a pro rata contribution to
each Employee Benefit Plan or with respect to each such obligation or
arrangement for that portion of a plan year or other applicable period which
commences prior to, and ends after, the Closing Date, and Accrued Liabilities
for any portion of a plan year or other applicable period shall be determined by
multiplying the liability for the entire such year or period by a fraction, the
numerator of which is the number of days preceding the Closing Date in such year
or period and the denominator of which is the number of days in such year or
period, as the case may be.
(iii) There has been no violation of the reporting and
disclosure requirements imposed either under ERISA or the Code for which a
penalty has been or may be imposed with respect to any Employee Benefit Plan of
IAMK. There has been no breach of fiduciary duty or responsibility with respect
to any Employee Benefit Plan of IAMK. No Employee Benefit Plan of IAMK or
related trust has any liability of any nature, accrued or contingent, including
without limitation liabilities for Taxes, other than for routine payments to be
made in due course to participants and beneficiaries, except as set forth in
Section E of the IAMK Disclosure Letter. IAMK does not have any formal plan or
commitment, whether or not legally binding, to create any additional or modify
any existing Employee Benefit Plan or benefit obligation or arrangement
described in Section 2.01(h)(i)). Each Employee Benefit Plan of IAMK which is a
group health plan within the meaning of Section 5000(b)(1) of the Code is and
has been maintained in full compliance with the applicable requirements of
Section 4980B of the Code. Other than the health care continuation requirements
of Section 4980B of the Code, IAMK does not have any obligation to provide
post-retirement medical benefits or life insurance coverage or any deferred
compensation benefits to any present or former employees. There is no
litigation, arbitration, claim, governmental or other proceeding (formal or
informal), or investigation pending, threatened, or (to the best of IAMK's
knowledge) in prospect (or any basis therefore known to IAMK) with respect to
any Employee Benefit Plan of IAMK or related trust or with respect to any
fiduciary, administrator, or sponsor (in its capacity as such) of any Employee
Benefit Plan. No Employee Benefit Plan of IAMK or related trust and no such
obligation or arrangement is in violation of, or in default with respect to, any
law, rule, regulation, order, judgment, which violation or default would have a
material adverse effect thereon or decree nor is IAMK, any Employee Benefit Plan
of IAMK, or any related trust required to take any action in order to avoid any
such violation or default. No event has occurred, or is (to the best of IAMK's
knowledge) threatened or about to occur, which would constitute a prohibited
transaction under Section 406 of ERISA.
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(iv) Each Pension Plan maintained for the employees of IAMK
has been qualified, from its inception, under Section 401(a) of the Code and any
related trust has been an exempt trust for such period under Section 501 of the
Code. Each Pension Plan has been operated in accordance with its terms. No
Pension Plan which is subject to Title IV of ERISA has an accumulated or waived
funding deficiency within the meaning of Section 412 of the Code. No
investigation or review by the Internal Revenue Service is currently pending or
(to the knowledge of IAMK) is contemplated in which the Internal Revenue Service
has asserted or may assert that any Pension Plan is not qualified under Section
401(a) of the Code or that any related trust is not exempt under Section 501 of
the Code. Neither IAMK, nor any organization to which IAMK is a successor or
parent corporation, within the meaning of Section 4069(b) of ERISA, has divested
itself of any entity maintaining or with an obligation to contribute to any
Pension Plan which had an "amount of unfunded benefit liabilities," as defined
in Section 4001(a)(18) of ERISA, at the time of such divestiture. No assessment
of any federal taxes with respect to any Employee Benefit Plan of IAMK has been
made or (to the knowledge of IAMK) is contemplated against IAMK, or any related
trust of any Pension Plan of IAMK, and nothing has occurred which would result
in the assessment of unrelated business taxable income under the Code with
respect to any Employee Benefit Plan of IAMK. Form 5500's have been timely filed
with respect to all Pension Plans of IAMK. No event has occurred or (to the
knowledge of IAMK) is threatened or about to occur which would constitute a
reportable event within the meaning of Section 4043(b) of ERISA. No notice of
termination has been filed by the plan administrator pursuant to Section 4041 of
ERISA or issued by the Pension Benefit Guaranty Corporation pursuant to Section
4042 of ERISA with respect to any Pension Plan of IAMK.
(v) IAMK does not currently contribute to, and has not ever
effectuated either a complete or partial withdrawal from, any multiemployer
Pension Plan within the meaning of Section 3(37) of ERISA.
(vi) Section E of the IAMK Disclosure Letter contains a true
and correct statement of the names, relationship with IAMK, present rates of
compensation (whether in the form of salary, bonuses, commissions, or other
supplemental compensation now or hereafter payable), and aggregate compensation
for the fiscal year ended December 31, 2003 of (A) each director, officer, or
other employee of IAMK whose aggregate compensation for the fiscal year ended
December 31, 2003 exceeded US$25,000 or whose aggregate compensation presently
exceeds the rate of US$25,000 per annum and (B) all sales agents, dealers, or
distributors of IAMK. Since January 1, 2004, IAMK has not changed the rate of
compensation of any of its directors, officers, employees, agents, dealers, or
distributors, nor has any Employee Benefit Plan or program of IAMK been
instituted or amended to increase benefits thereunder. There is no contract,
agreement, plan, arrangement, or understanding covering any person that,
individually or collectively, could give rise to the payment of any amount that
would not be deductible by IAMK by reason of Section 280G of the Code.
(vii) IAMK has not extended or maintained credit, arranged for
the extension of credit, or renewed an extension of credit, in the form of a
personal loan to or for any director or executive officer (or equivalent
thereof) thereof.
(i) Patents, Trademarks, Et Cetera. IAMK does not own or have pending,
and is not licensed or otherwise permitted to use, any material patent, patent
application, trademark, trademark application, service xxxx, copyright,
copyright application, franchise, trade secret, computer program (in object or
source code or otherwise), or other intangible property or asset (collectively,
"Intangibles"), other than as described in Section C of the IAMK Disclosure
Letter. Each Intangible is validly issued and is currently in force and
uncontested in all jurisdictions in which it is used or in which such use is
contemplated. Section C of the IAMK Disclosure Letter contains a true and
correct listing of: (i) all Intangibles which are owned (either in whole or in
part), used by, or licensed to IAMK or which otherwise relate to the businesses
of IAMK, and a description of each such Intangible which identifies its owner,
registrant, or applicant; (ii) all contracts, agreements, instruments, leases,
and licenses and identification of all parties thereto under which IAMK owns or
uses any Intangible (whether or not under license from third parties), together
with the identification of the owner, registrant, or applicant of each such
Intangible; (iii) all contracts, agreements, instruments, leases, and licenses
and identification of all parties thereto under which IAMK grants the right to
use any Intangible; (iv) all validity, infringement, right-to-use, or other
opinions of counsel (whether in-house or outside) which concern the validity,
infringement, or enforceability of any Intangible owned or controlled by a party
other than IAMK which relates to the businesses, properties, or assets of IAMK.
Except as specified in Section C of the IAMK Disclosure Letter, to the knowledge
of IAMK: (v) IAMK is the sole and exclusive owner or licensee of, and (other
than those exclusively licensed by IAMK to a third party) has the right to use,
all Intangibles; (vi) no Intangible is subject to any order, judgment, decree,
contract, agreement, instrument, lease, or license restricting the scope of the
use thereof; (vii) during the last five years, IAMK has not been charged with,
and has not charged others with, unfair competition, infringement of any
Intangible, or wrongful use of confidential information, trade secrets, or
secret processes; and (viii) IAMK is not using any patentable invention,
confidential information, trade secret, or secret process of others. There is no
right under any Intangible necessary to the businesses of IAMK as presently
conducted or as it contemplates conducting, except such as are so designated in
Section C of the IAMK Disclosure Letter. Except as described in Section C of the
IAMK Disclosure Letter, IAMK has not infringed, is not infringing, and has not
received notice of infringement in respect of the Intangibles or asserted
Intangibles of others, nor has IAMK been advised by counsel or others that it is
infringing or may infringe the Intangibles or asserted Intangibles of others if
any currently contemplated business activity is effectuated. To the knowledge of
IAMK, there is no infringement by others of Intangibles of IAMK. As far as IAMK
can reasonably foresee, there is no Intangible or asserted Intangible of others
that may materially adversely affect the financial condition, results of
operations, businesses, properties, assets, liabilities, or future prospects of
IAMK. All material contracts, agreements, instruments, leases, and licenses
pertaining to Intangibles to which IAMK is a party, or to which any of its
businesses, properties, or assets are subject, are in compliance in all material
respects with all laws, rules, regulations, orders, judgments, and decrees
binding on IAMK or to which any of its businesses, properties, or assets are
subject. IAMK did not register any trademark, tradename or service xxxx, design,
or name used by IAMK to identify its products, businesses, or services. Neither
any stockholder of IAMK, any director, officer, or employee of IAMK, any
relative or affiliate of any stockholder of IAMK, any such director, officer, or
employee, nor any other corporation or enterprise in which any stockholder of
IAMK, any such director, officer, or employee, or any such relative or affiliate
had or now has a 5% or greater equity or voting or other substantial interest,
possesses any Intangible which relates to the businesses of IAMK.
(j) Questionable Payments. Neither IAMK, nor any director, member of
management, officer, agent, employee, or other person associated with, or acting
on behalf of, IAMK, nor any stockholder of IAMK has, directly or indirectly:
used any corporate funds for unlawful contributions, gifts, entertainment, or
other unlawful expenses relating to political activity; made any unlawful
payment to foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns from corporate funds; violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or made any
bribe, rebate, payoff, influence payment, kickback, or other unlawful payment.
