I-LEVEL MEDIA GROUP INCORPORATED
902, B1, KangBao
Huayuan, #8 Gongran Tiyuchang Donglu,
Chaoyand District, Beijing, PRC, 100020
July 9, 2012 |
Private and Confidential |
To:
The Board of Directors of:
Telupay PLC
First Island House, Peter Street St. Helier
Jersey Channel Islands, JE4 8SG
Dear Sirs/Mesdames:
Re:
Offer to purchase all of the shares of Telupay
PLC (the “Company”) from each of the shareholders of the Company
(each a “Vendor”) by I-Level Media Group Incorporated (the “Purchaser”;
and the Company, the within Vendor and the Purchaser being, individually and/or
collectively, as the context so requires, a “Party” and the “Parties”
herein)
AGREEMENT IN PRINCIPLE
This letter will
confirm our recent discussions and the intention of each of the Parties to
enter into the basic terms of an agreement (herein the “Agreement”) for
the proposed acquisition by the above-referenced Purchaser from the
above-referenced Vendors of all of issued and outstanding shares (each a “Purchased
Share”) of the above-referenced Company.
We understand and confirm
that the Company is a limited liability company subsisting under and registered
pursuant to the laws of Jersey Channel Islands, that the Company is presently
engaged in the business of mobile banking and payment applications and systems
and all matters and businesses necessarily incidental thereto, and that the
Company now wish to raise additional external capital in order to fully develop
and realize the potential of its existing business (collectively, the “Company’s
Business”).
We also understand
and confirm that, by entering into this Agreement, the undersigned authorized
signatories for each of the Company and the within Vendor herein intend to move
forward toward entering into a more formal agreement or takeover bid (the “Formal
Agreement”) pursuant to which the Vendor, and all remaining Vendors of the
Company, will agree to sell and the Purchaser will agree to purchase all of the
Purchased Shares of the Company from the Vendors upon terms and conditions
similar to those as set forth hereinbelow. At all times the undersigned
hereto acknowledge and agree that the completion of any such Formal Agreement
is subject to the prior ratification and approval of the terms and conditions
of any such Formal Agreement by the Board of Directors and, if applicable,
shareholders of the Purchaser, the Company, the Vendors and such securities
regulatory authorities as may have jurisdiction over the Purchaser, the Company
and the Vendors (collectively, the “Regulatory Authorities”).
In connection with
the foregoing, therefore, the undersigned hereby acknowledge and agree that the
following will represent the basic terms of a Formal Agreement for the
acquisition by the Purchaser of all of the Purchased Shares from the Vendors.
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 2 -
Article 1
PURCHASE AND SALE ACQUISITION OF ALL OF THE
PURCHASED SHARES
1.1 Purchase and
sale Acquisition. Subject to the terms and conditions hereof and
based upon the representations and warranties contained in Articles “2” and “3”
hereinbelow, together with such other terms and conditions and representations
and warranties as are standard in similar share purchase transactions of this
type and as may be evidenced by the final form of Formal Agreement which
replaces this Agreement, and the prior satisfaction of the conditions precedent
which are set forth in Article “4” hereinbelow, the Vendor, and the remaining
Vendors by virtue of the Formal Agreement thereby, agree to assign, sell and
transfer at the closing date (the “Closing Date”) all of their
respective right, entitlement and interest in and to the Purchased Shares to
the Purchaser, and the Purchaser agrees to purchase all of the Purchased Shares
from the Vendors, on the terms and subject to the conditions contained in this
Agreement (collectively, the “Acquisition” herein).
1.2 Purchase Price
for the Vendors. The total purchase price (the “Purchase Price”)
for all of the Purchased Shares on Acquisition will be paid by the Purchaser’s
issuance and delivery to the Vendors, in the manner set forth hereinbelow, of
an aggregate of 48,839,301 restricted common shares in the capital of
the Purchaser (each an “Acquisition Share”); together with such
additional number of additional Acquisition Shares as will equate to an
equivalent number of shares of the Company issued for financing purposes and
for cash consideration to the Company after the acceptance date of this
Agreement by the Parties; at the closing (the “Closing”) on the Closing
Date subject to the terms and conditions of the Formal Agreement, at a deemed
issuance price of U.S. $0.001 per Acquisition Share of the Purchaser.
Unless otherwise
directed by the Vendors under the proposed Formal Agreement prior to Closing,
the Purchaser is expected to issue the Acquisition Shares to the Vendors pro
rata in accordance with the each Vendor’s respective Purchased Share
shareholding in and to the Company and outstanding as at the Closing Date; with
all fractions greater than or equal to one-half being rounded up and all
fractions less than one-half being rounded down.
1.3 Cancellation of
Founder’s Shares. In addition to the Purchase Price Shares to be
issued by the Purchaser to the Vendors at Closing and in the manner as set
forth in section “1.2” hereinabove, and subject to the remaining terms and
conditions hereof and based upon the representations and warranties contained
in Articles “2” and “3” hereinbelow, together with such other terms and
conditions and representations and warranties as are standard in similar share
purchase transactions of this type and as may be evidenced by the final form of
Formal Agreement which replaces this Agreement, at Closing a current
shareholder of the Purchaser, Francis Chiew (the “Founder”), the
Purchaser’s present Chief Executive Officer, will be required to tender back to
the treasury of the Company for cancellation (the “Cancellation”) an
aggregate of 45,000,000 restricted common shares of the Company from the
present holdings of the Founder (each a “Founder’s Share”); it being
acknowledged and agreed by the Parties and the Founder that the proposed
Cancellation of the Founder’s Shares is essential to the resulting
post-Acquisition capitalization and liquidity of the Company (collectively, the
“Cancellation of the Founder’s Shares” herein).
1.4 Resale
restrictions and legending of Acquisition Share certificates. The
Vendor, and the remaining Vendors by virtue of the Formal Agreement thereby,
hereby acknowledge and agree that the Purchaser makes no representations as to
any resale or other restriction affecting the Acquisition Shares and that it is
presently contemplated that the Acquisition Shares will be issued by the
Purchaser to the Vendors in reliance upon the exemptions contained in certain
sections of the United States Securities Act of 1933, as amended (the “Securities
Act”), or “Regulation S” promulgated under the Securities Act, which
will impose a trading restriction in the United States on the Acquisition
Shares for a period of at least
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 3 -
12 months from the Closing Date. In addition,
the Vendor, and the remaining Vendors by virtue of the Formal Agreement
thereby, hereby also acknowledge and agree that the within obligation of the
Purchaser to issue the Acquisition Shares pursuant to section “1.2” hereinabove
will be subject to the Purchaser being satisfied that an exemption from
applicable registration and prospectus requirements is available under the
Securities Act and all applicable securities laws in respect of each of the
Vendors, the Purchased Shares and the Acquisition Shares.
The Vendor, and the remaining Vendors by virtue
of the Formal Agreement thereby, hereby
also acknowledge and understand that neither the sale of the Acquisition Shares
which the Vendors are acquiring nor any of the Acquisition Shares themselves
have been registered under the Securities Act or any state securities laws,
and, furthermore, that the Acquisition Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available. The Vendor,
and the remaining Vendors by virtue of the Formal Agreement thereby, also acknowledge and understand that the
certificates representing the Acquisition Shares will be stamped with the
following legend (or substantially equivalent language) restricting transfer in
the following manner if such restriction is required by the Regulatory
Authorities:
|
“The securities represented hereby have
not been registered under the United States Securities Act of 1933, as amended
(the “1933 Act”) or applicable state securities laws. These securities may not
be offered, sold, pledged or otherwise transferred except (a) pursuant to an
effective registration statement under the 1933 Act, (b) to the corporation,
(c) in accordance with Rule 144 under the 1933 Act, if available, and in
compliance with applicable state securities laws, (d) in accordance with the
provisions of Regulation S, if available, or (e) in a transaction that does not
otherwise require registration under the 1933 Act or any applicable state
securities laws if an opinion of counsel, of recognized standing reasonably
satisfactory to the corporation, has been provided to the corporation to that
effect. The securities represented by the certificate cannot be the subject of
hedging transactions unless such transactions are conducted in compliance with
the 1933 Act and other applicable securities laws.”; |
and the Vendor, and the remaining Vendors
by virtue of the Formal Agreement thereby, hereby consent to the Purchaser
making a notation on its records or giving instructions to any transfer agent
of the Purchaser (the “Transfer Agent”) in order to implement the
restrictions on transfer set forth and described hereinabove.
The Vendor hereby, and the remaining Vendors by
virtue of the Formal Agreement thereby, also
acknowledge and understand that:
|
(a) |
the Acquisition Shares are restricted
securities within the meaning of “Rule 144” promulgated under the
Securities Act; |
|
(b) |
the exemption from registration under Rule
144 will not be available in any event for at least one year from the date of
issuance and transfer of the Acquisition Shares to the Vendors, and even then
will not be available unless (i) a public trading market then exists for the
common stock of the Purchaser, (ii) adequate information concerning the Purchaser
is then available to the public; (iii) all
periodic reports required to be filed by the Purchaser have been filed; and (iv)
other terms and conditions of Rule 144 are complied with; and |
|
(c) |
any sale of the Acquisition Shares may be
made by the Vendors only in limited amounts in accordance with such terms and
conditions. |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 4 -
1.5 Standstill
provisions. In consideration of the Parties’ within agreement to
purchase and sell the Purchased Shares and to enter into the terms and
conditions of this Agreement, each of the Parties hereby undertake for
themselves, and for each of their respective agents and advisors, that they
will not until the earlier of the Closing Date or the termination of this
Agreement approach or consider any other potential Purchasers, or make, invite,
entertain or accept any offer or proposal for the proposed sale of any interest
in and to any of the Purchased Shares or the assets or the respective business
interests of the Company or the Purchaser, as the case may be, or, for that matter,
disclose any of the terms of this Agreement, without the Parties’ prior written
consent. In this regard each of the Parties hereby acknowledges that the
foregoing restrictions are important to the respective businesses of the
Parties and that a breach by any of the Parties of any of the covenants herein
contained would result in irreparable harm and significant damage to each
affected Party that would not be adequately compensated for by monetary award.
