EXHIBIT B
AMENDED AND RESTATED SHARE ACQUISITION VOTING AND
DISPOSITION AGREEMENT executed as of April 29, 2003 (the
"Execution Date") and effective as of May 9, 2002 (the
"Effective Date") among ICT Technologies, Inc. (the
"Company"), Europhone USA, Inc. ("Europhone USA"),
Xxxxxxxx Xxxxxxxxxxx ("Koutsobinas") and Xxxxxx
Xxxxxxxxx ("Shainberg").
WHEREAS, the parties hereto, X.Xxxxx USA, Inc. ("X.Xxxxx") and Xxxx
Xxxxxxxxxxxx ("Kontonicolas") executed certain transactions during 2002
(collectively, the "Transaction") pursuant to which the businesses operations of
the Company, Europhone USA, Europhone Inc. ("Europhone"), Eurospeed, Inc.
("Eurospeed") and Eurokool, Inc. ("Eurokool") have been operated on a combined
basis;
WHEREAS, subsequent to the Effective Date, (i) the parties hereto, X.Xxxxx
and Kontonicolas have agreed that certain shares of common stock of the Company
issued to X.Xxxxx and held by Koutsobinas pending the performance of finder
services by Kontonicolas shall be cancelled and (ii) the parties hereto have
determined that the capital stock of 6 million shares shall be contributed to
the Company; and
WHEREAS, the parties wish to set forth fully herein the terms of the
Transaction, as amended hereby;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Issuance of Shares; Consideration. (a) On or about April 29,
2002, the Company issued (i) 68 million new shares of common stock to Xxxxxxxx
Xxxxxxxxxxx and (ii) 10 million new shares of common stock to Europhone USA,
which is wholly owned by Koutsobinas (the shares described in (i) and (ii) being
referred to collectively herein as the "Consideration Shares") in exchange for
the transfer to the Company of the following assets/agreements:
(i) a 100% ownership interest in Europhone, Inc. ("Europhone"); at
the Effective Date, Europhone was party to the following agreements:
(A) an agreement dated as of June 9, 2002 between Ningbo Bird
Corporation Ltd. and Europhone;
(B) an agreement dated December 29, 2001 between Guangdong
Chigo Air Conditioning Co., Ltd. and Europhone;
(C) an agreement dated July 7, 2002 between Guangdong Richvast
Group Company, Limited and Europhone;
(D) an agreement dated December 29, 2001 between Giantco,
Limited and Europhone; and
(E) an agreement dated October 17, 2001 between Canquest
Communications (Online) Inc, and Europhone;
(ii) 100% ownership interests in Eurokool and Eurospeed;
(iii) an agreement dated as of October 27, 2000 between Canquest
Communications (Canada) Inc. and Europhone USA;
(iv) an agreement dated November 20, 2001 between IGAEA, and
Europhone USA.
(b) The parties acknowledge that the agreements described in clauses
(iii) and (iv) of Section 1(a), as well as the following agreements entered into
by Europhone USA subsequent to the Effective Date, have been performed (to the
extent performed prior to the Execution Date) by Europhone USA as agent for the
Company:
(i) an agreement dated as of August 8, 2002 between 9278
Communication, Inc. and Europhone USA; and
(ii) an agreement dated August 20, 2002 between PNG
Telecommunications, Inc., and Europhone USA.
(c) In recognition of the fact that the businesses of the Company
and Europhone USA have been operated on a combined basis since the Effective
Date, the parties agree that Koutsobinas hereby contributes to the Company a
100% ownership interest in Europhone USA.
SECTION 2. Current Stock Ownership. Each of the parties hereto other than
the Company represents that it holds directly the number of shares of the
Company's common stock set forth on Schedule A hereto (such shares, together
with any other shares of capital stock of the Company acquired by any such party
after the Effective Date (including through the exercise of stock options,
warrants or similar rights or the conversion or exchange of securities), being
referred to herein as "Shares"). Each party further represents and warrants that
each transfer of Shares by him or it subsequent to the Effective Date has been
in compliance with the terms of this Agreement (including without limitation the
last sentence of Section 3).
SECTION 3. Limitations on Transfer and other Actions. During the period
(the "Restricted Period") beginning on the Effective Date and ending on June 30,
2007, each of Koutsobinas and Shainberg (each a "Stockholder" and collectively
the "Stockholders") hereby agrees that he will not, and will not enter into any
contract, option or other undertaking to, sell, transfer, assign or otherwise
dispose of more than two million Shares in any year or grant any right or proxy
to vote or grant consent in lieu of a vote with respect to any Shares, now owned
or hereafter acquired by such party. Notwithstanding the foregoing, Koutsobinas
and Shainberg may sell, transfer, assign or otherwise dispose
of any Shares to any person directly or indirectly controlling, or controlled by
such party ("Affiliate") or such party's parent, spouse, child, sibling or any
trust or other estate planning vehicle created for the primary benefit of such
parent, spouse, child or sibling (each a "Family Member"), provided that (i) in
the case of a transfer by Shainberg, Koutsobinas receives prior written notice
of such transfer and (ii) the Affiliate or Family Member to which such Shares,
or interest therein, is or may be sold, transferred, assigned, otherwise
disposed of, executes an agreement in form and substance that is reasonable
pursuant to which such Affiliate or Family Member agrees to be bound by the
terms and conditions of this Section 3 and Section 4.