7
(k) Authority. IAMK has all requisite power and authority to execute,
deliver, and perform this Agreement. All necessary corporate proceedings of IAMK
have been duly taken to authorize the execution, delivery, and performance of
this Agreement thereby. This Agreement has been duly authorized, executed, and
delivered by IAMK, constitutes the legal, valid, and binding obligation of IAMK,
and is enforceable as to IAMK in accordance with its terms. Except as otherwise
set forth in this Agreement, no consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or other
tribunal is required by IAMK for the execution, delivery, or performance of this
Agreement by IAMK. No consent of any party to any material contract, agreement,
instrument, lease, license, arrangement, or understanding to which IAMK is a
party, or to which it or any of its businesses, properties, or assets are
subject, is required for the execution, delivery, or performance of this
Agreement (except such consents referred to in Section D of the IAMK Disclosure
Letter); and the execution, delivery, and performance of this Agreement will not
(if the consents referred to in Section D of the IAMK Disclosure Letter are
obtained prior to the Closing) violate, result in a breach of, conflict with, or
(with or without the giving of notice or the passage of time or both) entitle
any party to terminate or call a default under, entitle any party to receive
rights or privileges that such party was not entitled to receive before this
Agreement was executed under, or create any obligation on the part of IAMK to
which it was not subject immediately before this Agreement was executed under,
any term of any such material contract, agreement, instrument, lease, license,
arrangement, or understanding, or violate or result in a breach of any term of
the certificate of incorporation (or other charter document) or by-laws of IAMK,
or (if the provisions of this Agreement are satisfied) violate, result in a
breach of, or conflict with any law, rule, regulation, order, judgment, or
decree binding on IAMK or to which any of its businesses, properties, or assets
are subject, which violation or breach would have a material adverse effect on
IAMK. Neither IAMK, nor any of its officers, members of management, directors,
employees, or agents has employed any broker or finder or incurred any liability
for any fee, commission, or other compensation payable by any person on account
of alleged employment as a broker or finder, or alleged performance of services
as a broker or finder, in connection with or as a result of this Agreement or
the transactions contemplated hereby and in connection herewith.
(l) Status of Shares of IAMK Common Stock To Be Issued. Assuming
without investigation that the MPL Common Stock outstanding on the Closing Date
are validly authorized, validly issued and fully paid, the shares of IAMK Common
Stock to be issued pursuant to Section 1.02(a) hereof, and, in any case, the
shares of IAMK Common Stock issuable pursuant to Section 3.01(q) hereof, are
validly authorized and, when the such shares of IAMK Common Stock have been duly
delivered pursuant to the terms of this Agreement, such shares of IAMK Common
Stock will be validly issued, fully paid, and nonassessable and will not have
been issued, owned or held in violation of any preemptive or similar right of
stockholder.
(m) Insurance. All policies of fire and other insurance against
casualty and other losses and public liability insurance carried by IAMK are
described in Section F of the IAMK Disclosure Letter (including the risks
covered and limits of such policies) and are in full force and effect. All
premiums in respect of such policies for which premium notices have been
received have been paid in full as the same become due and payable. IAMK has not
failed to give any notice or present any claim under any insurance policy in due
and timely fashion. There are no actual claims or claims threatened in writing,
or claims which the board of directors of IAMK are aware of against IAMK which
could come within the scope of such coverage nor are any such policies currently
threatened with cancellation. There are no outstanding requirements or
recommendations by any insurance company that issued a policy with respect to
any of the respective assets, the businesses, or operations of IAMK or by any
Board of Fire Underwriters or other body exercising similar functions or by any
governmental authority requiring or recommending any repairs or other work to be
done on, or with respect to, any of the assets of IAMK or requiring or
recommending any equipment or facilities to be installed on any premises from
which the businesses of IAMK is conducted or in connection with any of the
respective assets thereof. IAMK does not have any knowledge of any material
proposed increase in applicable insurance rates or of any conditions or
circumstances applicable to the businesses thereof that might result in such
increases. No such policy is terminable by virtue of the transactions
contemplated by this Agreement.
(n) Trading Matters. At the date hereof and at the Closing Date:
(i) the IAMK Common Stock is traded and quoted in the pink sheet over the
counter market of the National Association of Securities Dealers;
(ii) IAMK has and shall have performed or satisfied all of its undertakings to,
and of its obligations and requirements with, the SEC; and
(iii) IAMK has not, and shall not have taken any action that
would preclude, or otherwise jeopardize, the inclusion of the IAMK Common Stock
for quotation on the OTC Bulletin Board.
8
(o) Reorganization.
(i) IAMK has not taken and has not agreed to take any action
(other than actions contemplated by this Agreement) that could reasonably be
expected to prevent the transactions contemplated by this Agreement from
constituting a "reorganization" under section 368(b) of the Code or as an
acquisition of in excess of 80% of the stock of a corporation in exchange for
property under Section 351 of the Code. IAMK is not aware of any agreement, plan
or other circumstance that could reasonably be expected to prevent the
transactions contemplated by this Agreement from so qualifying.
(ii) IAMK has no plan or intention to reacquire, and, to
IAMK's knowledge, no person related to IAMK within the meaning of Treasury
Regulations Section 1.368-1 has a plan or intention to acquire, any of the IAMK
Common Stock to be issued pursuant to Section 1.02(a) hereof.
(p) Completeness of Disclosure. No representation or warranty by IAMK
in this Agreement contains or, and at the Closing Date will contain, an untrue
or misleading statement of material fact or omits or, at the Closing Date, will
omit to state a material fact required to be stated therein or necessary to make
the statements made not misleading.
(q) Periodic Reporting.
(i) The IAMK Common Stock has been registered under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and IAMK is subject to the
periodic reporting requirements of Section 13 of the Exchange Act. IAMK has
heretofore provided to MPL and the MPL Shareholder true, complete, and correct
copies of all forms, reports, schedules, statements, and other documents
required to be filed by it under the Exchange Act since at least March 2, 2001
as such documents have been amended since the time of the filing thereof (the
"IAMK SEC Documents"). The IAMK SEC Documents, including, without limitation,
any financial statements and schedules included therein, at the time filed or,
if subsequently amended, as so amended, (i) did not contain any untrue statement
of a material fact required to be stated therein or necessary in order to make
the statements therein not misleading and (ii) complied in all respects with the
applicable requirements of the Exchange Act and the applicable rules and
regulations thereunder. The financial statements included in the IAMK SEC
Documents complied when filed as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles in the United States, applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto or, in the case of unaudited financial statements, as permitted by the
rules and regulations of the Commission) and fairly present, subject in the case
of the unaudited financial statements, to customary year end audit adjustments,
the financial position of IAMK as at the dates thereof and the results of its
operations and cash flows.
(ii) The Company maintains disclosure controls and procedures required by Rule
13a-15 or 15d-15 under the Exchange Act; such controls and procedures are
effective to ensure that all material information concerning the Company and its
subsidiaries is made known on a timely basis to the individuals responsible for
the preparation of the Company's filings with the SEC and other public
disclosure documents. IAMK has delivered to MPL copies of, all written
descriptions of, and all policies, manuals and other documents promulgating,
such disclosure controls and procedures. To IAMK's knowledge, each director and
executive officer thereof has filed with the SEC on a timely basis all
statements required by Section 16(a) of the Exchange Act and the rules and
regulations thereunder since January 1, 2002. As used in the this Section
2.01(r), the term "file" shall be broadly construed to include any manner in
which a document or information is furnished, supplied or otherwise made
available to the SEC.
(iii) The Chief Executive Officer and the Chief Financial Officer of IAMK have
signed, and the Company has furnished to the SEC, all certifications required by
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002; such certifications
contain no qualifications or exceptions to the matters certified therein and
have not been modified or withdrawn; and neither IAMK nor any of its officers
has received notice from any governmental entity questioning or challenging the
accuracy, completeness, form or manner of filing or submission of such
certifications.
(iv) IAMK has heretofore provided MPL with complete and correct copies of all
certifications filed with the SEC pursuant to Sections 302 and 906 of
Xxxxxxxx-Xxxxx Act of 2002 and hereby reaffirms, represents and warrants to MPL
the matters and statements made in such certificates.
(r) Compliance with Law and Government Regulations.
(i) IAMK is in compliance with, and is not in violation of, applicable federal,
state, local or foreign statutes, laws and regulations (including without
limitation, any applicable building, zoning or other law, ordinance or
regulation) affecting its properties, assets or the operation of its business.
IAMK is not subject to any order, decree, judgment or other sanction of any
court, administrative agency or other tribunal.
9
(ii) Each of IAMK, its directors and its senior financial officers has consulted
with IAMK's independent auditors and with IAMK's outside counsel with respect
to, and (to the extent applicable to IAMK) is familiar in all material respects
with all of the requirements of, Xxxxxxxx-Xxxxx Act of 2002. IAMK is in
compliance with the provisions of such act applicable to it as of the date
hereof and has implemented such programs and has taken reasonable steps, upon
the advice of IAMK's independent auditors and outside counsel, respectively, to
ensure IAMK's future compliance (not later than the relevant statutory and
regulatory deadlines therefore) with all provisions of such act which shall
become applicable thereto after the date hereof.
(s) Legal Proceedings and History. IAMK hereby represents that, unless
otherwise disclosed herein or in the IAMK Disclosure Letter, no officer,
director or affiliate of IAMK, has been, within the five years ending on the
Closing Date, a party to any bankruptcy petition against such person or against
any business of which such person was affiliated; convicted in a criminal
proceeding or subject to a pending criminal proceeding (excluding traffic
violations and other minor offenses); subject to any order, judgment or decree,
not subsequently reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining, barring, suspending or
otherwise limiting their involvement in any type of business, securities or
banking activities; or found by a court of competent jurisdiction in a civil
action, by the SEC or the Commodity Futures Trading Commission to have violated
a federal or state securities or commodities law, and the judgment has not been
reversed, suspended or vacated.
Section 2.02 Representations and Warranties of MPL. MPL hereby
represents and warrants to, and agrees with, IAMK:
(a) Organization and Qualification. MPL owns no subsidiary or affiliate
corporation or owns any interest in any other enterprise (whether or not such
enterprise is a corporation) other than those disclosed to IAMK in the MPL
Disclosure Letter (as herein defined). Section A of the letter, dated even date
herewith, from MPL to IAMK (the "MPL Disclosure Letter"), correctly sets forth
as to MPL its place of incorporation, principal place of business, jurisdictions
in which it is qualified to do business, and the businesses which it presently
conducts and which it contemplates conducting. MPL is a corporation duly
organized, validly existing, and in good standing under the laws of BVI, with
all requisite power and authority, and all necessary consents, authorizations,
approvals, orders, licenses, certificates, and permits of and from, and
declarations and filings with, all federal, state, local, and other governmental
authorities and all courts and other tribunals, to own, lease, license, and use
its properties and assets and to carry on the businesses in which it is now
engaged and the businesses in which it contemplates engaging. Except in the BVI,
MPL is duly qualified to transact the businesses in which it is engaged. MPL is
in good standing as a foreign corporation in every jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the conduct of
its businesses makes such qualification necessary.
