EXHIBIT 2.2
CONDITIONAL CONTRACT FOR SALE OF SHARE
made on January 21, 2000, by and between:
Accom Virtual Studio Inc.,
a Delaware corporation (USA);
represented by Junaid Sheikh
further called "Seller"
and
IMadGINE Video Systems Marketing B.V.
with its registered office in Amsterdam, The Netherlands
represented by Avi Sharir
further called "Buyer"
further collectively referred to as "Parties".
WHEREAS:
(1) Seller is the sole shareholder in Accom Poland Sp7(3)ka z o.o. with its
registered office in Szczecin, registered with the District Court in
Szczecin under number RHB 4841, having the share capital of PLN
69,208.00 (sixty-nine thousand two hundred and eight zloties);
(2) Seller holds one share in Accom Poland Sp7(3)ka z o.o. of the par value
of PLN 69,208.00 (sixty-nine thousand two hundred and eight zloties),
which represents 100% of the share capital and which entitles the
holder to 100% of votes at the Meeting of Shareholders of Accom Poland
Sp7(3)ka z o.o.;
(3) Seller wishes to sell and Buyer wishes to buy Seller's sole share in
Accom Poland Sp7(3)ka z o.o.
NOW, THEREFORE, PARTIES AGREE AS FOLLOWS:
ss.1
DEFINITIONS
The following expressions shall for the purposes of this contract mean:
ACCOM POLAND - a limited liability company doing business under the name Accom
Poland Sp7(3)ka z o.o., with its registered office in Szczecin, registered with
the District Court in Szczecin under number RHB 4841;
CONTRACT - this conditional contract for sale of share with all enclosures
thereto;
SHARE - the sole share in Accom Poland of PLN 69,208.00 (sixty-nine thousand two
hundred and eight zloties) nominal value, held by Seller.
ss.2
SALE OF SHARE IN ACCOM POLAND
(1) Subject to the terms and conditions of this contract, Seller shall sell
to Buyer the Share in Accom Poland and represents that the Share is the
sole existing share in Accom Poland and that it is free of any charges,
encumbrances or third party rights. The Share's nominal value is PLN
69,208.00 (sixty-nine thousand two hundred and eight zloties). The
Share represents 100% (one hundred per cent) of the share capital of
Accom Poland and entitles the holder to 100% (one hundred per cent) of
votes at the Meeting of Shareholders of Accom Poland.
(2) Subject to the terms and conditions of this contract, Buyer shall buy
the Share described in sec. 1 from Seller.
ss.3
PRICE
Parties agree that the full price for the Share shall be US $2,610,000.00 (two
million six hundred and ten thousand US dollars). Seller hereby instructs Buyer
to pay the purchase price in accordance with payment instructions provided to
Buyer by Seller's parent corporation, Accom, Inc.
ss.4
REPRESENTATIONS AND WARRANTIES
(1) Seller hereby represents and warrants that:
- it has the right and authorisation to execute and perform
under this contract;
- persons representing Seller are duly authorised and may bind
it. In addition,;
Accom Poland has been properly registered and validly exists under the laws of
Poland, and may carry on its business in Poland and own and possess property. In
addition, Seller represents that:
i) Accom Poland has been registered in the Commercial Register
with the District Court in Szczecin, Business Division, under
number RHB 4841;
ii) The share capital of Accom Poland consists of 1 (one) share
and amounts to PLN 69,208.00 (sixty nine thousand two hundred
and eight zloties);
iii) The only one share in Accom Poland's share capital has been
fully paid up and is owned directly by Accom Virtual Studio
Inc. with its registered office in Delaware (USA);
iv) The only share of Accom Poland is free of any charges,
encumbrances, or other rights of third parties. Accom Poland
is not under a duty to issue any new shares;
v) Accom Poland's Articles of Association dated 28 November 1995
(with 5 January 1996 amendment) are currently binding;
vi) Accom Poland is not an owner or perpetual usufructuary of real
estate;
vii) No liquidation, composition or similar proceedings have been
commenced against Accom Poland;
viii) There is no pending claim, action, investigation or proceeding
of any kind against Accom Poland or in which Accom Poland is a
party, with an exception of tax proceedings (VAT);
ix) Neither the conclusion of this Contract nor the performance
hereof violates the Articles of Association of Accom Poland,
causes the loss of any of Accom Poland's significant rights or
results in any encumbrance or charge on Accom Poland assets;
provided, that all taxes due on the transaction are paid on
time and all notifications are filed as required by law;
x) Upon consummation of the conditional contract for the purchase
of all shares of Accom Poland, the Buyer will acquire an
unfettered right to the good and valid title to all shares of
Accom Poland, free and clear of all liens, charges,
encumbrances, preemptive rights and other claims and, upon
delivery of the shares of Accom Poland, Buyer will acquire
such good and valid title to all shares of Accom Poland, free
and clear of all liens, charges, encumbrances, preemptive
rights and other claims; and
xi) Seller agrees to and incorporates by reference any
contemporaneous representations and warranties made by Accom
Inc. with respect to the conditions and operations of Seller.