Accordingly, the Parties hereby agree that, in the event of any such breach, in
addition to being entitled as a matter of right to apply to a Court of
competent equitable jurisdiction for relief by way of restraining order,
injunction, decree or otherwise as may be appropriate to ensure compliance with
the provisions hereof, any such Party will also be liable to the other Parties,
as liquidated damages, for an amount equal to the amount received and earned by
such Party as a result of and with respect to any such breach. The Parties
hereby also acknowledge and agree that if any of the aforesaid restrictions,
activities, obligations or periods are considered by a Court of competent
jurisdiction as being unreasonable, they agree that said Court shall have
authority to limit such restrictions, activities or periods as the Court deems
proper in the circumstances.
Article 2
WARRANTIES,
REPRESENTATIONS AND COVENANTS
BY THE
COMPANY AND BY THE VENDORS
2.1 Warranties,
representations and covenants by the Company and by the Vendors. In
order to induce the Purchaser to enter into this Agreement and to enter into
and consummate any Formal Agreement, each of the Company and the Vendor hereby,
and each of the Company and the Vendors by virtue of any Formal Agreement will,
respectively, thereby, warrant to, represent to and covenant with the Purchaser
in this Agreement, and in any Formal Agreement as at the Closing Date, that, to
the best of the knowledge, information and belief of each of the Company and
the Vendor herein, and to the best of the knowledge, information and belief of
each of the Company and the Vendors, respectively, in any Formal Agreement,
after making due inquiry and where appropriate and applicable (and for the
purposes of the following warranties, representations and covenants “Company”
shall mean the Company and any and all subsidiaries of the Company, if any, as
the context so requires):
|
(a) |
each
of the Company and, where applicable, the Vendors, are duly incorporated under
the laws of their respective jurisdictions of incorporation, are validly
existing and are in good standing with respect to all statutory filings
required by the applicable corporate laws, and each of the Company and, where
applicable, the Vendors, has the requisite power, authority and capacity to own
and use all of its respective business assets and to carry on the Company’s
Business as presently conducted by them; |
|
(b) |
save
and except as set forth in the “Company’s Disclosure Schedule”; a copy of such
Company’s Disclosure Schedule accompanying the Company’s delivery of this
Agreement; and as will be set
forth in any Formal Agreement as contemplated herein, the Company owns and possesses and has good and
marketable title to and possession of all of its business assets free and clear
of all actual or threatened liens, charges, options, encumbrances, voting
agreements, voting trusts, demands, limitations and restrictions of any nature
whatsoever; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 5 -
|
(c) |
save
and except as set forth in the Company’s Disclosure Schedule and as will be set
forth in any Formal Agreement as contemplated herein, the Company holds all
licenses and permits required for the conduct in the ordinary course of its
operations of the Company’s Business and for the uses to which its business
assets have been put and are in good standing, and such conduct and uses are in
compliance with all laws, zoning and other by-laws, building and other
restrictions, rules, regulations and ordinances applicable to the Company and
its business assets, and neither the execution and delivery of this Agreement
nor the completion of the transactions contemplated hereby will give any person
the right to terminate or cancel any said license or permit or affect such
compliance; |
|
(d) |
as
set forth in the Company’s Disclosure Schedule, the issued and authorized
capital of the Company is accurately disclosed therein of which, according to
the records of the Company, and as at the Closing Date, all of the Purchased
Shares will be issued and outstanding as fully paid and non-assessable as at
Closing; |
|
(e) |
subject
to the prior completion of the Cancellation of the Founder’ Shares, there will
be no shares in the capital of the Company issued or allotted or agreed to be
issued or allotted to any persons or entities other than the Vendors herein; |
|
(f) |
the
Vendors have good and marketable title to and are the legal, registered and beneficial
owners of all of the Purchased Shares; |
|
(g) |
the
Purchased Shares are validly issued and outstanding and fully paid and
non-assessable in the capital of the Company and are free and clear of all
actual or threatened liens, charges, options, encumbrances, voting agreements,
voting trusts, demands, limitations and restrictions of any nature whatsoever; |
|
(h) |
there
are no claims of any nature whatsoever affecting the rights of the Vendors to
transfer the Purchased Shares to the Purchaser and, without limiting the
generality of the foregoing, there are no claims or potential claims under any
relevant family relations legislation or other equivalent legislation affecting
the Purchased Shares; |
|
(i) |
the
Vendors have the power and capacity to own and dispose of the Purchased Shares; |
|
(j) |
this
Agreement and any Formal Agreement as contemplated herein will constitute a
legal, valid and binding obligation of the Company and the Vendors, enforceable
against the Company and the Vendors in accordance with its respective terms,
except as enforcement may be limited by laws of general application affecting
the rights of creditors; |
|
(k) |
subject
to the prior completion of the Cancellation of the Founder’ Shares, as at the
execution date of any Formal Agreement as contemplated herein the Company will
not have committed itself to provide any person, firm or corporation with any
agreement, option or right, consensual or arising by law, present or future,
contingent or absolute, or capable of becoming an agreement, option or right: |
|
(i) |
to
require it to issue any further or other shares in its share capital, or any
other security convertible or exchangeable into shares in its share capital, or
to convert or exchange any securities into or for shares in its share capital; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 6 -
|
(ii) |
for
the issue and allotment of any of the authorized but unissued shares in its
share capital; |
|
(iii) |
to
require it to purchase, redeem or otherwise acquire any of the issued and
outstanding shares in its share capital; or |
|
(iv) |
to
purchase or otherwise acquire any shares in its share capital; |
|
(l) |
no
other person, firm or corporation has any agreement, option or right capable of
becoming an agreement for the purchase of any of the Purchased Shares; |
|
(m) |
save
and except as set forth in the Company’s Disclosure Schedule, and save and
except as will be provided for in the Company’s consolidated and comparative
audited financial statements for its most recently completed financial period
to be provided prior to Closing (presently expected as at March 31, 2012; and,
collectively, the “Company’s Financial Statements”) and as will be set
forth in any Formal Agreement as contemplated herein, there are no material
liabilities, contingent or otherwise, existing on the date hereof in respect of
which the Company may be liable on or after the completion of the transactions
contemplated by this Agreement other than: |
|
(i) |
liabilities
disclosed or referred to in this Agreement; and |
|
(ii) |
liabilities
incurred in the ordinary course of the Company’s Business, none of which are
materially adverse to the business, operations, affairs or financial conditions
of the Company; |
|
(n) |
no
dividend or other distribution by the Company will be declared, paid or
authorized up to and including the Closing Date, and the Company has not and
has not committed itself to confer upon, or pay to or to the benefit of, any
entity, any benefit having monetary value, any bonus or any salary increases
except in the normal course of its business; |
|
(o) |
save
and except as set forth in the Company’s Disclosure Schedule and as will be set
forth in any Formal Agreement as contemplated herein, there is no basis for and
there are no actions, suits, judgments, investigations or proceedings
outstanding or pending or, to the best of the knowledge, information and belief
of the Company and the Vendors, after making due inquiry, threatened against or
affecting the Company at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board, bureau or
agency; |
|
(p) |
save
and except as set forth in the Company’s Disclosure Schedule and as will be set
forth in any Formal Agreement as contemplated herein, the Company is not in
breach of any laws, ordinances, statutes, regulations, by-laws, orders or
decrees to which it is subject or which apply to it; |
|
(q) |
save
and except as set forth in the Company’s Disclosure Schedule and as will be set
forth in any Formal Agreement as contemplated herein, the Company has not
experienced, nor are the Company and the Vendors aware of, any occurrence or
event which has had, or might reasonably be expected to have, a materially
adverse affect on the Company’s Business or on the results of its operations; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 7 -
|
(r) |
save
and except as set forth in the Company’s Disclosure Schedule and as will be set
forth in any Formal Agreement as contemplated herein, the Company is not, nor
until or at the Closing Date will it be, in breach of any provision or
condition of, nor has it done or omitted anything that, with or without the
giving of notice or lapse or both, would constitute a breach of any provision
or condition of, or give rise to any right to terminate or cancel or accelerate
the maturity of any payment under, any deed of trust, contract, certificate,
consent, permit, license or other instrument to which it is a party, by which
it is bound or from which it derives benefit, any judgment, decree, order, rule
or regulation of any Court or governmental authority to which it is subject, or
any statute or regulation applicable to it, to an extent that, in the
aggregate, has a material adverse affect on it; |
|
(s) |
the
Company has not committed to making and until the Closing Date will not make or
commit itself to: |
|
(i) |
guarantee,
or agree to guarantee, any indebtedness or other obligation of any person or
corporation; or |
|
(ii) |
waive
or surrender any right of material value; |
|
(t) |
until
the Closing Date the Company will: |
|
(i) |
maintain
its assets in a manner consistent with and in compliance with applicable law;
and |
|
(ii) |
not
enter into any material transaction or assume or incur any material liability
outside the normal course of its business without the prior written consent of
the Purchaser; |
|
(u) |
the
Company and the Vendors acknowledges that the Acquisition Shares will be issued
under certain exemptions from the registration and prospectus filing
requirements otherwise applicable under the Securities Act and that, as a