(b) Capitalization. The authorized capital stock of MPL consists of
50,000 shares of US$1.00 each, one hundred and twenty of which shares are issued
and outstanding. Each of the outstanding shares of MPL Capital Stock is validly
authorized, validly issued, fully paid, and nonassessable, has not been issued
and is not owned or held in violation of any preemptive right of stockholders
and by the owners set forth in Section A of the MPL Disclosure Letter, in each
case free and clear of all liens, security interests, pledges, charges,
encumbrances, stockholders' agreements, and voting trusts. There is no
commitment, plan, or arrangement to issue, and no outstanding option, warrant,
or other right calling for the issuance of, any share of MPL Capital Stock or
any security or other instrument convertible into, exercisable for, or
exchangeable for MPL Capital Stock. There is outstanding no security or other
instrument convertible into or exercisable or exchangeable for MPL Capital
Stock.
(c) Financial Condition. MPL has delivered to IAMK true and correct
copies of the following: proforma audited combined balance sheets of MPL as of
December 31, 2002 and December 31, 2003; and proforma audited combined
statements of operations, statements of stockholders' equity, and statements of
cash flows of MPL for the two years ended December 31, 2002 and December 31,
2003. Each such balance sheet presents fairly the financial condition, assets,
liabilities, and stockholders' equity of MPL as of its date; each such statement
of income and consolidated statement of stockholders' equity presents fairly the
results of operations of MPL for the period indicated; and each such statement
of cash flows presents fairly the information purported to be shown therein. The
financial statements referred to in this Section 2.02(c) have been prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved and are in accordance with
the books and records of MPL. Since December 31, 2003:
(i) there has at no time been a material adverse change in the
financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of MPL;
(ii) MPL has not authorized, declared, paid, or effected any
dividend or liquidating or other distribution in respect of its capital stock or
any direct or indirect redemption, purchase, or other acquisition of any stock
of MPL;
(iii) The operations and businesses of MPL have been conducted
in all respects only in the ordinary course, except for the transactions
contemplated hereby and in connection herewith;
(iv) There has been no accepted purchase order or quotation,
arrangement, or understanding for future sale of the products or services of MPL
that MPL expects will not be profitable; and
(v) MPL has not suffered an extraordinary loss (whether or not
covered by insurance) or waived any right of substantial value.
10
There is no fact known to MPL which materially adversely affects or in the
future (as far as MPL can reasonably foresee) may materially adversely affect
the financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of MPL; provided, however, that MPL expresses
no opinion as to political or economic matters of general applicability. MPL has
made known, or caused to be made known, to the accountants or auditors who have
prepared, reviewed, or audited the aforementioned consolidated financial
statements all material facts and circumstances which could affect the
preparation, presentation, accuracy or completeness thereof. The statement of
combined operations of MPL for the year ended December 31, 2003 shall be audited
in accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved, shall contain all
certifications and statements required pursuant to the SEC's Order, dated June
27, 2002, pursuant to Section 21(a)(1) of the Exchange Act (File No. 4-460),
Rule 13a-14 or 15d-14 under the Exchange Act, or 18 U.S.C. Section 1350
(Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002) with respect to the
report relating thereto, and shall indicate that: (vi) the gross revenue of MPL
for such period shall be approximately US$5,000,000 and net income of at least
US$3,500,000.
(d) Tax and Other Liabilities. MPL does not have any material liability
of any nature, accrued or contingent, including, without limitation, liabilities
for Taxes, and liabilities to customers or suppliers, other than the following:
(i) Liabilities for which full provision has been made on the
combined proforma balance sheet and the notes thereto (the "Last MPL Balance
Sheet") as of December 31, 2003 (the "Last MPL Balance Sheet Date") referred to
in Section 2.02(c); and
(ii) Other liabilities arising since the Last MPL Balance
Sheet Date and prior to the Closing Date in the ordinary course of business
(which shall not include liabilities to customers on account of defective
products or services) or in connection with the transactions contemplated hereby
or in connection herewith which are not inconsistent with the representations
and warranties of MPL or any other provision of this Agreement.
Without limiting the generality of the foregoing, the amounts set up as
provisions for Taxes on the Last MPL Balance Sheet are sufficient for all
accrued and unpaid Taxes of MPL, whether or not due and payable and whether or
not disputed, under tax laws, as in effect on the Last MPL Balance Sheet Date or
now in effect, for the period ended on such date and for all fiscal periods
prior thereto. The execution, delivery, and performance of this Agreement by MPL
will not cause any Taxes to be payable other than by the stockholders of MPL or
cause any lien, charge, or encumbrance to secure any Taxes to be created either
immediately or upon the nonpayment of any Taxes other than on the properties or
assets of the stockholders of MPL. MPL was incorporated in the BVI under the
International Business Companies Act and is exempted from tax filings in the
BVI. MPL has not been required to file any tax returns by any overseas tax
authorities or required to pay any taxes, assessments, and other governmental
charges payable or remittable by it or levied upon it or its properties, assets,
income, or franchises which are due and payable. MPL is not subject to any
litigation, governmental or other proceeding (formal or informal), or
investigation pending, threatened, or in prospect with respect to any such
report or the subject matter of such report.
(e) Litigation and Claims. There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or investigation pending,
threatened, or, to the best of MPL's knowledge, in prospect (or any basis
therefor known to MPL), with respect to MPL or any of its businesses,
properties, or assets. MPL is not affected by any present or threatened strike
or other labor disturbance nor to the knowledge of MPL is any union attempting
to represent any employee of MPL as collective bargaining agent. MPL is not in
violation of, or in default with respect to, any law, rule, regulation, order,
judgment, or decree which violation or default would have a material adverse
effect upon MPL; nor is MPL required to take any action in order to avoid such
violation or default.
(f) Properties.
(i) MPL does not own any legal or equitable interest in any
real property. MPL has good title to all other properties and assets
material to MPL, used in its business or owned by it (except real and
other properties and assets as are held pursuant to leases or licenses
described in Section B or C of the MPL Disclosure Letter), free and
clear of all liens, mortgages, security interests, pledges, charges,
and encumbrances (except such as are listed in Section D of the MPL
Disclosure Letter).
(ii) All accounts and notes receivable reflected on the Last
MPL Balance Sheet, or arising since the Last MPL Balance Sheet Date,
have been collected, or are and will be good and collectible, in each
case at the aggregate recorded amounts thereof without right of
recourse, defense, deduction, return of goods, counterclaim, offset, or
set off on the part of the obligor, and, if not collected, can
reasonably be anticipated to be paid within 180 days of the date
incurred.
(iii) All production in progress of MPL is usable, in current
production and marketable, on a normal basis in the existing film
production business of MPL.
(iv) Attached as Section B of the MPL Disclosure Letter is a
true and complete list of the classes of all tangible properties and
assets owned by MPL or leased or licensed by MPL from or to a third
party (including inventory but not including Intangibles, as defined in
Section 2.02(i)), and with respect to such properties and assets leased
or licensed by MPL from or to a third party, a description of such
lease or license. All such properties and assets (including
Intangibles) owned by MPL are reflected on the Last MPL Balance Sheet
(except for acquisitions subsequent to the Last MPL Balance Sheet Date
and prior to the Closing Date which are either noted in Section B or C
of the MPL Disclosure Letter or are approved in writing by IAMK). All
real and other tangible properties and assets owned by MPL or leased or
licensed by MPL from or to a third party are in good and usable
condition (reasonable wear and tear which is not such as to affect
adversely the operation of the business of MPL excepted).
(v) To the best of MPL's knowledge, no real property owned by
MPL or leased or licensed by MPL from or to a third party lies in an
area which is, or will be, subject to zoning, use, or building code
restrictions which would prohibit, and, to the best of MPL's knowledge,
no state of facts relating to the actions or inaction of another person
or entity or his or its ownership, leasing, or licensing of any real or
personal property exists or will exist which would prevent, the
continued effective ownership, leasing, or licensing of such real
property in the businesses in which MPL is now engaged or the
businesses in which it contemplates engaging.
(vi) The properties and assets (including Intangibles) owned
by MPL (other than those leased or licensed by MPL to a third party) or
leased or licensed by MPL from a third party constitute all such
properties and assets which are necessary to the business of MPL as
presently conducted or as it contemplates conducting.
(vii) MPL has not caused or permitted its businesses
properties, or assets to be used to generate, manufacture, refine,
transport, treat, store, handle, dispose of, transfer, produce, or
process any Hazardous Substance (as such term is defined in Section
2.01(f)(v)) except in compliance with all applicable laws, rules,
regulations, orders, judgments, and decrees, and has not caused or
permitted the Release (as such term is defined in Section 2.01(f)(v))
of any Hazardous Substance on or off the site of any property of MPL.