SECTION 4. Agreement to Vote; Grant of Irrevocable Proxy; Appointment of
Proxy. During the Restricted Period, unless otherwise directed in writing by
Koutsobinas:
(a) Shainberg hereby agrees to vote or to give a written consent
with respect to, all Shares which he is entitled to vote, only as directed in
writing by Koutsobinas.
(b) Shainberg hereby irrevocably and severally grants to, and
appoints, Koutsobinas and any person designated by Koutsobinas to act in his
place, a proxy and attorney-in-fact (with full power of substitution and
resubstitution), for and in the name, place and stead of Shainberg, to vote his
Shares beneficially owned, or grant a consent or approval in respect of such
Shares beneficially owned. Shainberg agrees to execute such other instruments as
may reasonably be necessary or advisable to effect the intent of each proxy
granted hereby and not to give any subsequent proxies with respect to the Shares
beneficially owned (which, if given, shall be void ab initio and shall not be
effective).
(c) Shainberg represents and warrants that any proxies (other than
the proxies contained in Section 4(b) hereof) heretofore given in respect of his
Shares beneficially owned are hereby revoked and that any consent necessary for
such revocation has been previously obtained.
(d) Shainberg hereby affirms that his proxy granted in Section 4(b)
is coupled with an interest and may under no circumstances be revoked. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with
the applicable provisions of the Delaware General Corporation Law. Such
irrevocable proxy shall be valid until the expiration, or the termination in
accordance with Section 8, of the Restricted Period.
SECTION 5. Other Dealings. During the Restricted Period, each Stockholder
shall, and shall cause his or its Affiliates to, offer to the Company any and
all transactions, proposals, business plans, acquisitions, consultancies,
advisories or other corporate opportunities that become available to such
Stockholder and are within the scope of the business conducted by the Company at
the time the same becomes available to such Stockholder, and such Stockholder
may only pursue any such opportunity outside the Company with the prior written
approval of a majority of Board of Directors of the Company.
SECTION 6. Representations and Warranties of the Company. The Company
hereby represents and warrants to Koutsobinas and Europhone USA that the
Consideration Shares have been duly authorized, validly issued, are fully paid
and nonassessable and, upon issuance, were free and clear of all liens, claims
or encumbrances (collectively, "Liens") other than Liens created by or through
the recipients thereof. The issuance and delivery of such shares was not subject
to any preemptive right of shareholders of the Company that has not been waived
or to any right of first refusal or other right in favor of any person that has
not been waived.
SECTION 7. Other Representations and Warranties. Each party, severally and
not jointly, represents and warrants in respect of himself or itself that:
(a) Such party has the necessary power and authority to enter into
this Agreement and to perform his or its obligations under this Agreement. If
such party is not an individual, the execution and delivery of this Agreement by
it and the performance of its obligations under this Agreement have been duly
and validly authorized by all necessary action, and no other proceedings on the
part of any such party are necessary to authorize such execution, delivery or
performance.
(b) The execution and delivery of this Agreement by such party does
not, and the performance by such party of his or its obligations under this
Agreement will not, (i) conflict with or violate the certificate or articles of
incorporation, bylaws, partnership agreement, trust instrument or other
organizational document (if any) of any such person, (ii) conflict with or
violate any legal requirement applicable to any such person or by which any of
its properties or assets (including any Shares held by it) is bound or affected,
or (iii) result in any breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of any encumbrance on any Shares held by him or it pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the such person is
a party or by which such person or any of its properties or assets (including
any Shares held by him or it) is bound or affected.
(c) The execution and delivery of this Agreement by such party does
not, and the performance of this Agreement by such party will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental body, except for any filing which may be required by the
rules promulgated pursuant to the Securities Exchange Act of 1934, as amended.
SECTION 8. Termination. The provisions of Sections 3 through 5 shall
terminate upon the earliest to occur of:
(a) the written agreement of all of the Stockholders and the
Company;
(b) the acquisition of the Company by another entity by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation, but excluding (x) any merger
effected exclusively for the purpose of changing the domicile of the Company or
(y) any transaction or series of related transactions following which holders of
the Company's voting securities outstanding immediately prior to such
transaction or series of related transactions hold more than 50% of the voting
securities of the entity surviving such transaction or series of related
transactions or an entity controlling such surviving entity), or the sale or
transfer by the Company of all or substantially all of its assets otherwise than
to a wholly-owned affiliate of the Company or to an entity more than 50% of the
voting securities of which (or of the controlling entity of which) is held
following such sale or transfer by holders of the Company's voting securities
prior to such sale or transfer (any such event a "Change of Control"); and
(c) the complete liquidation, dissolution and winding up of the
Company.