result, the Vendors may be restricted from using most of the remedies that
would otherwise be available to them and will not receive information that
would otherwise be required to be provided to them, and the Purchaser is
relieved from certain obligations that would otherwise apply to it, in either
case, under applicable securities legislation; |
|
(v) |
the
Company and the Vendors acknowledge and agree that the Acquisition Shares have
not been and will not be qualified or registered under the any federal or state
securities laws of the United States and, as such, the Vendors may be
restricted from selling or transferring such Acquisition Shares under
applicable law; |
|
(w) |
the Vendors
realize that the sale of the Purchased Shares in exchange for the Acquisition
Shares will be a highly speculative investment and that the Vendors are able,
without impairing that Vendors’ financial condition, to hold the Acquisition
Shares for an indefinite period of time and to suffer a complete loss on the
Vendors’ investment. In addition, the Vendors have such knowledge and
experience in financial and business matters that the Vendors are capable of
evaluating the merits and risks of the prospective investment, and the Vendors
have not received, nor have the Vendors requested or do the Vendors require to
receive, any offering memorandum or a similar document describing the business
and affairs of the Purchaser in order to assist the Vendors in entering into
this Agreement and any Formal Agreement and in consummating the transactions
contemplated herein; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 8 -
|
(x) |
at
Closing each of the Company and the Vendors will have executed and provided
each other with an acceptable form of final release and indemnification
respecting any and all claims which either of such Parties had, or may have
had, against any such other Party prior to Closing (the “Release”); |
|
(y) |
to
the actual knowledge, information and belief of each of the Company and the
Vendors only in each of the following instances, the making of this Agreement,
the completion of the transactions contemplated hereby pursuant to any Formal
Agreement and the performance of and compliance with the terms hereof does not
and will not: |
|
(i) |
conflict
with or result in a breach of or violate any of the terms, conditions or
provisions of the constating documents of either of the Company or the Vendors; |
|
(ii) |
conflict
with or result in a breach of or violate any of the terms, conditions or
provisions of any law, judgment, order, injunction, decree, regulation or
ruling of any court or governmental authority, domestic or foreign, to which
either of the Company or any of the Vendors is subject, or constitute or result
in a default under any agreement, contract or commitment to which either of the
Company or any of the Vendors is a party; |
|
(iii) |
give
to any party the right of termination, cancellation or acceleration in or with
respect to any agreement, contract or commitment to which either of the Company
or any of the Vendors is a party; |
|
(iv) |
give
to any government or governmental authority, or any municipality or any
subdivision thereof, including any governmental department, commission, bureau,
board or administration agency, any right of termination, cancellation or
suspension of, or constitute a breach of or result in a default under, any
permit, license, control or authority issued to either of the Company or to any
of the Vendors which is necessary or desirable in connection with the conduct
and operations of the Company’s Business and the ownership or leasing of its
business assets; or |
|
(v) |
constitute
a default by either of the Company or any of the Vendors, or any event which,
with the giving of notice or lapse of time or both, might constitute an event
of default, under any agreement, contract, indenture or other instrument
relating to any indebtedness of the Company or any of the Vendors which would
give any party to that agreement, contract, indenture or other instrument the
right to accelerate the maturity for the payment of any amount payable under
that agreement, contract, indenture or other instrument; and |
|
(z) |
it
is not aware of any fact or circumstance which has not been disclosed to the Purchaser
which should be disclosed in order to prevent the representations, warranties
and covenants contained in this section from being misleading or which would
likely affect the decision of the Purchaser to enter into this Agreement or any
Formal Agreement. |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 9 -
Article 3
WARRANTIES,
REPRESENTATIONS AND COVENANTS BY THE PURCHASER
3.1 Warranties,
representations and covenants by the Purchaser. In order to induce
each of the Company and the Vendor to enter into this Agreement and to enter
into and consummate any Formal Agreement, the Purchaser hereby, and by virtue
of any Formal Agreement will thereby, warrant to, represent to and covenant
with each of the Company and the Vendors that, to the best of the knowledge,
information and belief of the Purchaser herein, and to the best of the
knowledge, information and belief of the Purchaser in any Formal Agreement as
at the Closing Date, after making due inquiry and where appropriate and
applicable (and for the purposes of the following warranties, representations
and covenants “Purchaser” shall mean the Purchaser and any subsidiary of the
Purchaser, if any, as the context so requires):
|
(a) |
the
Purchaser is duly incorporated under the laws of its jurisdiction of
incorporation, is validly existing and is in good standing with respect to all
statutory filings required by the applicable corporate laws; |
|
(b) |
the
Purchaser has the requisite power, authority and capacity to own and use all of
its business assets and to carry on its business as presently conducted by it; |
|
(c) |
save
and except as will be set forth in the “Purchaser’s Disclosure Schedule”; a copy of such Purchaser’s Disclosure Schedule
to accompany the Purchaser’s delivery of this Agreement; and as will be
set forth in any Formal Agreement as contemplated herein, the Purchaser owns and possesses and has good and
marketable title to and possession of all of its business assets free and clear
of all actual or threatened liens, charges, options, encumbrances, voting
agreements, voting trusts, demands, limitations, contingent liabilities and
restrictions of any nature whatsoever; |
|
(d) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal
Agreement as contemplated herein, the Purchaser holds all licenses and permits required for the conduct
in the ordinary course of the operations of its business and for the uses to
which its business assets have been put and are in good standing, and such
conduct and uses are in compliance with all laws, zoning and other by-laws,
building and other restrictions, rules, regulations and ordinances applicable
to the Purchaser, and neither the execution and delivery of this Agreement nor
the completion of the transactions contemplated hereby will give any person the
right to terminate or cancel any said license or permit or affect such
compliance; |
|
(e) |
this
Agreement and any Formal Agreement as contemplated herein will constitute a
legal, valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its respective terms, except as enforcement may be
limited by laws of general application affecting the rights of creditors; |
|
(f) |
the
authorized capital of the Purchaser consists of 1,000,000,000 common shares,
with a par value of U.S. $0.001 per common share, of which, according to the
records of the Purchaser, an aggregate of approximately 75,918,825 common
shares of the Purchaser are issued and outstanding as fully paid and
non-assessable in the share capital of the Purchaser as at the date of this
Agreement; |
|
(g) |
all
of the issued and outstanding shares of the Purchaser will be listed and posted
for trading on the NASD Over-the-Counter Bulletin Board (the “OTCBB”),
and the Purchaser will not in material default of any of its listing requirements
of the OTCBB or any rules or policies of the United States Securities and
Exchange Commission (the “Commission”); |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 10 -
|
(h) |
all
registration statements, reports and proxy statements filed by the Purchaser
with the Commission, and all registration statements, reports and proxy
statements required to be filed by the Purchaser with the Commission, will have
been filed by the Purchaser under the United StatesSecurities Act of 1934,
as amended (the “Exchange Act”), will have been filed in all material
respects in accordance with the requirements of the Exchange Act and the rules
and regulations thereunder and no such registration statements, reports or
proxy statements will have contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; |
|
(i) |
the
Purchaser will allot and issue the Acquisition Shares on the Closing Date in
accordance with section “1.2” hereinabove as fully paid and non-assessable in
the capital of the Purchaser free and clear of all actual or threatened liens,
charges, options, encumbrances, voting agreements, voting trusts, demands,
limitations and restrictions of any nature whatsoever, other than hold periods
or other restrictions imposed under applicable securities legislation and will
issue, on the Closing Date, to holders of any and all share purchase options
(each a “Company Option”) and warrants (each a “Company Warrant”)
in and to the Company outstanding immediately prior to Closing, a share
purchase option (each a “Purchaser Option”) or share purchase warrant
(each a “Purchaser Warrant”), as the case may be, on substantially the
same terms and conditions as were applicable under the particular Company
Option or Company Warrant; |
|
(j) |
subject
to the prior completion of the Cancellation of the Founder’ Shares, up to and
including the Closing Date the Purchaser will not commit itself to: |
|
(i) |
redeem
or acquire any shares in its share capital; |
|
(ii) |
declare
or pay any dividend; |
|
(iii) |
make
any reduction in or otherwise make any payment on account of its paid-up
capital; or |
|
(iv) |
effect
any subdivision, consolidation (except as required by the terms of this Agreement)
or reclassification of any of its share capital; |
|
(k) |
up
to and including the Closing Date the Purchaser will not commit itself to: |
|
(i) |
acquire
or have the use of any property from a person, corporation or entity with whom
it was not dealing with at arm’s length; or |
|
(ii) |
dispose
of anything to a person, corporation or entity with whom it was not dealing
with at arm’s length for proceeds less than the fair market value thereof; |
|
(l) |
save
and except for the proposed payment and/or issuance of common shares of the
Purchaser as a finder’s fee in conjunction with the successful completion of
any Formal Agreement as
contemplated herein, and save and except for any finder’s fees or commissions
which may be payable or issuable by the Purchaser in conjunction with the
completion of its proposed Private Placement (as hereinafter defined) as set