11
(g) Contracts and Other Instruments. Section D of the MPL Disclosure
Letter contains a true and correct statement of the information required to be
contained therein regarding material contracts, material agreements,
instruments, leases, licenses, arrangements, or understandings with respect to
MPL. Material contracts and agreements shall mean those contracts and agreements
which have been entered into other than in MPL's ordinary course of business and
which in the opinion of the MPL board, may be material. MPL has furnished to
IAMK: (i) the certificate of incorporation and articles of association of MPL
(or, in each case, the comparable charter documents, if any, under applicable
law) and all amendments thereto, as presently in effect, certified by the
Secretary or an authorized signatory of MPL and (ii) the following: (A) true and
correct copies of all material contracts, material agreements, and instruments
referred to in Section D of the MPL Disclosure Letter; (B) true and correct
copies of all material leases and licenses referred to in Section B or C of the
MPL Disclosure Letter; and (C) true and correct written descriptions of all
material supply, distribution, agency, financing, or other arrangements or
understandings referred to in Section D of the MPL Disclosure Letter. Except as
set forth in Section D of the MPL Disclosure Letter, MPL is not party to any
employment agreement with any employee thereof. To the best of MPL's knowledge,
none of MPL or any other party to any such contract, agreement, instrument,
lease, or license is now or expects in the future to be in violation or breach
of, or in default with respect to complying with, any term thereof, and each
such material contract, agreement, instrument, lease, or license is in full
force and is (to the best of MPL's knowledge in the case of third parties) the
legal, valid, and binding obligation of the parties thereto and (subject to
applicable bankruptcy, insolvency, and other laws affecting the enforceability
of creditors' rights generally) is enforceable as to them in accordance with its
terms. Each such material supply, distribution, agency, financing, or other
arrangement or understanding is a valid and continuing arrangement or
understanding; none of MPL or any other party to any such arrangement or
understanding has given notice of termination or taken any action inconsistent
with the continuance of such arrangement or understanding; and the execution,
delivery, and performance of this Agreement will not prejudice any such
arrangement or understanding in any way. MPL enjoys peaceful and undisturbed
possession under all leases and licenses under which it is operating. MPL is not
party to or bound by any contract, agreement, instrument, lease, license,
arrangement, or understanding, or subject to any charter or other restriction,
which has had or, to the best of MPL's knowledge, may in the future have a
material adverse effect on the financial condition, results of operations,
businesses, properties, assets, liabilities, or future prospects of MPL and,
following the consummation of the transactions contemplated hereby, IAMK. MPL
has not engaged within the last five years in, is engaging in, or intends to
engage in any transaction with, or has had within the last five years, now has,
or intends to have any contract, agreement, instrument, lease, license,
arrangement, or understanding with, any stockholder of MPL, any director,
officer, or employee of MPL (except for employment agreements listed in Section
D of the MPL Disclosure Letter and employment and compensation arrangements
described in Section E of the MPL Disclosure Letter), any relative or affiliate
of any stockholder of MPL, any such director, officer, or employee, or any other
corporation or enterprise in which any stockholder of MPL, any such director,
officer, or employee, or any such relative or affiliate then had or now has a 5%
or greater equity or voting or other substantial interest, other than those
listed and so specified in Section D of the MPL Disclosure Letter. The stock
ledgers and stock transfer books and the minute book records of MPL relating to
all issuances and transfers of stock by MPL and all proceedings of the
stockholders and the Board of Directors and committees thereof of MPL since its
incorporation made available to IAMK are the original stock ledgers and stock
transfer books and minute book records of MPL or exact copies thereof. MPL is
not in violation or breach of, or in default with respect to, any term of its
certificate of incorporation or articles of association (or the comparable
charter document, if any, under applicable law).
12
(h) Employees.
(i) MPL does not have, or contribute to, any pension,
profit-sharing, option, other incentive plan, or any other type of Employee
Benefit Plan or has any obligation to or customary arrangement with employees
for bonuses, incentive compensation, vacations, severance pay, sick pay, sick
leave, insurance, service award, relocation, disability, tuition refund, or
other benefits, whether oral or written, except as set forth in Section E of the
MPL Disclosure Letter. MPL has furnished to IAMK true and correct copies, of all
documents evidencing plans, obligations, or arrangements referred to in Section
E of the MPL Disclosure Letter (or true and correct written summaries of such
plans, obligations, or arrangements to the extent not evidenced by documents)
and true and correct copies, so initialed, of all documents evidencing trusts,
summary plan descriptions, and any other summaries or descriptions relating to
any such plans.
(ii) Section E of the MPL Disclosure Letter contains a true
and correct statement of the names, relationship with MPL, present rates of
compensation (whether in the form of salary, bonuses, commissions, or other
supplemental compensation now or hereafter payable), and aggregate compensation
for the fiscal year ended December 31, 2003 of (A) each director, officer, or
other employee of MPL whose aggregate compensation for the fiscal year ended
December 31, 2003 exceeded US$25,000 or whose aggregate compensation presently
exceeds the rate of US$25,000 per annum and (B) all sales agents, dealers, or
distributors of MPL. Since December 31, 2003, MPL has not changed the rate of
compensation of any of its directors, officers, employees, agents, dealers, or
distributors, nor has any Employee Benefit Plan or program of MPL been
instituted or amended to increase benefits thereunder.
(i) Patents, Trademarks, Et Cetera. MPL does not own or have pending,
and is not licensed or otherwise permitted to use, any material Intangible,
other than as described in Section C of the MPL Disclosure Letter. Each
Intangible is validly issued and is currently in force and uncontested in all
jurisdictions in which it is used or in which such use is contemplated. Section
C of the MPL Disclosure Letter contains a true and correct listing of: (i) all
Intangibles which are owned (either in whole or in part), used by, or licensed
to MPL or which otherwise relate to the businesses of MPL, and a description of
each such Intangible which identifies its owner, registrant, or applicant; (ii)
all contracts, agreements, instruments, leases, and licenses and identification
of all parties thereto under which MPL owns or uses any Intangible (whether or
not under license from third parties), together with the identification of the
owner, registrant, or applicant of each such Intangible; (iii) all contracts,
agreements, instruments, leases, and licenses and identification of all parties
thereto under which MPL grants the right to use any Intangible; and (iv) all
validity, infringement, right-to-use, or other opinions of counsel (whether
in-house or outside) which concern the validity, infringement, or enforceability
of any Intangible owned or controlled by a party other than MPL which relates to
the businesses, properties, or assets of MPL. Except as specified in Section C
of the MPL Disclosure Letter: (v) MPL is the sole and exclusive owner or
licensee of, and (other than those licensed by MPL to a third party) has the
right to use, all Intangibles; (vi) no Intangible is subject to any order,
judgment, decree, contract, agreement, instrument, lease, or license restricting
the scope of the use thereof; (vii) during the last five years, MPL has not been
charged with, and has not charged others with, unfair competition, infringement
of any Intangible, or wrongful use of confidential information, trade secrets,
or secret processes; and (viii) MPL is not using any patentable invention,
confidential information, trade secret, or secret process of others. There is no
right under any Intangible necessary to the businesses of MPL as presently
conducted or as it contemplates conducting, except such as are so designated in
Section C of the MPL Disclosure Letter. MPL has not infringed, is not
infringing, and has not received notice of infringement in respect of the
Intangibles or asserted Intangibles of others, nor has MPL been advised by
counsel or others that it is infringing or may infringe the Intangibles or
asserted Intangibles of others if any currently contemplated business activity
is effectuated. To the knowledge of MPL, there is no infringement by others of
Intangibles of MPL. As far as MPL can foresee, there is no Intangible or
asserted Intangible of others that may materially adversely affect the financial
condition, results of operations, businesses, properties, assets, liabilities,
or future prospects of MPL. All contracts, agreements, instruments, leases, and
licenses pertaining to Intangibles to which MPL is a party, or to which any of
its businesses, properties, or assets are subject, are in compliance with all
laws, rules, regulations, orders, judgments, and decrees binding on MPL or to
which any of its businesses, properties, or assets are subject. There is no
trademark, tradename or service xxxx used by MPL to identify, respectively, its
products, businesses, or services. Neither the MPL Shareholder, any director,
officer, or employee of MPL, any relative or affiliate of the MPL Shareholder or
any such director, officer, or employee, nor any other corporation or enterprise
in which the MPL Shareholder, any such director, officer, or employee, or any
such relative or affiliate had or now has a 5% or greater equity or voting or
other substantial interest, possesses any Intangible which relates to the
businesses of MPL.
13
() Questionable Payments. Neither MPL, nor any director, officer,
agent, employee, or other person associated with, or acting on behalf of, MPL,
nor the MPL Shareholder, has, directly or indirectly: used any corporate funds
for unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or made any bribe, rebate, payoff, influence
payment, kickback, or other unlawful payment.
(k) Authority. MPL has all requisite power and authority to execute,
deliver, and perform this Agreement. All necessary corporate proceedings of MPL
have been duly taken to authorize the execution, delivery, and performance of
this Agreement by MPL. This Agreement has been duly authorized, executed, and
delivered by MPL, constitutes the legal, valid, and binding obligation of MPL,
and is enforceable as to MPL in accordance with its terms. Except as otherwise
set forth in this Agreement, no consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or other
tribunal is required by MPL for the execution, delivery, or performance of this
Agreement by MPL. No consent of any party to any material contract, material
agreement, instrument, lease, license, arrangement, or understanding to which
MPL is a party, or to which its or any of its businesses, properties, or assets
are subject, is required for the execution, delivery, or performance of this
Agreement (except such consents referred to in Section D of the MPL Disclosure
Letter); and the execution, delivery, and performance of this Agreement will not
(if the consents referred to in Section D of the MPL Disclosure Letter are
obtained prior to the Closing) violate, result in a breach of, conflict with, or
(with or without the giving of notice or the passage of time or both) entitle
any party to terminate or call a default under, entitle any party to receive
rights or privileges that such party was not entitled to receive immediately
before this Agreement was executed under, or create any obligation on the part
of MPL or IAMK to which it was not subject immediately before this Agreement was
executed under, any term of any such material contract, agreement, instrument,
lease, license, arrangement, or understanding, or violate or result in a breach
of any term of the certificate of incorporation or by-laws of MPL (or the
comparable charter documents, if any, under applicable law), or (if the
provisions of this Agreement are satisfied) violate, result in a breach of, or
conflict with any law, rule, regulation, order, judgment, or decree binding on
MPL or to which any of its businesses, properties, or assets are subject. Except
as set forth in Section G of the MPL Disclosure Letter, neither MPL nor any of
its officers, directors, employees, or agents has employed any broker or finder
or incurred any liability for any fee, commission, or other compensation payable
by any person on account of alleged employment as a broker or finder, or alleged
performance of services as a broker or finder, in connection with or as a result
of this Agreement or the other transactions contemplated hereby and in
connection herewith.