SECTION 9. Further Assurances. Each party will, at the Company's expense,
from time to time, execute and deliver, or cause to be executed and delivered,
such additional or further consents, documents and other instruments as the
Company or any party may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
SECTION 10. Certain Events. Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to such person's Shares and shall be
binding upon any person to which legal or beneficial ownership of such person's
Shares shall pass, whether by operation of law or otherwise, including without
limitation, such person's heirs, guardians, administrators or successors. The
certificates evidencing the Shares shall have bear a legend to the foregoing
effect. In the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company or the
acquisition of additional Shares by any Stockholder the number of Shares listed
in Schedule A beside the name of such Stockholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
such additional Shares.
SECTION 11. Amendment. This Agreement may not be amended, supplemented,
modified or waived except by any instrument in writing signed by all of the
parties hereto.
SECTION 12. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and, except as
otherwise provided in this Agreement, shall be deemed to have been duly given if
so given) if delivered in person, or sent by overnight courier service or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties as follows:
If to the Company, to:
ICT Technologies, Inc.
00 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxxxxx
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
If to any Stockholder, at the address set forth in the Company's
records.
Any party may change its address for notices by notice to the other parties in
accordance with this Section.
SECTION 13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
SECTION 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to the principles of conflicts of laws thereof, except to the
extent that the laws of the State of Delaware are mandatorily applicable hereto.
SECTION 15. Consent to Jurisdiction; Consent to Service. THE PARTIES
HERETO HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE
OF THE FEDERAL AND STATE COURTS LOCATED IN WESTCHESTER
COUNTY, NEW YORK IN CONNECTION WITH ANY LITIGATION ARISING OUT
OF OR RELATING TO THIS AGREEMENT. THE PARTIES HERETO HEREBY
WAIVE PERSONAL SERVICE OF ANY PROCESS IN CONNECTION WITH ANY
SUCH LITIGATION AND AGREE THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL ADDRESSED TO OR BY PERSONAL
DELIVERY TO ANOTHER PARTY TO THIS AGREEMENT AT SUCH OTHER
PARTIES' ADDRESS SPECIFIED IN SECTION 12.
SECTION 16. Specific Performance. The parties hereto agree that if any of
the provisions of Sections 3 through 5 were not performed in accordance with
their specific terms or were otherwise breached, irreparable damage would occur,
no adequate remedy at law would exist and damages would be difficult to
determine, and that the parties shall (without the posting of bond or other
security), be entitled to obtain from any court of competent jurisdiction
specific performance of the terms hereof, in addition to any other remedy at law
or equity.
SECTION 17. Binding Effect. Without limitation of Section 20, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the successors and assigns of the parties hereto. In addition, for so long as
the Restricted Period has not expired or been terminated, Sections 3 through 5
shall be binding upon any Affiliates and Family Members of the parties hereto
(and the parties hereto shall cause their Affiliates and Family Members to
comply with the terms thereof) and the transferees of any Shares held by the
parties hereto (other than (i) transferees pursuant to a distribution of
securities registered under the Securities Act that is consented to by
Koutsobinas and (ii) transferees who are not Affiliates or Family Members of any
of the parties hereto and who receive their Shares in a transaction permitted by
Section 3). Notwithstanding the foregoing, nothing expressed or referred to in
this Agreement is intended or shall be construed to give any person other than
the parties to this Agreement, or their respective successors or assigns, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION 18. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings with respect to such
subject matter. Without limitation of the foregoing, this Agreement supersedes
(i) that certain letter of intent dated May 9, 2002 among X.Xxxxx, the Company,
Europhone USA, Europhone Inc., Eurokool USA Inc., Eurokool Inc., Eurospeed USA
Inc. and Eurospeed Inc., (ii) that certain Stockholder Agreement dated as of May
9, 2002 for the benefit of Koutsobinas, Kontonicolas and Shainberg, (iii) that
certain letter agreement dated May 9, 2002 among the Company, Shainberg,
Kontonicolas and X.Xxxxx and (iv) that certain Receipt dated December 17, 2002
between Koutsobinas and Kontonicolas.
SECTION 19. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this .Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
SECTION 20. Assignment. Neither this agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties; provided, however, that no such assignment shall
relieve any party hereto of its obligations hereunder if such transferee does
not perform such obligations.
SECTION 21. Miscellaneous. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections, subsections and
clauses referred to Sections, subsections and clauses of this Agreement unless
otherwise stated.
ICT TECHNOLOGIES, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: CEO and Chairman of the Board
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
EUROPHONE USA, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title:President
SCHEDULE A
Beneficial Ownership of Shares
Stockholder Shares Beneficia1y Owned
Europhone USA, Inc. 10,000,000
Xxxxxxxx Xxxxxxxxxxx 68,000,000
Xxxxxx Xxxxxxxxx 5,960,000