forth hereinbelow, the
Purchaser has not retained, employed or introduced any other broker, finder or
other person who would be entitled to a brokerage commission or finder’s fee
arising out of the transactions contemplated hereby; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 11 -
|
(m) |
save
and except as will be set forth in any Formal Agreement as contemplated herein, up to and including the Closing Date the Purchaser
will not commit itself to provide any person, firm or corporation with any
agreement, option or right, consensual or arising by law, present or future,
contingent or absolute, or capable of becoming an agreement, option or right: |
|
(i) |
to
require it to issue any further or other shares in its share capital, or any
other security convertible or exchangeable into shares in its share capital, or
to convert or exchange any securities into or for shares in its share capital; |
|
(ii) |
for
the issue and allotment of any of the authorized but unissued shares in its
share capital; |
|
(iii) |
to
require it to purchase, redeem or otherwise acquire any of the issued and
outstanding shares in its share capital; or |
|
(iv) |
to
purchase or otherwise acquire any shares in its share capital; |
|
(n) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal
Agreement as contemplated herein, there will be no material liabilities, contingent or otherwise,
existing on the Closing Date in respect of which the Purchaser may be liable on
or after the completion of the transactions contemplated by the Formal
Agreement other than: |
|
(i) |
liabilities
disclosed or referred to in the Formal Agreement; and |
|
(ii) |
liabilities
incurred in the ordinary course of business, none of which are materially adverse
to the business, operations, affairs or financial conditions of the Purchaser; |
|
(o) |
no
dividend or other distribution by the Purchaser will have been made, declared
or authorized since its incorporation, nor will any be declared, paid or
authorized up to and including the Closing Date, and the Purchaser will not
commit itself to confer upon, or pay to or to the benefit of, any entity, any
benefit having monetary value, any bonus or any salary increases except in the
normal course of its business; |
|
(p) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal
Agreement as contemplated herein, there will be no basis for and there will be no actions, suits,
judgments, investigations or proceedings outstanding or pending or, to the best
of the knowledge, information and belief of the Purchaser under the Formal
Agreement, after making due inquiry, threatened against or affecting the
Purchaser at law or in equity or before or by any federal, state, municipal or
other governmental department, commission, board, bureau or agency; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 12 -
|
(q) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal
Agreement as contemplated herein, the Purchaser will not be in breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which it is subject or which apply
to it; |
|
(r) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal Agreement
as contemplated herein, the
Purchaser will have not experienced, nor will the Purchaser be aware of, any
occurrence or event which has had, or might reasonably be expected to have, a
materially adverse affect on the Purchaser’s business or on the results of its
operations; |
|
(s) |
up
to and including the Closing Date there has been and will be prepared and filed
on a timely basis all federal and provincial income tax returns, elections and
designations, and all other governmental returns, notices and reports of which
the Purchaser had or ought reasonably to have had knowledge, required to be or
reasonably capable of being filed up to the Closing Date, with respect to the
operations of the Purchaser, and no such returns, elections, designations,
notices or reports contain any material misstatement or omit any material
statement that should have been included, and each such return, election,
designation, notice or report, including accompanying schedules and statements,
is true, correct and complete in all material respects; |
|
(t) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal
Agreement as contemplated herein, the Purchaser is not, nor until or at the Closing Date will it be, in
breach of any provision or condition of, nor has it done or omitted anything
that, with or without the giving of notice or lapse or both, would constitute a
breach of any provision or condition of, or give rise to any right to terminate
or cancel or accelerate the maturity of any payment under, any deed of trust,
contract, certificate, consent, permit, license or other instrument to which it
is a party, by which it is bound or from which it derives benefit, any
judgment, decree, order, rule or regulation of any court or governmental
authority to which it is subject, or any statute or regulation applicable to
it, to an extent that, in the aggregate, has a material adverse affect on it; |
|
(u) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal
Agreement as contemplated herein, no payments of any kind will have been made or authorized by or on
behalf of the Purchaser to or on behalf of directors, officers, shareholders or
employees of the Purchaser or under any management agreements with the
Purchaser; |
|
(v) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal
Agreement as contemplated herein, the Purchaser will not have any contracts, agreements, undertakings or
arrangements, whether oral, written or implied, with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors, directors,
officers, lawyers or others which cannot be terminated, without penalty, on no
more than three month’s notice; |
|
(w) |
save and except as will be set forth in the
Purchaser’s Disclosure Schedule and as will be set forth in any Formal
Agreement as contemplated herein, none of directors, officers or employees of the Purchaser prior to
Closing will be indebted or under obligation to the Purchaser on any account
whatsoever; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 13 -
|
(x) |
the
Purchaser will not have committed to making and until the Closing Date will not
make or commit itself to: |
|
(i) |
guarantee,
or agree to guarantee, any indebtedness or other obligation of any person or
corporation; or |
|
(ii) |
waive
or surrender any right of material value; |
|
(y) |
until
the Closing Date the Purchaser will: |
|
(i) |
maintain
its assets in a manner consistent with and in compliance with applicable law;
and |
|
(ii) |
not
enter into any material transaction or assume or incur any material liability
outside the normal course of its business (except as required by the terms of
the Formal Agreement); |
|
(z) |
the
shares in the capital of the Purchaser will not be subject to or affected by any
actual or, to the best of the knowledge, information and belief of the
Purchaser, after making due inquiry, pending or threatened cease trade,
compliance or denial of use of exemptions orders of, or action, investigation
or proceeding by or before, any securities regulatory authority, court,
administrative agency or other tribunal; |
|
(aa) |
the
making of the Formal Agreement, the completion of the transactions contemplated
thereby and the performance of and compliance with the terms thereof will not: |
|
(i) |
conflict
with or result in a breach of or violate any of the terms, conditions or
provisions of the constating documents of the Purchaser; |
|
(ii) |
conflict
with or result in a breach of or violate any of the terms, conditions or
provisions of any law, judgment, order, injunction, decree, regulation or
ruling of any court or governmental authority, domestic or foreign, to which
the Purchaser is subject, or constitute or result in a default under any
agreement, contract or commitment to which the Purchaser is a party; |
|
(iii) |
give
to any party the right of termination, cancellation or acceleration in or with
respect to any agreement, contract or commitment to which the Purchaser is a
party; |
|
(iv) |
give
to any government or governmental authority, or any municipality or any
subdivision thereof, including any governmental department, commission, bureau,
board or administration agency, any right of termination, cancellation or
suspension of, or constitute a breach of or result in a default under, any
permit, license, control or authority issued to the Purchaser which is
necessary or desirable in connection with the conduct and operations of its
business and the ownership or leasing of its business assets; or |
|
(v) |
constitute
a default by the Purchaser or any event which, with the giving of notice or
lapse of time or both, might constitute an event of default, under any
agreement, contract, indenture or other instrument relating to any indebtedness
of the Purchaser which would give any party to that agreement, contract,
indenture or other instrument the right to accelerate the maturity for the
payment of any amount payable under that agreement, contract, indenture or
other instrument; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 14 -
|
(ab) |
at
or subsequent to Closing the following changes will be effected to the Board of
Directors and officers of the resulting Purchaser company (collectively, the “Change
in Board and officers”): |
|
(i) |
at
Closing the sole director and officers of the Purchaser will resign and the
previous Board of Directors of the Purchaser will appoint an aggregate of up to
five directors to be comprised of nominees to be put forward by the Vendors;
and |
|
(ii) |
at
Closing the resulting Board of Directors of the Purchaser will appoint such
executive officers of the resulting Purchaser as may be determined by the
Vendors prior to Closing; |
|
(ac) |
the
Company and/or the Purchaser will use its best efforts to raise prior to and/or
commensurate with Closing a common share private placement funding for the
Company and/or the Purchaser, under “Rule 506” or Regulation S under the
Securities Act, of approximately U.S. $1,000,000, and at an expected
subscription price of not less than U.S. $0.35 per restricted common share
(collectively, the “Private Placement”); |
|
(ad) |
commensurate
with or as soon as reasonably practicable subsequent to Closing the resulting
Purchaser company will seek the approval of its shareholders, if required, to
change the name of the resulting Purchaser company to such name as the
Purchaser’s resulting Board of Directors may determine at Closing (the “Change
in Name”); and subsequent to Closing the resulting Purchaser company shall
be in the process of preparing or filing the necessary documentation with all
Regulatory Authorities to effect the Change in Name and which shall include,
without limitation, obtaining a new trading symbol and CUSIP number for the
resulting Purchaser company; and |
|
(ae) |
it
is not aware of any fact or circumstance which has not been disclosed to the
Company and the Vendors which should be disclosed in order to prevent the
representations, warranties and covenants contained in this section from being