(l) Insurance. All policies of fire and other insurance against
casualty and other losses and public liability insurance carried by MPL are
described in Section H of the MPL Disclosure Letter (including the risks covered
and limits of such policies) and are in full force and effect. A full and
complete copy of each such insurance policy has been provided to IAMK, and such
policies are summarized in Section F of the MPL Disclosure Letter. All premiums
in respect of such policies for which premium notices have been received have
been paid in full as the same become due and payable. MPL have not failed to
give any notice or present any claim under any insurance policy in due and
timely fashion. There are no actual claims or claims threatened in writing
against MPL which could come within the scope of such coverage nor are any such
policies currently threatened with cancellation. There are no outstanding
requirements or recommendations by any insurance company that issued a policy
with respect to any of the respective assets, the businesses, or operations of
MPL or by any Board of Fire Underwriters or other body exercising similar
functions or by any governmental authority requiring or recommending any repairs
or other work to be done on, or with respect to, any of the respective assets of
MPL or requiring or recommending any equipment or facilities to be installed on
any premises from which the respective businesses of MPL is conducted or in
connection with any of the respective assets thereof. MPL does not have any
knowledge of any material proposed increase in applicable insurance rates or of
any conditions or circumstances applicable to the respective businesses thereof
that might result in such increases. No such policy is terminable by virtue of
the transactions contemplated by this Agreement.
14
(m) Business Conducted in No Other Name. Subject to the next sentence,
all business of MPL has been conducted in its and for their benefit and there
are no parties related or affiliated with MPL, either directly or indirectly,
which are competing for the business of MPL.
(n) Customers and Suppliers. There has been no termination or
cancellation of any relationship between MPL and any material supplier, or any
customer or group of customers which, individually or in the aggregate,
represented more than five (5%) percent of the gross revenues of MPL taken as a
whole during the year ended December 31, 2003, nor is there any reason to
believe that any such terminations or cancellations of such magnitudes are
pending or threatened.
() Completeness of Disclosure. No representation or warranty by MPL in
this Agreement contains, or at the Closing Date will contain, an untrue
statement of material fact or omits or at the Closing Date will omit to state a
material fact required to be stated therein or necessary to make the statements
made not misleading.
(p) Compliance with Law and Government Regulations. MPL is in
compliance in all material respects with, and is not in violation of, applicable
local or foreign statutes, laws and regulations (including without limitation,
any applicable building, zoning or other law, ordinance or regulation) affecting
its properties or the operation of its business. MPL is not subject to any
order, decree, judgment or other sanction of any court, administrative agency or
other tribunal.
Section 2.03 Representations and Warranties of the MPL Shareholder. The
MPL Shareholder hereby represents and warrants to, and agrees with, IAMK as
follows:
(a) Representations and Warranties of MPL. To the knowledge of the MPL
Shareholder, the representations and warranties of MPL set forth in Section 2.02
hereof are true and correct in all material respects. Nothing has come to the
attention of the MPL Shareholder that would lead the MPL Shareholder to believe
that any representation or warranty of MPL set forth on Section 2.02 hereof is
untrue or incorrect in any material respect.
(b) Authority. MPL and the MPL Shareholder have each approved this
Agreement and duly authorized the execution and delivery hereof. The MPL
Shareholder has full power and authority under the laws thereof to execute,
deliver, and perform this Agreement and the transactions contemplated hereby and
in connection herewith.
(c) Ownership of Shares. The MPL Shareholder owns beneficially all of
the shares of MPL Capital Stock. The MPL Shareholder has full power and
authority to transfer such shares of MPL Capital Stock to IAMK under, pursuant
to, and in accordance with, this Agreement, and such shares are free and clear
of any liens, charges, mortgages, pledges or encumbrances and such shares are
not subject to any claims as to the ownership thereof, or any rights, powers or
interest therein, by any third party and are not subject to any preemptive or
similar rights of stockholders.
(d) Investment Representations and Covenants.
(i) The MPL Shareholder represents that it is acquiring the
shares of IAMK Common Stock to be issued pursuant to Section 1.02(a) hereof for
its own account and for investment only and not with a view to distribution or
resale thereof within the meaning of such phrase as defined under the Securities
Act. The MPL Shareholder shall not dispose of any part or all of such shares of
IAMK Common Stock in violation of the provisions of the Securities Act and the
rules and regulations promulgated under the Securities Act by the SEC and all
applicable provisions of state securities laws and regulations.
(ii) The certificate or certificates representing the shares
of IAMK Common Stock shall bear a legend in substantially the form set forth
in Section 1.02(c) hereof.
(iii) The MPL Shareholder acknowledges being informed that the
shares of IAMK Common Stock to be issued pursuant to Section 1.02(a) hereof
shall be unregistered, shall be "restricted securities" as defined in
paragraph (a) of Rule 144 under the Securities Act, and must be held
indefinitely unless (a) they are subsequently registered under the Securities
Act, or (b) an exemption from such registration is available. The MPL
Shareholder further acknowledges that IAMK does not have an obligation to
currently register such securities for the account of MPL Shareholder.
(iv) The MPL Shareholder acknowledges that it has been
afforded access to all material information which they have requested relevant
to its decision to acquire the shares of IAMK Common Stock and to ask
questions of IAMK's management and that, except as set forth herein, neither
IAMK nor anyone acting on behalf of IAMK has made any representations or
warranties to the MPL Shareholder which have induced, persuaded, or stimulated
the MPL Shareholder to acquire such shares of IAMK Common Stock.
(v) Either alone, or together with their investment
advisor(s), the MPL Shareholder has the knowledge and experience in financial
and business matters to be capable of evaluating the merits and risks of the
prospective investment in the shares of IAMK Common Stock, and the MPL
Shareholder is and will be able to bear the economic risk of the investment in
such shares of IAMK Common Stock.
15
ARTICLE III
COVENANTS
Section 3.01 Covenants of IAMK. IAMK covenants and agrees that, after
the date hereof and through the earlier of the Closing or the date of the
termination of this Agreement pursuant to Article IV hereof (the earlier of such
times, the "Release Time"), unless MPL will otherwise approve in writing, which
approval will not be unreasonably withheld:
(a) (i) Until the Release Time, no dividend or liquidating or other
distribution or stock split shall be authorized, declared, paid, or effected by
IAMK in respect of the outstanding shares of IAMK Common Stock.
(ii) Until the Release Time, no share of capital stock of IAMK
or warrant for any such share, right to subscribe to or purchase any such share,
or security convertible into, or exchangeable or exercisable for, any such
share, shall be issued or sold by IAMK.
(b) Until the Release Time, IAMK will afford the officers, directors,
employees, counsel, agents, investment bankers, accountants, and other
representatives of MPL and the MPL Shareholder free and full access to the
plants, properties, books, and records of IAMK. IAMK will permit them to make
extracts from and copies of such books and records, and will from time to time
furnish MPL and the MPL Shareholder with such additional financial and operating
data and other information as to the financial condition, results of operations,
businesses, properties, assets, liabilities, or future prospects of IAMK as MPL
or the MPL Shareholder from time to time may request. Until the Release Time,
IAMK will cause the independent certified public accountants of IAMK to make
available to MPL, its independent certified public accountants, and the MPL
Shareholder, the work papers relating to the audits of IAMK referred to in
Section 2.01(c) of this Agreement.
(c) Until the Release Time, IAMK will conduct its affairs, so that on
the Closing Date, no representation or warranty of IAMK will be inaccurate or
misleading, no covenant or agreement of IAMK will be breached, and no condition
in this Agreement will remain unfulfilled by reason of the actions or omissions
of IAMK. Except as otherwise consented to by MPL in writing, until the Release
Time, IAMK will conduct its affairs in all respects only in the ordinary course.
(d) Until the Release Time, IAMK will immediately advise MPL in a
detailed written notice of any material fact or occurrence or any pending or
threatened material occurrence of which it obtains knowledge and which (if
existing and known at the date of the execution of this Agreement) would have
been required to be set forth or disclosed in or pursuant to this Agreement or
in the IAMK Disclosure Letter, which (if existing and known at any time prior to
or at the Closing) would make the performance by any party of a covenant
contained in this Agreement impossible or make such performance materially more
difficult than in the absence of such fact or occurrence, or which (if existing
and known at the time of the Closing) would cause a condition to any party's
obligations under this Agreement not to be fully satisfied.
(e) IAMK shall use its commercially reasonable efforts to insure that
all confidential information which IAMK or any of its officers, directors,
employees, counsel, agents, investment bankers, or accountants may now possess
or may hereafter create or obtain relating to the financial condition, results
of operations, businesses, properties, assets, liabilities, or future prospects
of MPL, any affiliate of MPL, or any customer or supplier of MPL or any such
affiliate shall not be published, disclosed, or made accessible by any of them
to any other person or entity without the prior written consent of MPL, which
written consent shall not be unreasonably withheld; provided, however, that the
restrictions of this sentence shall not apply (i) as may otherwise be required
by law, (ii) as may be necessary or appropriate in connection with the
enforcement of this Agreement, or (iii) to the extent the information shall have
otherwise become publicly available. IAMK shall, and shall cause all other such
persons and entities to, deliver to MPL all tangible evidence of the
confidential information relating to MPL, any affiliate of MPL, or (insofar as
such confidential information was provided by, or on behalf of, MPL, or any such
affiliate of MPL) any customer or supplier of any of them or any such affiliate
to which the restrictions of the foregoing sentence apply immediately after the
termination of this Agreement pursuant to Article IV or V hereof.
(f) Before IAMK releases any information concerning this Agreement or
any of the other transactions contemplated hereby or in connection herewith
which is intended for or may result in public dissemination thereof, IAMK shall
cooperate with MPL, shall furnish drafts of all documents or proposed oral
statements to MPL for comment, and shall not release any such information
without the written consent of MPL. Nothing contained herein shall prevent IAMK
from releasing any information if required to do so by law.
(g) IAMK shall not make any agreement or reach any understanding not
approved in writing by MPL as a condition for obtaining any consent,
authorization, approval, order, license, certificate, or permit required for the
consummation of the transactions contemplated by this Agreement.