Restrictions and limitations expressed in the opinion of E&Y S.A. apply
to the representations and warranties set out above.
(1) Seller represents that all its representations and warranties set out
in sec. 1 shall be true as at the day referred to in ss.5.
(2) Buyer hereby represents and warrants that:
- it has the right and authorisation to execute and perform
under this contract;
- persons representing Buyer are duly authorised and may bind
it;
- Buyer is an entity duly organised and validly existing under
the laws of The Netherlands, is legally authorised to do its
business, and execution of and performance under this contract
shall not violate Buyer's Articles of Association and/or other
such documents, or contracts to which Buyer is a party;
- Buyer has obtained all authorisations and approvals and has
performed all acts necessary to execute and perform under this
contract.
ss.5
CONDITIONAL TRANSFER OF OWNERSHIP IN SHARE
(a) The transfer of shares of Accom Poland from Seller to Buyer
under this Contract shall be conditional and will be effective
upon fulfillment of one of the following conditions:
(i) issuance to both the Buyer and Accom Poland of the letters
from the President of the Office for Competition and Consumer
Protection informing each of them that the Purchaser's
purchase of the share in Accom Poland does not require
pre-merger notification;
(ii) issuance to both the Buyer and Accom Poland, whichever
occurs later, of the no-reservation letters with respect to
the transaction of sale of Accom's Poland share to Buyer; or
(iii) non-issuance to any of the Buyer or Accom Poland of the
no-reservation letters with respect to the transaction of the
sale of Accom Poland's share to the Buyer, within sixty-five
(65) days from the date of both the Buyer and Accom Poland
filing the complete applications, subject to the provision of
Article 11a.6 of the Law of February 24, 1990 on Counteracting
the Monopolistic Practices and Consumer Protection (Dz.U. Nr
14, poz. 88, as amended).
(b) The transfer of the Accom Poland share will occur
automatically on the next working day falling after (i) the
date of receiving the latter letter as referred to in
sub-Section (i) above; (ii) the date of receiving the latter
no-reservation letter as referred to in sub-Section (ii)
above; or (iii) the date on which the latter term which has
begun as referred to in sub-Section (iii) has elapsed,
whichever occurs earlier.
(c) In the event that the President of the Office for Competition
and Consumer Protection issues to either the Buyer or Accom
Poland a reservation letter with respect to the transaction as
contemplated, this Contract will have no legal effect and the
Buyer and Seller shall mutually agree upon actions to be taken
with respect to the transactions contemplated hereby,
including without
limitation, considering a transaction regarding the sale of
all the assets of Accom Poland to Buyer.
In the event that the condition subsequent to Buyer's obligations
mentioned in Section 5 are not satisfied, then this Contract, and all
the transactions contemplated herein shall become null and void. In
such an event, Seller shall cause the immediate return of the purchase
price (plus all interest accrued thereon), to Buyer.
ss.6
OBLIGATIONS OF PARTIES
(1) Parties shall without delay file appropriate applications to the
President of Office for Protection of Competition and Consumers to have
the decisions referred to in ss.5.1 issued, unless such applications
have already been filed before execution of this contract.