misleading or which would likely affect the decision of the Company and the
Vendors to enter into this Agreement or any Formal Agreement. |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 15 -
Article 4
CONDITIONS PRECEDENT TO CLOSING
4.1 Purchaser’s
conditions precedent. All of the obligations of the Purchaser under
this Agreement are, and under any Formal Agreement will be, further subject to
at least the following conditions for the exclusive benefit of the Purchaser fulfilled
in all material aspects in the reasonable opinion of the Purchaser or to be
waived by the Purchaser as soon as possible but, unless specifically indicated
as otherwise, not later than five calendar days prior to the Closing Date:
|
(a) |
each
of the Company and the Vendors shall have complied with all warranties,
representations, covenants and agreements herein and under any Formal Agreement
agreed to be performed or caused to be performed by each of the Company and the
Vendors on or before the Closing Date; |
|
(b) |
each
of the Company and the Vendors shall have obtained all authorizations,
approvals and other actions by, and have made all filings with, any securities
regulatory authority from whom any such authorization, approval or other action
is required to be obtained or to be made in connection with the transactions
contemplated herein, and all such authorizations, approvals and other actions
are in full force and effect and all such filings have been accepted and each
of the Company and the Vendors are in compliance with, and have not committed
any breach of, any securities laws, regulations or policies of any securities
regulatory authority to which either of the Company or the Vendors may be
subject; |
|
(c) |
all
matters which, in the opinion of counsel for the Purchaser, are material in
connection with the transactions contemplated by this Agreement and by any
Formal Agreement shall be subject to the favourable opinion of such counsel,
and all relevant records and information shall be supplied to such counsel for
that purpose; |
|
(d) |
no
material loss or destruction of or damage to either of the Company, any of its
assets, any of the Company’s Business or the Purchased Shares shall have
occurred; |
|
(e) |
no
action or proceeding at law or in equity shall be pending or threatened by any
person, company, firm, governmental authority, regulatory body or agency to
enjoin or prohibit: |
|
(i) |
the
purchase or transfer of any of the Purchased Shares contemplated by this
Agreement and by any Formal Agreement or the right of any of the Company or the
Vendors to dispose of any of the Purchased Shares; or |
|
(ii) |
the
right of the Company to conduct its operations and carry on, in the normal
course, its Company’s Business and operations as it has carried on in the past; |
|
(f) |
the
delivery to the Purchaser by the Company and the Vendors, on a confidential
basis, of all remaining material documentation and information and including,
without limitation, an updated Company’s Disclosure Schedule and: |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 16 -
|
(i) |
a
copy of all material contracts, agreements, reports and information of any
nature respecting the Company, its assets and the Company’s Business; and |
|
(i) |
details
of any lawsuits, claims or potential claims relating to either of the Company,
its assets, the Company’s Business or the Purchased Shares of which either of
the Company or the Vendors is aware and the Purchaser is unaware; |
|
(g) |
the
delivery to the Purchaser by the Company and the Vendors of an acceptable form
of final Release respecting any and all claims which either of such Parties
had, or may have had, against any such other Party prior to Closing; |
|
(h) |
the
Company and the Vendors will cause the Company, for a period of at least five
calendar days prior to the Closing Date, during normal business hours, to: |
|
(i) |
make
available for inspection by the counsel, auditors and representatives of the
Purchaser, at such location as is appropriate, the Company’s books, records,
contracts, documents, correspondence and other written materials, and afford
such persons every reasonable opportunity to make copies thereof and take
extracts therefrom at the sole cost of the Purchaser, provided such persons do
not unduly interfere in the operations of the Company; |
|
(ii) |
authorize
and permit such persons at the risk and the sole cost of the Purchaser, and
only if such persons do not unduly interfere in the operations of the Company,
to attend at all of its places of business and operations to observe the
conduct of the Company’s Business and operations, inspect its assets and, if
applicable, make physical counts of its inventories, shipments and deliveries;
and |
|
(iii) |
require
each of the Company’s management personnel to respond to all reasonable
inquiries concerning the Company’s Business, its assets or the conduct of its
business relating to its liabilities and obligations; |
|
(i) |
the
delivery to the Purchaser by the Company and the Vendors of an opinion of the
counsel for the Company, in a form satisfactory to the Purchaser’s counsel,
dated as at the date of delivery, to the effect that: |
|
(i) |
the
Company is a corporation duly incorporated under the laws of its jurisdiction
of incorporation, is validly existing and is in good standing with respect to
all statutory filings required by the applicable corporate laws; |
|
(ii) |
the
Company has the power, authority and capacity to own and use all of its assets
and to carry on its Company’s Business as presently conducted by it; |
|
(iii) |
Company,
as the legal and beneficial owner of all of its assets, holds all of the assets
free and clear of all liens, charges and claims of others; |
|
(iv) |
the
number of authorized and issued shares in the share capital of the Company is
as warranted by the Company and the Vendors, and all of such issued shares are
duly authorized, validly issued and outstanding as fully paid and
non-assessable; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 17 -
|
(v) |
all
necessary steps and corporate proceedings have been taken by each of the
Company and the Vendors to permit the Purchased Shares to be duly and validly
transferred to and registered in the name of the Purchaser as at the Closing
Date and to cancel any and all Company Options and Company Warrants, if any, in
consideration of and exchange for the granting of an equal number of Purchaser
Options and Purchaser Warrants as contemplated herein; |
|
(vi) |
based
on actual knowledge and belief, such counsel knows of no claims, judgments,
actions, suits, litigation, proceedings or investigations, actual, pending or
threatened, against either of the Company or the Vendors which might materially
affect either of the Company, its assets or its Company’s Business or which
could result in any material liability to either of the Company, its assets or
its Company’s Business; and |
|
(vii) |
as
to all other legal matters of a like nature pertaining to the Vendors, the
Company, its assets, the Company’s Business and to the transactions
contemplated hereby as the Purchaser or the Purchaser’s counsel may reasonably
require; and |
|
(j) |
the
completion by the Purchaser and by the Purchaser’s professional advisors of a
thorough due diligence and operations review of both the Company’s Business and
the operations of the Company together with the transferability of the
Purchased Shares as contemplated by this Agreement and by any Formal Agreement. |
4.2 Company’s and
Vendors’ conditions precedent. All of the obligations of the Company
and the Vendors under this Agreement are, and under any Formal Agreement will
be, further subject to at least the following conditions for the exclusive
benefit of the Company and the Vendors fulfilled in all material aspects in the
reasonable opinion of the Company and the Vendors or to be waived by the
Company and the Vendors as soon as possible but, unless specifically indicated
as otherwise, not later than five calendar days prior to the Closing Date:
|
(a) |
the
Purchaser shall have complied with all warranties, representations, covenants
and agreements herein and under any Formal Agreement agreed to be performed or
caused to be performed by the Purchaser on or before the Closing Date; |
|
(b) |
all
matters which, in the opinion of counsel for the Company and the Vendors, are
material in connection with the transactions contemplated by this Agreement and
by any Formal Agreement shall be subject to the favourable opinion of such
counsel, and all relevant records and information shall be supplied to such
counsel for that purpose; |
|
(c) |
no
material loss or destruction of or damage to the Purchaser shall have occurred; |
|
(d) |
written
confirmation that the Purchaser has all necessary documentation in its
possession in order to irrevocably complete the proposed Cancellation of the
Founder’s Shares as required by
section “1.3” hereinabove; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 18 -
|
(e) |
written
confirmation that the Purchaser has raised into trust or otherwise sufficient
funding in order to close the minimum required Private Placement at Closing on
the terms as set forth in paragraph “3.1(ac)” hereinabove; |
|
(f) |
the
delivery to the Company and the Vendors by the Purchaser, on a confidential
basis, of all remaining material documentation and information and including,
without limitation, an updated Purchaser’s Disclosure Schedule and: |
|
(i) |
a
copy of all material contracts, agreements, reports and title information of
any nature respecting the Purchaser; and |
|
(ii) |
details
of any lawsuits, claims or potential claims relating to the Purchaser of which
the Purchaser is aware and the Company and the Vendors are unaware; |
|
(g) |
the
Purchaser will, for a period of at least five calendar days prior to the
Closing Date, during normal business hours: |
|
(i) |
make
available for inspection by the solicitors, auditors and representatives of the
Company and the Vendors, at such location as is appropriate, all of the
Purchaser’s books, records, contracts, documents, correspondence and other
written materials, and afford such persons every reasonable opportunity to make
copies thereof and take extracts therefrom at the sole cost of the Company and
the Vendors, provided such persons do not unduly interfere in the operations of
the Purchaser; |
|
(ii) |
authorize
and permit such persons at the risk and the sole cost of the Company and the
Vendors, and only if such persons do not unduly interfere in the operations of
the Purchaser, to attend at all of its places of business and operations to
observe the conduct of its business and operations, inspect its properties and
assets and, if applicable, make physical counts of its inventories, shipments
and deliveries; and |
|
(iii) |
require
the Purchaser’s management personnel to respond to all reasonable inquiries
concerning the Purchaser’s business assets or the conduct of its business
relating to its liabilities and obligations; and |
|
(h) |
the
completion by the Company and the Vendors, and by the Company’s and the