(h) IAMK shall promptly prepare all required or, in the reasonable
opinion of the parties hereto, appropriate Periodic Reports (as hereinafter
defined) and other regulatory filings relating to this Agreement and the
transactions contemplated hereby and in connection herewith. IAMK shall furnish
or cause to be furnished, for inclusion in the Periodic Reports, such
information about IAMK, and IAMK's security holders as may be required or as may
be reasonably requested by MPL, and shall continue to furnish or cause to be
furnished such information as is necessary to keep such information correct and
complete in all material respect until the Release Time. IAMK represents and
warrants that the information that it has furnished to date, taken as a whole,
does not now, and will not at any time prior to the Release Time, (i) contain an
untrue or misleading statement of fact or (ii) omit to state a fact required to
be stated therein or necessary to make the statements therein not false or
misleading. IAMK shall take any action required to be taken by it under state
"blue-sky," securities, or take-over laws in connection with the issuance of
IAMK Common Stock pursuant to the transactions contemplated hereby and in
connection herewith. The filings made by IAMK within the past six years with the
SEC were, if filed under the Exchange Act, prepared in accordance with the then
existing requirements of the Exchange Act and the rules and regulations
thereunder and, if filed under the Securities Act, prepared in accordance with
the then existing requirements of the Securities Act and the rules and
regulations thereunder. Such filings when filed, and the press releases and
other public statements IAMK has made subsequent to the last such filing when
considered together with such filings, did not at the time of filing or issuance
of the press releases or other public statements, as the case may be, and (with
respect to the press releases and other public statements, when considered
together with such filings) do not now (i) contain an untrue statement of a
material fact or (ii) omit to state a material fact required to be stated
therein or necessary to make the statements therein not false or misleading.
16
(i) If, prior to the Release Time, IAMK Common Stock shall be
recapitalized or reclassified or IAMK shall effect any stock dividend, stock
split, or reverse stock split of IAMK Common Stock, then the shares of IAMK
Common Stock to be delivered under this Agreement or upon exercise, conversion,
or exchange of any security to be delivered under this Agreement or assumed by
IAMK as contemplated by this Agreement shall be appropriately and equitably
adjusted to the kind and amount of shares of stock and other securities and
property to which the holders of such shares of IAMK Common Stock or such other
security would have been entitled to receive had such stock or such other
security been issued and outstanding as of the record date for determining
stockholders entitled to participate in such corporate event.
(j) IAMK shall timely prepare and file any declaration or filing
necessary to comply with any transfer tax statutes that require any such filing
before the Closing.
(k) Until the Release Time, IAMK shall not, and shall not authorize or
permit any officer, director, employee, counsel, agent, investment banker,
accountant, or other representative of IAMK, directly or indirectly, to
contemplate or enter into any transaction the effect of which may be to
prohibit, restrict, or delay the consummation of the transactions contemplated
by this Agreement or impair the contemplated benefits to IAMK's stockholders of
the transactions contemplated by this Agreement.
(l) (i) Following the consummation of the transactions contemplated
hereby and in connection herewith, IAMK will cause MPL to continue its historic
business or to use a significant portion of MPL's historic business assets in a
business, in each case within the meaning of section 1.368-1(d) of the Treasury
Regulations, assuming that the assets of, and the business conducted by, MPL at
the Closing Date constitute MPL's historic business assets and historic
business, respectively.
(ii) Following the consummation of the transactions
contemplated hereby and in connection herewith, IAMK will not permit MPL to
issue additional shares that would result in IAMK losing control of MPL within
the meaning of section 368(c) of the Code.
(m) IAMK shall use best efforts to file, within 30 days following the
Closing, with the National Association of Securities Dealers, Inc., or its
affiliates, all information required by Rule 15c2-11 under the Exchange Act,
if required.
(n) Prior to the Closing, IAMK shall cause its certificate and articles
of incorporation to be amended as follows: (i) to cause the corporate name
thereof to be changed to a name nominated by MPL or MPL Shareholder; (ii) to
reverse split the number of shares of IAMK common stock to 9,027,777 shares;
(iii) to increase the number of shares of IAMK Common Stock authorized
thereunder to 200,000,000 shares.
(o) Effective at the Closing, each member of the Board of Directors of
IAMK shall tender his or her respective resignation therefrom and shall
appoint such individuals as MPL may nominate and notified to IAMK as directors
of IAMK.
(p) On or prior to the Closing Date, IAMK shall deliver to MPL and the
MPL Shareholder the completed IAMK Disclosure Letter, which letter shall be
correct and complete in all material respects and in the agreed form between
the parties hereto.
(q) In addition to the shares of IAMK Common Stock to be delivered
pursuant to Sections 1.02(a) and 1.03(a) hereof, 5,195,000 new shares of IAMK
Common Stock shall be issued and delivered in certificated form at the Closing
to, or to the order of, the following: (i) 3,428,700 shares to Orient
Financial Services Limited; (ii) 1,766,300 shares to Emerging Growth Partners,
Inc.
(r) As soon as reasonably practical following the Closing, IAMK shall
apply to have the IAMK Common Stock listed upon the American Stock Exchange or
included for quotation on the Nasdaq Stock Market.
(s) Existing affiliate shareholders of IAMK shall agree to place in
escrow and exchange, on the 91st day following the Closing, 3,000,000
restricted common shares held in excess of two years for 3,000,000 newly
issued restricted common shares issued to MPL's financial advisors, Emerging
Growth Partners, Inc. and Orient Financial Services, Ltd.
Section 3.02 Covenants of MPL. MPL covenants and agrees that, after the
date hereof and through the Release Time, unless IAMK will otherwise approve in
writing, which approval will not be unreasonably withheld or delayed:
(a) Until the Release Time, no amendment will be made in the
certificate of incorporation or articles of association (or, in each case, the
comparable charter documents, if any, under applicable law) of MPL.
(b) Until the Release Time, no share of MPL Capital Stock, option or
warrant for any such share, right to subscribe to or purchase any such share, or
security convertible into, or exchangeable or exercisable for, any such share,
shall be issued or sold by MPL, otherwise than as contemplated by, or in
connection with, this Agreement.
(c) Until the Release Time, no dividend or liquidating or other
distribution or stock split shall be authorized, declared, paid, or effected by
MPL in respect of the outstanding shares of MPL Capital Stock. Until the Release
Time, no direct or indirect redemption, purchase, or other acquisition shall be
made by MPL of shares of MPL Capital Stock.
(d) Until the Release Time, except in the ordinary course of its
business, MPL shall not borrow money, guarantee the borrowing of money, engage
in any transaction, or enter into any material agreement other than in
connection with the transactions contemplated hereby or in connection herewith
or otherwise pursuant to any currently outstanding credit line of MPL. For
purposes of this Agreement and unless otherwise defined, references to
"material", as well as correlative terms (e.g., materially, materiality, etc.),
shall be deemed to refer to amounts of US$50,000 or more or effects or
consequences of US$50,000 or more.
17
(e) Until the Release Time, MPL will afford the officers, directors,
employees, counsel, agents, investment bankers, accountants, and other
representatives of IAMK and lenders, investors, and prospective lenders and
investors free and full access to the plants, properties, books, and records of
MPL, will permit them to make extracts from and copies of such books and
records, and will from time to time furnish IAMK with such additional financial
and operating data and other information as to the financial condition, results
of operations, businesses, properties, assets, liabilities, or future prospects
of MPL as IAMK from time to time may request. Until the Release Time, MPL will
cause the independent certified public accountants of MPL to make available to
IAMK and its independent certified public accountants the work papers relating
to the audits of MPL referred to in Section 2.02(c) of this Agreement.
(f) Until the Release Time, MPL will conduct its affairs so that at the
Closing, no representation or warranty of MPL will be inaccurate in any material
respect, no covenant or agreement of MPL will be breached, and no condition in
this Agreement will remain unfulfilled by reason of the actions or omissions of
MPL. Except as otherwise consented to by IAMK in writing, until the Release
Time, MPL will use its best efforts to preserve the business operations of MPL
intact, to keep available the services of its present personnel, to preserve in
full force and effect the contracts, agreements, instruments, leases, licenses,
arrangements, and understandings of MPL, and to preserve the good will of its
suppliers, customers, and others having business relations with any of them.
(g) Until the Release Time, MPL will immediately advise IAMK in a
detailed written notice of any material fact or occurrence or any pending or
threatened material occurrence of which it obtains knowledge and which (if
existing and known at the date of the execution of this Agreement) would have
been required to be set forth or disclosed in or pursuant to this Agreement or
the MPL Disclosure Letter, which (if existing and known at any time prior to or
at the Closing) would make the performance by any party of a covenant contained
in this Agreement impossible or make such performance materially more difficult
than in the absence of such fact or occurrence, or which (if existing and known
at the time of the Closing) would cause a condition to any party's obligations
under this Agreement not to be fully satisfied.
(h) MPL shall use its commercially reasonable efforts to insure that
all confidential information which MPL or any of its respective officers,
directors, employees, counsel, agents, investment bankers, or accountants may
now possess or may hereafter create or obtain relating to the financial
condition, results of operations, businesses, properties, assets, liabilities,
or future prospects of IAMK, any affiliate thereof, or any customer or supplier
thereof or of any such affiliate shall not be published, disclosed, or made
accessible by any of them to any other person or entity at any time or used by
any of them except in the ordinary course of business and for the benefit of
MPL; provided, however, that the restrictions of this sentence shall not apply
(A) after this Agreement is terminated pursuant to Article IV or V hereof or
otherwise, (B) as may otherwise be required by law, (C) as may be necessary or
appropriate in connection with the enforcement of this Agreement, or (D) to the
extent the information shall have otherwise become publicly available.
(i) Before MPL releases any information concerning this Agreement or
any of the transactions contemplated by this Agreement which is intended for, or
may result in, public dissemination thereof, MPL shall cooperate with IAMK,
shall furnish drafts of all documents or proposed oral statements to IAMK for
comment, and shall not release any such information without the written consent
of IAMK, which consent shall not be unreasonably withheld. Nothing contained
herein shall prevent MPL from releasing any information if required to do so by
law or by regulatory bodies in Hong Kong including The Stock Exchange of Hong
Kong Limited and the Hong Kong Securities and Futures Commission.
(j) MPL shall not make any agreement or reach any understanding not
approved in writing by IAMK as a condition for obtaining any consent,
authorization, approval, order, license, certificate, or permit required for the
consummation of the transactions contemplated by this Agreement.