(2) Either Party shall without delay notify the other of obtaining the
decision referred to in ss.5.1 or of expiry of the time limit set out
in ss.5.2.
(3) As per the Polish Commercial Code Art. 187, Seller shall - within 7
(seven) days of the date this contract becomes legally effective -
notify Accom Poland's Management Board of selling the share referred to
in ss.2 of this contract.
(4) Parties shall co-operate and strive to give legal effect to this
contract and to sign all agreements and documents required to this end.
ss.7
CONFIDENTIALITY
(1) Neither Party shall disclose to third parties any information relating
to the other Party which it has obtained in connection with the
execution of or performance under this contract, unless such
information has otherwise entered the public domain.
(2) The above confidentiality clause shall not apply to: (i) information
that must be disclosed to state authorities, in accordance with and to
the extent required by Polish law, and (ii) information that both
Parties must render to their respective shareholders, parents and
subsidiaries, if any.
(3) Parties shall ensure that this clause is observed by their employees,
agents and advisors.
(4) Parties agree and undertake it that no public notices and announcements
related to this contract shall be made without Parties' mutual consent
as to contents and timing thereof.
(5) This clause shall be in force for four (4) years from the date of this
contract.
ss.8
DISPUTE RESOLUTION
The parties shall endeavor to resolve any disputes that may arise hereunder by
themselves. Within fifteen (15) days after notice of any dispute is given by a
party, an executive officer of each of the parties will meet and make a good
faith attempt to resolve such dispute. If, notwithstanding such efforts and
meetings, the Buyer and Seller are not successful in resolving such dispute,
then they shall submit any dispute arising under this Contract, for a monetary
claim exceeding US $100,000, to binding arbitration by a panel of three
arbitrators under the rules and auspices of the American Arbitration Association
(the "AAA"). Such arbitration, if necessary, shall apply New York law and shall
take place in New York, or at such other venue agreed to in writing by the
parties.
ss.9
GOVERNING LAW
This contract shall be governed by New York law, other than its conflict of law
rules, and other than Polish law as may be required with respect to actions
contemplated hereunder with respect to Accom Poland.
ss.10
CONTRACT LANGUAGE
(1) This contract has been executed in two language versions: English and
Polish. For the purposes of interpretation, the English version shall
prevail and control.
(2) This contract has been made in four copies, two copies in each
language. Each of the Parties shall receive one copy of each language
version.
ss.11
SERVICE OF NOTICE
(1) All communications and notices related to this contract shall be made
in writing and sent to the other Party by courier, fax (confirmed by
registered mail) or email to the following addresses:
if to Seller
address: c/o Accom Inc., 1490 O'Brien Drive, Menlo Park, CA 94025, USA
fax no.: 650-327-2511
email: junaid@accom.com
if to Buyer
address: c/o Rokin Corporate, Stawinskylaan 2001, Postbus 75640, 1077
ZZ Amsterdam, The Netherlands
fax no.: 31-20-546-0717
email: ________________
(2) Parties shall without delay notify each other of any changes of the
above addresses. A change of address shall be deemed to bind the other
Party on valid service of notice thereof.
(3) Parties agree that the Party defaulting under sec. 2 shall be liable
for any damage or loss resulting from such default.
ss.12
MISCELLANEOUS
(1) No obligation under this contract may in whole or in part be
transferred to any third party without prior written consent of the
other Party.
(2) To be valid, any changes or amendments to this contract or any
enclosures thereto must be made in writing.
(3) Headings have been inserted only for convenience and shall in no way
affect interpretation of this contract.
(4) Each Party shall bear its costs involved in drafting, executing and
performing under this contract.
(5) Stamp duty on this contract (equivalent to 2% of the Share purchase
price) shall be paid by both Parties in equal parts.
This contract has been executed by duly authorised representatives of Parties on
the day first above written.
For Seller:
/s/ Junaid Sheikh
- ------------------
President and CEO
- ------------------
For Buyer:
/s/ Avi Sharir
- ------------------
Director