Vendors’ professional advisors, of a thorough due diligence and operations
review of both the business and operations of the Purchaser. |
4.3 Parties’
conditions precedent. The Closing of any Formal Agreement and the
rights, obligations and duties of the Parties arising upon and prior to the
Closing Date shall also be conditional upon and subject to:
|
(a) |
the
specific ratification of the terms and conditions of this Agreement by each of
the Board of Directors of the Company and the Purchaser, together with each of
the Vendors if applicable, within five business days of the due and completion
execution of this Agreement by each of the Parties (collectively, the “Ratification”); |
|
(b) |
the
completion by each of the Purchaser and the Company of an initial due diligence
and operations review of the other Party’s respective businesses and operations
within ten business days of the prior satisfaction of the Ratification (the “Initial
Due Diligence”); |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 19 -
|
(c) |
the
execution of a Formal Agreement as between the Company, the Vendors and the
Purchaser, or the corresponding delivery of a takeover bid circular by the
Purchaser to the Vendors, incorporating terms and conditions similar to those
contained in this Agreement, on or before August 31, 2012; |
|
(d) |
if
required under applicable corporate and securities laws, the receipt of all
necessary approvals from any Regulatory Authority having jurisdiction over the
transactions contemplated by this Agreement and by any Formal Agreement on or
before September 30, 2012; |
|
(e) |
if
required under applicable corporate and securities laws, shareholders of the
Purchaser and/or the Company passing an ordinary resolution or, where required,
a special resolution, approving the terms and conditions of this Agreement and
any Formal Agreement, and all of the transactions contemplated hereby and
thereby, and the Purchaser and/or the Company sending all required notice to
the Purchaser’s and/or the Company’s shareholders in connection therewith, or,
in the alternative and if allowable in accordance with applicable corporate and
securities laws, shareholders of the Purchaser and/or the Company holding over
50% of the issued shares of the Purchaser and the Company providing written
consent resolutions evidencing their approval to the terms and conditions of
this Agreement, and any Formal Agreement, and all of the transactions
contemplated hereby and thereby, together with certification of any required
notice to all shareholders of the Purchaser and/or Company of such written
consent resolutions; and |
|
(f) |
the
Board of Directors of each the Purchaser and/or the shareholders of the
Purchaser, if required, approving of the within issuance by the Purchaser to
the order and direction of the Vendors of all of the referenced Acquisition
Shares in accordance with section “1.2” hereinabove and, in addition, the Board
of Directors and/or shareholders of the Purchaser, if required, having also
approved and received any required notice of: |
|
(i) |
the
proposed Cancellation of the Founder’s Shares in accordance with section “1.3” hereinabove; |
|
(ii) |
the
proposed Change in Board and officers of the Purchaser in accordance with paragraph “3.1(ab)” hereinabove; |
|
(iii) |
in
accordance with paragraph “3.1(ac)” hereinabove, the
proposed common share Private Placement funding for the Company and/or the Purchaser; |
|
(iv) |
in
accordance with paragraph “3.1(ad)” hereinabove, if
required and possible, the proposed Change in Name of the Purchaser; and |
|
(v) |
such
other matters as may be agreed to as between the Parties prior the completion
of the transactions contemplated by this Agreement. |
4.4 Company’s and
Vendors’ additional document covenants. The Company and the Vendors
will also deliver, or caused to be delivered to the Purchaser prior to the
Closing Date, an independent assessment report and business plan respecting the
Company’s Business and assets together with such corporate and asset status
reports and/or opinions respecting the Company’s Business and assets, as may be
required by either the Purchaser or any Regulatory Authority, prepared, at a
minimum, in accordance with the applicable rules and reporting guidelines of
the appropriate Regulatory Authorities.
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 20 -
Article 5
CLOSING AND EVENTS OF CLOSING
5.1 Closing and
Closing Date. The Closing of the within purchase and delivery of the
Purchased Shares, in conjunction with any Formal Agreement, together with all
of the transactions contemplated by this Agreement and by any Formal Agreement,
shall occur on the day which is 30 calendar days following the satisfaction of
all of the conditions precedent which are set out in Article “4” hereinabove,
or on such earlier or later Closing Date as may be agreed to in advance and in
writing by each of the Parties, and will be closed at the offices of counsel
for the Purchaser, McMillan LLP, Lawyers – Patent & Trade Mark Agents,
located at 1500 Royal Centre, 1055 West Georgia Street, Vancouver, British
Columbia, Canada, V6E 4N7, at 2:00 p.m. (Vancouver time) on the Closing Date.
5.2 Latest Closing
Date. If the Closing Date has not occurred by December 31, 2012 this
Agreement will be terminated and unenforceable unless the Parties agree in writing
to grant an extension of the Closing Date.
5.3 Documents to be
delivered by the Company and the Vendors prior to the Closing Date.
Not later than two calendar days prior to the Closing Date, and in addition to
the documentation which is required by the agreements and conditions precedent
which are set forth hereinabove, the Company and the Vendors shall also execute
and deliver or cause to be delivered all such other documents, resolutions and
instruments as may be necessary, in the opinion of counsel for the Purchaser,
acting reasonably, to transfer all of the Purchased Shares to the Purchaser
free and clear of all liens, charges and encumbrances, and in particular
including, but not being limited to:
|
(a) |
a
certified copy of an ordinary resolution of the shareholders of the Company
and, if applicable, the Vendors, approving the terms and conditions of this
Agreement, any Formal Agreement and the transactions contemplated hereby and
thereby or, in the alternative, shareholders of the Company and, if applicable,
the Vendors, holding over 50% of the issued shares of the Company and/or the
Vendors providing written consent resolutions evidencing their approval to the
terms and conditions of this Agreement, any Formal Agreement and all of the
transactions contemplated thereunder together with certification of any
required notice to all shareholders of the Company and, if applicable, the
Vendors, of such written consent resolutions; |
|
(b) |
all
documentation as may be necessary and as may be required by counsel for the
Purchaser, acting reasonably, to ensure that all of the Purchased Shares have
been transferred, assigned and are registerable in the name of and for the
benefit of the Purchaser, and to ensure that all outstanding options in and to
the Company, if any, have been cancelled, under all applicable corporate and
securities laws; |
|
(c) |
certificate(s)
representing the Purchased Shares registered in the name of the Vendors, duly
endorsed for transfer to the Purchaser or irrevocable stock powers transferring
the Purchased Shares to the Purchaser; |
|
(d) |
a
certificate representing the Purchased Shares for each of the Company
registered in the name of the Purchaser; |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 21 -
|
(e) |
written
evidence of the cancellation of all outstanding Company Options and Company Warrants
in and to the Company; |
|
(f) |
written
evidence of the Release having been obtained; |
|
(g) |
a
certified copy of the resolutions of the Board of Directors of each of the
Company and, if applicable, the Vendors, authorizing the transfer by the
Vendors to the Purchaser of the Purchased Shares and canceling all outstanding
Company Options and Company Warrants in and to the Company; |
|
(h) |
consents
to act and similar documentation required in order to effect the proposed
Change in Board and officers of the Purchaser; |
|
(i) |
a
copy of all corporate records and books of account for the Company and its
respective subsidiaries and including, without limiting the generality of the
foregoing, a copy of all minute books, share register books, share certificate
books and annual reports of the Company and its respective subsidiaries; |
|
(j) |
all
necessary consents and approvals in writing to the completion of the
transactions contemplated herein; |
|
(k) |
a
certificate of an officer for each of the Company and the Vendors, if applicable,
dated as of the Closing Date, acceptable in form to counsel for the Purchaser,
acting reasonably, certifying that the warranties, representations, covenants
and agreements of each of the Company and the Vendors contained in,
respectively, this Agreement and in any Formal Agreement are true and correct
in all respects and will be true and correct as of the Closing Date as if made
by the Company and the Vendors on the Closing Date; |
|
(l) |
an
opinion of counsel to the Company and the Vendors, dated as at the Closing
Date, and addressed to the Purchaser and its counsel, in form and substance
satisfactory to the Purchaser’s counsel, acting reasonably, and including the
following: |
|
(i) |
the
due incorporation, existence and standing of the Company and its qualification
to carry on business; |
|
(ii) |
the
authorized and issued capital of the Company; |
|
(iii) |
that
all Purchased Shares have been duly authorized and issued and are fully paid
and non-assessable; |
|
(iv) |
all
necessary steps and proceedings have been taken in connection with the
execution, delivery and performance of this Agreement, any Formal Agreement and
the transactions contemplated herein and therein, respectively; |
|
(v) |
that
the Purchased Shares have been duly issued to and registered in the name of the
Purchaser and that all outstanding Company Options and Company Warrants in and
to the Company have been cancelled in compliance with all applicable corporate
and securities laws; and |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 22 -
|
(m) |
all
such other documents and instruments as the Purchaser’s counsel may reasonably
require. |
5.4 Documents to be
delivered by the Purchaser prior to the Closing Date. Not later than
two calendar days prior to the Closing Date, and in addition to the
documentation which is required by the agreements and conditions precedent
which are set forth hereinabove, the Purchaser shall also execute and deliver
or cause to be delivered all such documents, resolutions and instruments as are
necessary, in the opinion of counsel for the Company and the Vendors, acting
reasonably, to issue to the Vendors the entire Acquisition Shares free and
clear of all liens, charges and encumbrances, however, subject to the normal
U.S. resale provisions applicable thereto, and in particular including, but not
being limited to:
|
(a) |
a
certified copy of an ordinary resolution of the shareholders of the Purchaser
approving the terms and conditions of the Formal Agreement and the transactions
contemplated hereby and thereby or, in the alternative, shareholders of the
Purchaser holding over 50% of the issued shares of the Purchaser providing
written consent resolutions evidencing their approval to the terms and
conditions of the Formal Agreement and all of the transactions contemplated
thereunder together with certification of any required notice to all
shareholders of the Purchaser of such written consent resolutions; |
|
(b) |
a
certified copy of the resolutions of the sole director of the Purchaser
providing for the approval of all of the transactions contemplated hereby and
including, without limitation, each of the matters provided for in paragraph
“4.3(f)” hereinabove; |
|
(c) |
share
certificates, subject to the normal U.S. resale provisions applicable thereto,
representing all of the Acquisition Shares issued and registered in the names
of the Vendors as notified by the Vendors to the Purchaser prior to Closing in
accordance with section “1.2” hereinabove; |
|
(d) |
written
evidence that the Purchaser has all necessary documentation in its possession
in order to irrevocably complete the proposed Cancellation of the Founder’s
Shares as required by section “1.3” hereinabove; |
|
(e) |
all
necessary consents and approvals in writing to the completion of the
transactions contemplated herein; |
|
(f) |
a
certificate of an officer of the Purchaser, dated as of the Closing Date,
acceptable in form to counsel for the Company and the Vendors, acting
reasonably, certifying that the warranties, representations, covenants and
agreements of the Purchaser contained in, respectively, this Agreement and in
any Formal Agreement are true and correct and will be true and correct as of
the Closing Date as if made by the Purchaser on the Closing Date; |
|
(g) |
resignations
and similar documentation required in order to effect the proposed Change in
Board and officers of the Purchaser in accordance with paragraph
“3.1(ab)” hereinabove; |
|
(h) |
a
certified copy of the resolutions of the Board of Directors of the Purchaser
accepting the proposed Change in Board and officers of the Purchaser; |
|
(i) |
an
opinion of counsel to the Purchaser, dated as at the Closing Date, and
addressed to the Company, the Vendors and their counsel, in form and substance
satisfactory to the Company’s and the Vendors’ counsel, acting reasonably, and
including the following: |
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 23 -
|
(i) |
the
due incorporation, existence and standing of the Purchaser and its
qualification to carry on business; |
|
(ii) |
the
authorized and issued capital of the Purchaser (relying on a certificate of the
Transfer Agent as to the number and class of securities issued); |
|
(iii) |
all
necessary steps and proceedings have been taken in connection with the
execution, delivery and performance of the Formal Agreement and the
transactions contemplated herein and therein, respectively; and |
|
(iv) |
the
due issuance of the Acquisition Shares as fully paid and non-assessable and
having been issued in accordance with an applicable registration and prospectus
exemption available under the Securities Act; and |
|
(j) |
all
such other documents and instruments as the Company’s and the Vendors’ counsel
may reasonably require. |
Article 6
DUE DILIGENCE AND NON-DISCLOSURE
6.1 Due Diligence.
Each of the Parties shall forthwith conduct such further due diligence
examination of the other Parties as it deems appropriate.
6.2 Confidentiality.
Each Party may in a reasonable manner carry out such investigations and due
diligence as to the other Parties, at all times subject to the confidentiality
provisions hereinbelow, as each Party deems necessary. In that regard the
Parties agree that each shall have full and complete access to the Purchaser’s
and the Company’s respective books, records, financial statements and other
documents, articles of incorporation, by-laws, minutes of Board of Directors’
meetings and their committees, investment agreements, material contracts and as
well such other documents and materials as the Vendors or the Purchaser, or
their respective counsel, may deem reasonable and necessary to conduct an
adequate due diligence investigation of each such Party, its respective
operations and financial condition prior to the Closing Date.
6.3 Non-disclosure.
Subject to the provisions hereinbelow, the Parties, for themselves, their
officers, directors, shareholders, consultants, employees and agents agree that
they each will not disseminate or disclose, or knowingly allow, permit or cause
others to disseminate or disclose to third parties who are not subject to
express or implied covenants of confidentiality, without the other Parties’
express written consent, either: (i) the fact or existence of this Agreement or
discussions and/or negotiations between them involving, inter alia,
possible business transactions; (ii) the possible substance or content of those
discussions; (iii) the possible terms and conditions of any proposed
transaction; (iv) any statements or representations (whether verbal or written)
made by either Party in the course of or in connection with those discussions;
or (v) any written material generated by or on behalf of any Party and such
contacts, other than such disclosure as may be required under applicable securities
legislation or regulations, pursuant to any order of a court or on a “need to
know” basis to each of the Parties respective professional advisors.
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 24 -
6.4 Public
Announcements. Notwithstanding the provisions of this Article, the
Parties agree to make such public announcements of this Agreement promptly upon
its execution in accordance with the requirements of applicable securities
legislation and regulations.
Article 7
ASSIGNMENT AND VARIATIONS
7.1 Assignment.
Save and except as provided herein, no Party may sell, assign, pledge or
mortgage or otherwise encumber all or any part of its interest herein without
the prior written consent of all of the other Parties.
7.2 Amendment.
This Agreement and any provision thereof may only be amended in writing and
only by duly authorized signatories of each of the respective Parties.
7.3 Variation in
the terms of this Agreement upon review. It is hereby acknowledged
and agreed by each of the Parties that where any variation in the terms and/or
conditions of this Agreement or any Formal Agreement is reasonably required by
any of the Regulatory Authorities as a condition of their respective Regulatory
Approval to any of the terms and conditions of this Agreement, any such
reasonable variation, having first been notified to all Parties, will be deemed
to be accepted by each of the Parties and form part of the terms and conditions
of this Agreement. If any such Party, acting reasonably, deems any such
notified variation unreasonable, that Party may, in its sole and absolute
discretion, and within a period of not greater than ten calendar days from its
original notification and at its cost, make such further applications or
submissions to the relevant Regulatory Authority as it considers necessary in
order to seek an amendment to any such variation; provided, however, that the
final determination by any such Regulatory Authority to any such application or
submission by such objecting Party will be deemed binding upon such Party who
must then provide notification to all other Parties as provided for
hereinabove.
Article 8
FORCE MAJEURE
8.1 Events.
If any Party is at any time prevented or delayed in complying with any
provisions of this Agreement by reason of strikes, walk-outs, labour shortages,
power shortages, fires, wars, acts of God, earthquakes, storms, floods,
explosions, accidents, protests or demonstrations by environmental lobbyists or
native rights groups, delays in transportation, breakdown of machinery,
inability to obtain necessary materials in the open market, unavailability of
equipment, governmental regulations restricting normal operations, shipping
delays or any other reason or reasons beyond the control of that Party, then
the time limited for the performance by that Party of its respective
obligations hereunder shall be extended by a period of time equal in length to
the period of each such prevention or delay.
8.2 Notice.
A Party shall, within seven calendar days, give notice to the other Parties of
each event of force majeure under section “8.1” hereinabove, and upon
cessation of such event shall furnish the other Parties with notice of that
event together with particulars of the number of days by which the obligations
of that Party hereunder have been extended by virtue of such event of force
majeure and all preceding events of force majeure.
Article 9
ARBITRATION
9.1 Matters for
arbitration. The Parties agree that all questions or matters in
dispute with respect to this Agreement shall be submitted to arbitration
pursuant to the terms hereof.
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 25 -
9.2 Notice.
It shall be a condition precedent to the right of any Party to submit any
matter to arbitration pursuant to the provisions hereof that any Party
intending to refer any matter to arbitration shall have given not less than two
calendar days’ prior written notice of its intention to do so to the other
Parties together with particulars of the matter in dispute. On the expiration
of such two calendar days the Party who gave such notice may proceed to refer
the dispute to arbitration as provided in section “9.3” hereinbelow.
9.3 Appointments.
The Party desiring arbitration shall appoint one arbitrator, and shall notify
the other Parties of such appointment, and the other Parties shall, within ten
calendar days after receiving such notice, appoint an arbitrator, and the two
arbitrators so named, before proceeding to act, shall, within five calendar
days of the appointment of the last appointed arbitrator, unanimously agree on
the appointment of a third arbitrator, to act with them and be chairperson of
the arbitration herein provided for. If the other Parties shall fail to
appoint an arbitrator within ten calendar days after receiving notice of the
appointment of the first arbitrator, and if the two arbitrators appointed by the
Parties shall be unable to agree on the appointment of the chairperson, the
chairperson shall be appointed under the provisions of the Rules of the British
Columbia Commercial Arbitration Act (the “Arbitration Act”).
Except as specifically otherwise provided in this section, the arbitration
herein provided for shall be conducted in accordance with the rules and
procedures promulgated under the Arbitration Act. The chairperson, or in the
case where only one arbitrator is appointed, the single arbitrator, shall fix a
time and place in the City of Vancouver, Province of British Columbia, Canada,
for the purpose of hearing the evidence and representations of the Parties, and
he shall preside over the arbitration and determine all questions of procedure
not provided for under such Arbitration Act rules or this section. After
hearing any evidence and representations that the Parties may submit, the
single arbitrator, or the arbitrators, as the case may be, shall make an award
and reduce the same to writing, and deliver one copy thereof to each of the
Parties. The expense of the arbitration shall be paid as specified in the
award.
9.4 Award.
The Parties agree that the award of a majority of the arbitrators, or in the
case of a single arbitrator, of such arbitrator, shall be final and binding
upon each of them.
Article 10
TERMINATION
10.1 Default.
The Parties agree that if any Party is in default with respect to any of the
provisions of this Agreement (herein called the “Defaulting Party”), the
non-defaulting Party (herein called the “Non-Defaulting Party”) shall
give notice to the Defaulting Party designating such default, and within 14
calendar days after its receipt of such notice, the Defaulting Party shall
either:
|
(a) |
cure
such default, or commence proceedings to cure such default and prosecute the
same to completion without undue delay; or |
|
(b) |
give
the Non-Defaulting Party notice that it denies that such default has occurred
and that it is submitting the question to arbitration as herein provided. |
10.2 Arbitration.
If arbitration is sought, a Party shall not be deemed in default until the
matter shall have been determined finally by appropriate arbitration under the
provisions of Article “9” hereinabove.
10.3 Curing the
default. If:
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 26 -
|
(a) |
the
default is not so cured or the Defaulting Party does not commence or diligently
proceed to cure the default; or |
|
(b) |
arbitration
is not so sought; or |
|
(c) |
the
Defaulting Party is found in arbitration proceedings to be in default, and
fails to cure it within five calendar days after the rendering of the
arbitration award, |
the Non-Defaulting Parties may, by written
notice given to the Defaulting Party at any time while the default continues,
terminate the interest of the Defaulting Party in and to this Agreement.
10.4 Termination.
In addition to the foregoing it is hereby acknowledged and agreed by the
Parties that this Agreement will be terminated in the event that:
|
(a) |
the
entire Ratification is not received within twenty business days of the due and completion
execution of this Agreement by each of the Parties; |
|
(b) |
a
Formal Agreement as between the Company, the Vendors and the Purchaser, or the
corresponding delivery of a takeover bid circular by the Purchaser to the
Vendors, incorporating terms and conditions similar to those contained in this
Agreement is not entered into or provided on or before August 31, 2012; |
|
(c) |
either
of the Parties has not either satisfied or waived each of their respective
conditions precedent prior to Closing in accordance with the provisions of
Article “4” hereinabove; |
|
(d) |
each
of the conditions specified in section “4.3” hereinabove have not been
satisfied in the manner and within the time periods as specified therein; |
|
(e) |
either
of the Parties has failed to deliver or caused to be delivered any of their
respective documents required to be delivered by Articles “5” and “6”
hereinabove prior to the Closing Date in accordance with the provisions of
Articles “5” and “6”; |
|
(f) |
the
final Closing has not occurred on or before December 31, 2012 in accordance
with section “5.2” hereinabove; or |
|
(g) |
by
agreement, in writing, of each of the Parties; |
and in such event, unless waived by each
Party in advance and in writing, this Agreement will be terminated and be of no
further force and effect other than the obligations under Article “6”
hereinabove.
Article 11
NOTICE
11.1 Notice.
Each notice, demand or other communication required or permitted to be given
under this Agreement shall be in writing and shall be sent by prepaid registered
mail deposited in a post office addressed to the Party entitled to receive the
same, or delivered to such Party, at the address for such Party specified
above. The date of receipt of such notice, demand or other communication shall
be the date of delivery thereof if delivered, or, if given by registered mail
as aforesaid, shall be deemed conclusively to be the third calendar day after
the same shall have been so mailed, or 15 calendar days in the case of an
addressee with an address for service in a country other than a country in
which the Party giving the notice, demand or other communication resides,
except in the case of interruption of postal services for any reason
whatsoever, in which case the date of receipt shall be the date on which the notice,
demand or other communication is actually received by the addressee.
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 27 -
11.2 Change of
address. Either Party may at any time or from time to time notify the
other Parties in writing of a change of address and the new address to which
notice shall be given to it thereafter until further change.
Article 12
GENERAL PROVISIONS
12.1 Entire Agreement.
This Agreement constitutes the entire agreement to date between the Parties and
supersedes every previous agreement, communication, expectation, negotiation,
representation or understanding, whether oral or written, express or implied,
statutory or otherwise, between the Parties with respect to the subject matter
of this Agreement and including, without limitation, that certain prior Letter
of Intent, dated March 1, 2012, as entered into between the Company and FBP
Capital Corp.
12.2 Enurement.
This Agreement will enure to the benefit of and will be binding upon the
Parties, their respective heirs, executors, administrators and assigns.
12.3 Time of the
essence. Time will be of the essence of this Agreement.
12.4 Representation
and costs. It is hereby acknowledged by each of the Parties that
McMillan LLP, Lawyers – Patent & Trade Mark Agents, acts solely for the
Purchaser and, correspondingly, that the Company and the Vendors have been
required by each of McMillan LLP and the Purchaser to obtain independent legal
advice with respect to their respective reviews and execution of this
Agreement. Each Party to this Agreement will also bear and pay its own costs,
legal and otherwise, in connection with its respective preparation, review and
execution of this Agreement and, in particular, that the costs involved in the
preparation of this Agreement, and all documentation necessarily incidental
thereto, by McMillan LLP shall be at the cost of the Purchaser.
12.5 Applicable law.
The situs of this Agreement is the City of Vancouver, Province of British
Columbia, Canada, and for all purposes this Agreement will be governed
exclusively by and construed and enforced in accordance with the laws and
Courts prevailing in the Province of British Columbia, Canada.
12.6 Further
assurances. The Parties hereby, jointly and severally, covenant and
agree to forthwith, upon request, execute and deliver, or cause to be executed
and delivered, such further and other deeds, documents, assurances and
instructions as may be required by the Parties or their respective counsel in
order to carry out the true nature and intent of this Agreement.
12.7 Severability and
construction. Each Article, section, paragraph, term and provision of
this Agreement, and any portion thereof, shall be considered severable, and if,
for any reason, any portion of this Agreement is determined to be invalid,
contrary to or in conflict with any applicable present or future law, rule or
regulation in a final unappealable ruling issued by any court, agency or
tribunal with valid jurisdiction in a proceeding to any of the Parties is a
party, that ruling shall not impair the operation of, or have any other effect
upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding on the Parties and continue to
be given full force and agreement as of the date upon which the ruling becomes
final).
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 28 -
12.8 Captions.
The captions, section numbers and Article numbers appearing in this Agreement
are inserted for convenience of reference only and shall in no way define,
limit, construe or describe the scope or intent of this Agreement nor in any
way affect this Agreement.
12.9 Currency.
Unless otherwise stipulated, all references to money amounts hereunder shall be
in lawful money of the United States.
12.10 Counterparts.
This Agreement may be signed by the Parties in as many counterparts as may be
necessary, and via facsimile if necessary, each of which so signed being deemed
to be an original and such counterparts together constituting one and the same
instrument and, notwithstanding the date of execution, being deemed to bear the
effective execution date as set forth on the front page of this Agreement.
12.11 No partnership or
agency. The Parties have not created a partnership and nothing
contained in this Agreement shall in any manner whatsoever constitute any Party
the partner, agent or legal representative of any other Party, nor create any
fiduciary relationship between them for any purpose whatsoever. No Party shall
have any authority to act for, or to assume any obligations or responsibility
on behalf of, any other party except as may be, from time to time, agreed upon
in writing between the Parties or as otherwise expressly provided.
12.12 Consents and
waivers. No consent or waiver expressed or implied by either Party in
respect of any breach or default by the other in the performance by such other
of its obligations hereunder shall:
|
(a) |
be
valid unless it is in writing and stated to be a consent or waiver pursuant to
this section; |
|
(b) |
be
relied upon as a consent to or waiver of any other breach or default of the
same or any other obligation; |
|
(c) |
constitute
a general waiver under this Agreement; or |
|
(d) |
eliminate
or modify the need for a specific consent or waiver pursuant to this section in
any other or subsequent instance. |
ACCEPTANCE AND EXECUTION
It is expressly
understood and agreed that as soon as practicable after the execution of this
Agreement the undersigned will use their best efforts to enter into a Formal
Agreement or takeover bid incorporating the terms and conditions hereof, in
addition to normal share purchase terms and conditions, and the undersigned
hereto hereby, jointly and severally, covenant and agree to forthwith, upon
request, execute and deliver, or cause to be executed and delivered, such
further and other deeds, documents, assurances and instructions as may be
required by the undersigned hereto or their respective counsel in order to
carry out the true nature and intent of this Agreement and any such any Formal
Agreement. At all times the undersigned hereto acknowledge and agree
that the completion of any such Formal Agreement is subject to the prior
ratification and approval of the terms and conditions of any such Formal
Agreement by the Board of Directors and, if applicable, shareholders of the
Purchaser, the Vendors, the Company and such Regulatory Authorities as may have
jurisdiction over the Purchaser, the Company and the Vendors.
-- Agreement In Principle --
-- I-Level Media Group Incorporated -
I-Level Media Group Incorporated
July 9, 2012
- 29 -
Please acknowledge
your acceptance of the general terms of this Agreement by kindly executing the
same in the space provided hereinbelow. This offer is only open for acceptance
until 5:00 p.m. (Beijing, PRC, time) on July 31, 2012.
Yours very truly,
I-Level Media Group Incorporated
Per:
“Francis Chiew”
Francis Chiew,
Authorized Signatory for the Purchaser
The within
offer and terms of Agreement are hereby accepted by each of the Company and the
within Vendor effective on this 9th day of July, 2012:
Telupay PLC
Per:
“Adrian C. Ansell”
Adrian C. Ansell, Authorized
Signatory for the Company and a Vendor
__________
-- Agreement In Principle --
-- I-Level Media Group Incorporated -