(k) MPL shall so far as is reasonably required by law or relevant
regulations and not in contravention of any laws or regulations of any
applicable jurisdiction furnish, or cause to be furnished, for inclusion in the
periodic and other reports of IAMK on Forms 8-K, 10-QSB, 10-KSB, 14C, 14F-1, or
otherwise (such periodic and other reports, together with all financial
statements, exhibits, amendments, and supplements thereto, in the form filed by
IAMK with the SEC being hereinafter referred to as the "Periodic Reports"), to
be filed pursuant to the Exchange Act in connection with the transactions
contemplated by this Agreement, or for inclusion in IAMK's filings under state
"blue-sky," securities, or take-over laws, such information about MPL or the MPL
Shareholder as may be required or as may be reasonably requested by IAMK, and
shall continue to furnish or cause to be furnished such information as is
necessary to keep such information correct and complete in all material respect
until the Release Time. MPL represents and warrants that the information that it
has furnished to date, taken as a whole, does not now, and will not at any time
prior to the Release Time, (i) contain an untrue statement of a material fact or
(ii) omit to state a material fact required to be stated therein or necessary to
make the statements therein not false or misleading.
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(l) MPL shall timely prepare and file any declaration or filing
necessary to comply with any transfer tax statutes that require any such filing
before the Closing.
(m) On or prior to the Closing Date, MPL and the MPL Shareholder shall
deliver to IAMK the completed MPL Disclosure Letter, which letter shall be
correct and complete in all material respects.
Section 3.03 Covenants of the MPL Shareholder. The MPL Shareholder
covenants and agrees that, after the date hereof and through the Release Time,
unless IAMK will otherwise approve in writing, which approval will not be
unreasonably withheld, as follows:
(a) The MPL Shareholder will use best efforts to cause MPL to perform
each covenant thereof set forth herein on a timely basis.
(b) Until the earlier of the Release Time, the MPL Shareholder shall
take no action the result of which shall be to cause MPL to make any amendment
in the certificate of incorporation or articles of association (or, in each
case, the comparable charter documents, if any, under applicable law) thereof.
(c) Before the MPL Shareholder release any information concerning this
Agreement or any of the transactions contemplated by this Agreement which is
intended for, or may result in, public dissemination thereof, the MPL
Shareholder shall cooperate with IAMK, shall furnish drafts of all documents or
proposed oral statements to IAMK for comment, and shall not release any such
information without the written consent of IAMK, which consent shall not be
unreasonably withheld. Nothing contained herein shall prevent the MPL
Shareholder from releasing any information if required to do so by law or by
regulatory bodies in Hong Kong including The Stock Exchange of Hong Kong Limited
and the Hong Kong Securities and Futures Commission.
(d) The MPL Shareholder shall furnish, or cause to be furnished, for
inclusion in the Periodic Reports to be filed pursuant to the Exchange Act in
connection with the transactions contemplated by this Agreement, or for
inclusion in IAMK's filings under state "blue-sky," securities, or take-over
laws, such information about MPL or the MPL Shareholder as may be required or as
may be reasonably requested by IAMK, and shall continue to furnish or cause to
be furnished such information as is necessary to keep such information correct
and complete in all material respect until the Release Time. The MPL Shareholder
represents and warrants that the information in writing that they have furnished
to date regarding themselves, taken as a whole, do not now, and will not at any
time prior to the Release Time, (i) contain an untrue statement of a material
fact or (ii) omit to state a material fact required to be stated therein or
necessary to make the statements therein not false or misleading.
ARTICLE IV
CONDITIONS; ABANDONMENT AND TERMINATION
Section 4.01 Right of IAMK to Abandon. IAMK's Board of Directors shall
have the right to abandon or terminate this Agreement if any of the following
conditions shall not be true or shall not have occurred, as the case may be, as
of the specified date or dates:
(a) All representations and warranties of MPL and the MPL Shareholder
contained in this Agreement shall be accurate when made and, in addition, shall
be accurate as of the Closing Date as though such representations and warranties
were then made in exactly the same language by MPL or the MPL Shareholder, as
applicable, and regardless of knowledge or lack thereof on the part of MPL or
the MPL Shareholder (as applicable) or changes beyond its control; as of the
Closing Date, MPL and the MPL Shareholder shall have performed and complied with
all covenants and agreements and satisfied all conditions required to be
performed and complied with by it at or before the Closing Date, respectively,
by this Agreement; and IAMK shall have received a certificate executed by the
chief executive officer and the chief financial officer of MPL and the MPL
Shareholder, dated the Closing Date, to that effect.
(b) MPL and the MPL Shareholder shall have delivered to IAMK at or
prior to the Closing Date such other documents (including certificates of
officers of MPL) as IAMK may reasonably request in order to enable IAMK to
determine whether the conditions to their obligations under this Agreement have
been met and otherwise to carry out the provisions of this Agreement.
(c) All actions, proceedings, instruments, and documents required by
MPL and the MPL Shareholder to carry out this Agreement or incidental thereto
and all other related legal matters shall be subject to the reasonable approval
of counsel to IAMK, and MPL and the MPL Shareholder shall have furnished such
counsel such documents as such counsel may have reasonably requested for the
purpose of enabling them to pass upon such matters.
(d) At the Closing, there shall not be pending any legal proceeding
relating to, or seeking to prohibit or otherwise challenge the consummation of,
the transactions contemplated by this Agreement, or to obtain substantial
damages with respect thereto.
(e) There shall not have been any action taken, or any law, rule,
regulation, order, judgment, or decree proposed, promulgated, enacted, entered,
enforced, or deemed applicable to the transactions contemplated by this
Agreement by any federal, state, local, or other governmental authority or by
any court or other tribunal, including the entry of a preliminary or permanent
injunction, which, in the reasonable judgment of IAMK, (i) makes this Agreement
or any of the transactions contemplated by this Agreement illegal, (ii) results
in a delay in the ability of MPL or IAMK to consummate the transactions
contemplated by this Agreement beyond December 20, 2004, (iii) requires the
divestiture by IAMK of a material portion of the business of either IAMK or of
MPL, (iv) imposes material limitations on the ability of IAMK effectively to
exercise full rights of ownership of shares of MPL including the right to vote
such shares on all matters properly presented to the MPL Shareholder, or (v)
otherwise prohibits, restricts, or delays consummation of the transactions
contemplated by this Agreement or impairs the contemplated benefits to IAMK of
this Agreement or any of the other transactions contemplated by this Agreement.
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(f) The parties to this Agreement shall have obtained at or prior to
the Closing Date all unconditional written approval to this Agreement and to the
execution, delivery, and performance of this Agreement by each of them of
relevant governmental authorities having jurisdiction over IAMK or MPL or the
subject matter of this Agreement.
(g) The parties to this Agreement shall have obtained at or prior to
the Closing Date all consents required for the consummation of the transactions
contemplated by this Agreement from any unrelated third party to any contract,
agreement, instrument, lease, license, arrangement, or understanding to which
any of them is a party, or to which any of them or any of their respective
businesses, properties, or assets are subject.
(h) There shall not have been any material adverse change in the
condition (financial or otherwise), operations, business, assets, liabilities,
earnings or prospects of MPL since the date hereof.
(i) IAMK shall conduct a due diligence review of MPL and the MPL
Shareholder, including, without limitation, a review of the MPL Disclosure
Letter and the documents referenced therein delivered prior to the Closing Date,
and shall be reasonably satisfied with the result of such review.
Section 4.02 Right of MPL and the MPL Shareholder to Abandon. By the
election of the MPL Shareholder, the MPL Shareholder or, otherwise, MPL's Board
of Directors shall have the right to abandon or terminate this Agreement if any
of the following conditions shall not be true or shall not have occurred, as the
case may be, as of the specified date or dates:
(a) All representations and warranties of IAMK contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as of
the Closing Date as though such representations and warranties were then made in
exactly the same language by IAMK and regardless of knowledge or lack thereof on
the part of IAMK or changes beyond its control; as of the Closing Date, IAMK
shall have performed and complied with all covenants and agreements and
satisfied all conditions required to be performed and complied with by them at
or before the Closing Date by this Agreement; and MPL shall have received
certificates executed by the chief executive officer and the chief financial
officer of IAMK, dated the Closing Date, to that effect.
(b) MPL shall have received at the Closing, certificates executed by
the chief executive officer and the chief financial officer of IAMK, dated as of
such dates, to the effect that they have carefully examined the Periodic
Reports, and any amendment or supplement thereto, and, to the best of their
knowledge, (i) neither any Periodic Report, nor any amendment or supplement
thereto (A) contains an untrue statement of a material fact or (B) omits to
state a material fact required to be stated therein or necessary to make the
statements therein not false or misleading, provided in each case that such
untrue statement or omission relates to information furnished by or on behalf
of, or pertaining to, IAMK or any IAMK security holder, (ii) since the date of
the filing of any Periodic Report, no event with respect to IAMK or any IAMK
security holder has occurred which should have been set forth in an amendment or
a supplement to such Periodic Report which has not been set forth in such an
amendment or supplement, (iii) any contract, agreement, instrument, lease, or
license regarding IAMK required to be filed as an exhibit to any Periodic Report
has been filed as an exhibit to or has been incorporated as an exhibit by
reference into such Periodic Report, and (iv) to the effect of clause (k) of
this Section 4.02.
(c) IAMK shall have delivered to MPL and the MPL Shareholder at or
prior to the Closing such other documents (including certificates of officers of
IAMK) as MPL and the MPL Shareholder may reasonably request in order to enable
MPL and the MPL Shareholder to determine whether the conditions to IAMK's
obligations under this Agreement have been met and otherwise to carry out the
provisions of this Agreement.
(d) All actions, proceedings, instruments, and documents required by
IAMK to carry out this Agreement or incidental thereto and all other related
legal matters shall be subject to the reasonable approval of counsel to MPL and
the MPL Shareholder, and IAMK shall have furnished such counsel such documents
as such counsel may have reasonably requested for the purpose of enabling them
to pass upon such matters.
(e) At the Closing Date, there shall not be pending any legal
proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Agreement, or to obtain
substantial damages with respect thereto.
(f) There shall not have been any action taken, or any law, rule,
regulation, order, judgment, or decree proposed, promulgated, enacted, entered,
enforced, or deemed applicable to the transactions contemplated by this
Agreement by any federal, state, local, or other governmental authority or by
any court or other tribunal, including the entry of a preliminary or permanent
injunction, which, in the reasonable judgment of MPL or the MPL Shareholder, (i)
makes this Agreement or any of the transactions contemplated by this Agreement
illegal, (ii) results in a delay in the ability of IAMK or MPL to consummate any
of the transactions contemplated by this Agreement beyond December 20, 2004, or
(iii) otherwise prohibits, restricts, or delays consummation of the other
transactions contemplated by this Agreement or impairs the contemplated benefits
to the MPL Shareholder of this Agreement or any of the transactions contemplated
by this Agreement.
(g) The parties to this Agreement shall have obtained at or prior to
the Closing Date all unconditional written approval to this Agreement and to the
execution, delivery, and performance of this Agreement by each of them of
relevant governmental authorities having jurisdiction over IAMK or MPL or the
subject matter of this Agreement.
(h) At or prior to the Closing Date, IAMK shall have made all filings,
and taken all actions, necessary to comply with all reporting requirements under
federal and state securities laws (including without limitation, applicable
"blue-sky" laws with regard to the issuance of IAMK Common Stock as contemplated
by this Agreement) other than the filing of Form D up to 15 days following the
Closing. Without limiting the generality of the foregoing, any prescribed
periods within which a "blue sky" or securities law administrator may disallow
IAMK's notice of reliance on an exemption from such state's requirements, shall
have elapsed at or prior to the Closing Date.
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(i) The parties to this Agreement shall have obtained at or prior to
the Closing Date all consents required for the consummation of the transactions
contemplated by this Agreement from any unrelated third party to any contract,
agreement, instrument, lease, license, arrangement, or understanding to which
any of them is a party, or to which any of them or any of their respective
businesses, properties, or assets are subject.
(j) MPL and the MPL Shareholder shall conduct a due diligence review of
IAMK, including, without limitation, a review of the IAMK Disclosure Letter and
the documents referenced therein delivered prior to the Closing Date, and same
shall be satisfactory in the reasonable opinion of MPL and the MPL Shareholder.
(k) At the Closing Date, IAMK shall have no assets and no liabilities,
determined in accordance with generally accepted accounting principles in effect
in the United States applied on a basis consistent with that of the financial
statements of IAMK hereinabove referenced.
(l) At or prior to the Closing Date, all holders of 5% or more of the
outstanding IAMK Common Stock immediately prior to such date shall have executed
and delivered to MPL the escrow agreement substantially in the form of Exhibit
4.02(l) hereto, and shall have deposited into the escrow created thereby an
aggregate of 6,000,000 shares of IAMK Common Stock beneficially owned thereby
that are "restricted securities" as defined in Rule 144 under the Securities
Act, that have been held thereby for at least two years.
(m) At or prior to the Closing Date, the officers, directors, and
holders of 5% or more of the outstanding IAMK Common Stock immediately prior to
such date shall have executed and delivered to MPL an agreement mutually
acceptable in form and substance to each of such person or entity, on the one
hand, and MPL, on the other hand, providing for restrictions on resale and a
"leak-out" of securities following the Closing Date.
Section 4.03 Optional Abandonment. In addition to the provisions of
Section 4.01 and Section 4.02 above, the transactions contemplated by this
Agreement may be abandoned or terminated at or before the Closing
notwithstanding adoption and approval of this Agreement and the transactions
contemplated hereby by the stockholders of the parties hereto:
(a) by mutual agreement of the Boards of Directors of IAMK and MPL
Shareholder;
(b) at the option of IAMK's Board of Directors or MPL Shareholder, if
the Closing Date shall not have occurred on or before December 20, 2004 (or such
later date as the parties may agree);
(c) at the option of IAMK's Board of Directors, if facts exist which
render impossible compliance with one or more of the conditions set forth in
Section 4.01 and such are not waived by IAMK; and
(d) at the option of MPL Shareholder if facts exist which render
impossible compliance with one or more of the conditions set forth in Section
4.02 and such are not waived by MPL Shareholder.
Section 4.04 Effect of Abandonment. If the transactions contemplated by
this Agreement are abandoned or terminated as provided for in this Article IV,
except for Sections 3.01(e), 3.02(h), 4.01, 4.02 and 4.03, this Agreement shall
forthwith become wholly void and of no further force or effect without liability
on the part of either party to this Agreement or on the part of any officer,
director, controlling person (if any), employee, counsel, agent, or stockholder
thereof; provided, however, that nothing in this Section 4.04 shall release IAMK
or MPL or any officer, director, controlling person (if any), employee, counsel,
agent, or stockholder thereof from liability for a willful failure to carry out
its respective obligations under this Agreement.
21
ARTICLE V
MISCELLANEOUS
Section 5.01 Expenses. Whether or not the transactions contemplated in
this Agreement are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby, will be paid by
the party incurring such expense or as otherwise agreed to herein.
Section 5.02 Brokers and Finders. Each of the parties hereto
represents, as to itself, that no agent, broker, investment banker or firm or
person is or will be entitled to any broker's or finder's fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement, except as may be otherwise set forth herein or
by separate document.
Section 5.03 Necessary Actions. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper executive
officers and/or directors of IAMK or MPL, as the case may be, or the relevant
MPL Shareholder or MPL Shareholder will take all such necessary action.
Section 5.04 Extension of Time; Waivers. At any time prior to
the Closing Date:
(a) IAMK may (i) extend the time for the performance of any of the
obligations or other acts of MPL or any MPL Shareholder or MPL Shareholder, (ii)
waive any inaccuracies in the representations and warranties of MPL or any MPL
Shareholder or MPL Shareholder, or contained herein or in any document delivered
pursuant hereto by MPL or any MPL Shareholder or MPL Shareholder, and (iii)
waive compliance with any of the agreements or conditions contained herein to be
performed by MPL or any MPL Shareholder or MPL Shareholder. Any agreement on the
part of IAMK to any such extension or waiver will be valid only if set forth in
an instrument, in writing, signed on behalf of IAMK.
(b) MPL and the MPL Shareholder (by action of the MPL Shareholder), may
(i) extend the time for the performance of any of the obligations or other acts
of IAMK, (ii) waive any inaccuracies in the representations and warranties of
IAMK contained herein or in any document delivered pursuant hereto by IAMK and
(iii) waive compliance with any of the agreements or conditions contained herein
to be performed by IAMK. Any agreement on the part of MPL and to any such
extension or waiver will be valid only if set forth in an instrument, in
writing, signed on behalf of MPL.
Section 5.05 Notices. Any notice to any party hereto pursuant to this
Agreement will be in writing and given by Certified or Registered Mail or by
facsimile, addressed as follows:
Interactive Marketing Technology, Inc.
00000 Xxxxxxx Xxxx.. Metrolink Global Limited
Xxxxx 000 Xxxx 000X, 0xx Xxxxx, Xxxxxxx Xxxxx,
Xxxxxx Xxxx, XX 000 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
XXX Xxxx Xxxx
For the attention of Xx. Xxxxxx Goldrod For the attention of Ms. Xxxx Xxxx Xxx,
Xxxxxxx
Fax: (000) 000-0000 Fax: x000 0000 0000
Copy to: Copy to:
Xxxx Xxxx Xxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxx & Xxxx Xxxxxxx Xxxxx LLC
1900 Avenue of the Stars 000 Xxxxx Xxxxxx
Xxxxx 0000 00xx Xxxxx
Xxx Xxxxxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Additional notices are to be given as to each party, at such other
address as should be designated in writing complying as to delivery with the
terms of this Section 5.05. All such notices will be effective when received.
Section 5.06 Parties in Interest. This Agreement will inure to the
benefit of and be binding upon the parties hereto and the respective successors
and assigns. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
Section 5.07 Counterpart. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all together will
constitute one document. The delivery by facsimile of an executed counterpart of
this Agreement will be deemed to be an original and will have the full force and
effect of an original executed copy.
22
Section 5.08 Severability. The provisions of this Agreement will be
deemed severable and the invalidity or unenforceability of any provision hereof
will not affect the validity or enforceability of any of the other provisions
hereof. If any provisions of this Agreement, or the application thereof to any
person or any circumstance, is illegal, invalid or unenforceable, (a) a suitable
and equitable provision will be substituted therefor in order to carry out, so
far as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision, and (b) the remainder of this Agreement and the
application of such provision to other persons or circumstances will not be
affected by such invalidity or unenforceability, nor will such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
Section 5.09 Headings. The Article and Section headings are provided
herein for convenience of reference only and do not constitute a part of this
Agreement and will not be deemed to limit or otherwise affect any of the
provisions hereof.
Section 5.10 Governing Law. This Agreement will be deemed to be made in
and in all respects will be interpreted, construed and governed by and in
accordance with the law of the State of New York, without regard to the conflict
of law principles thereof.
Section 5.11 Survival of Representations and Warranties. All terms,
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, will
survive the Closing and the delivery of the shares of IAMK Common Stock to be
issued hereunder at the Closing for a period of two years after Closing,
regardless of any investigation made by or on behalf of any of the parties
hereto.
Section 5.12 Assignability. This Agreement will not be assignable by
operation of law or otherwise and any attempted assignment of this Agreement in
violation of this subsection will be void ab initio.
Section 5.13 Amendment. This Agreement may be amended with the approval
of the MPL Shareholder and the boards of directors of each of IAMK and MPL at
any time. This Agreement may not be amended except by an instrument, in writing,
signed on behalf of each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the date first above
written.
INTERACTIVE MARKETING
TECHNOLOGY, INC.
By_________________________
Name:
Title:
Attest:
------------------------------
Name:
Title:
METROLINK PACIFIC LIMITED
By_________________________
Name:
Title:
Attest:
------------------------------
Name:
Title:
MPL SHAREHOLDER:
By______________________________
Name:
Attest:
------------------------------
Name:
Title:
24
ORIENT FINANCIAL SERVICES LIMITED
By____________________________
Name:
Title:
Attest:
------------------------------
Name:
Title:
EMERGING GROWTH PARTNERS INC.
By____________________________
Name:
Title:
Attest:
------------------------------
Name:
Title:
