Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - Blink Charging Co. | f8k120409_newimg.htm |
| EX-3.1 - AMENDMENT TO CERTIFICATE OF INCORPORATION - Blink Charging Co. | f8k120409ex3i_newimg.htm |
| EX-4.1 - SUBSCRIPTION AGREEMENT - Blink Charging Co. | f8k120409ex4i_newimg.htm |
| EX-3.2 - CERTIFICATE OF DESIGNATION - Blink Charging Co. | f8k120409ex3ii_newimg.htm |
| EX-4.2 - FORM OF WARRANT - Blink Charging Co. | f8k120409ex4ii_newimg.htm |
Exhibit 2.1
SHARE
EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT,
dated as of November December 7, 2009 (this “Agreement”) by and among Car
Charging Inc., a Delaware corporation (“Car Charging”), the
stockholders of Car Charging set forth on Schedule I hereto (the “Car Charging Shareholders”),
New Image Concepts, Inc., a Nevada corporation (“New Image”), and a majority of
the stockholders of New Image set forth on Schedule II hereto (the “New Image Controlling
Stockholders”).
WHEREAS, the Car Charging
Shareholders own 100% of the issued and outstanding ordinary shares of Car
Charging (such shares being hereinafter referred to as the “Car Charging Shares”);
and
WHEREAS, (i) the Car Charging
Shareholders and Car Charging believe it is in their respective best interests
for the Car Charging Shareholders to exchange 1,000 Car Charging Shares for
fifty million (50,000,000) newly-issued shares as set forth on Schedule III
hereto of common stock, $0.001 par value per share, of New Image (the
“Common Stock”), which,
at the time of this Agreement, shall constitute 66.8% of the issued and
outstanding shares of New Image Common Stock immediately after the closing of
the transactions contemplated herein and ten million (10,000,000) newly-issued
shares as set forth on Schedule IV hereto of New Image’s preferred stock, par
value $0.001 (the “Series A
Preferred Stock”), representing 100% of the issued and outstanding Series
A Preferred Stock of New Image (and together with the Common Stock, the “New ImageShares”) , and (ii) New Image
believes it is in its best interest and the best interest of its stockholders to
acquire the Car Charging Shares in exchange for the New Image Shares, all upon
the terms and subject to the conditions set forth in this Agreement (the “Share Exchange”);
and
WHEREAS, it is the intention
of the parties that: (i) the Share Exchange shall qualify as a tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended (the “Code”);
and (ii) the Share Exchange shall qualify as a transaction in securities exempt
from registration or qualification under the Securities Act of 1933, as amended
and in effect on the date of this Agreement (the “Securities Act”);
and
NOW, THEREFORE, in
consideration of the mutual terms, conditions and other agreements set forth
herein, the parties hereto agree as follows:
ARTICLE
I
EXCHANGE
OF CAR CHARGING SHARES FOR NEW IMAGE SHARES
Section 1.1Agreement to Exchange Car
Charging Shares for New Image Shares. On the Closing Date (as hereinafter
defined) and upon the terms and subject to the conditions set forth in this
Agreement, the Car Charging Shareholders shall assign, transfer, convey and
deliver the Car Charging Shares to New Image. In consideration and
exchange for the Car Charging Shares, New Image shall issue, transfer, convey
and deliver the New Image Shares to the Car Charging Shareholders.
Section 1.2 Closing and Actions at
Closing. The closing of the Share Exchange (the “Closing”) shall take place
remotely via the exchange of documents and signatures at 10:00 a.m. E.D.T. on
the day the conditions to closing set forth in Articles V and VI herein have
been satisfied or waived, or at such other time and date as the parties hereto
shall agree in writing (the “Closing Date”).
Section 1.3 Directors of New Image at
Closing Date. On the Closing Date, Belen Flores, the current director of
New Image, shall resign from the Board of Directors of New Image (the “New Image Board”) and Andy
Kinard’s, Richard Adeline’s and Michael Bernstein’s appointment to the New Image
Board shall become effective.
Section 1.4Officers of New Image at
Closing Date. On the Closing Date, Belen Flores shall resign from each
officer position held at New Image and immediately thereafter, the New Image
Board shall appoint Andy Kinard to serve as President and Richard Adeline to
serve as Chief Financial Officer and Treasurer.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF NEW IMAGE
New Image
represents, warrants and agrees that all of the statements in the following
subsections of this Article II are true and complete as of the date
hereof.
Section 2.1Corporate
Organization
a. New
Image is a corporation duly organized, validly existing and in good standing
under the laws of Nevada, and has all requisite corporate power and authority to
own its properties and assets and governmental licenses, authorizations,
consents and approvals to conduct its business as now conducted and is duly
qualified to do business and is in good standing in each jurisdiction in which
the nature of its activities makes such qualification and being in good standing
necessary, except where the failure to be so qualified and in good standing will
not have a Material Adverse Effect on the activities, business, operations,
properties, assets, condition or results of operation of New Image. “Material Adverse Effect”
means, when used with respect to New Image, any event, occurrence, fact,
condition, change or effect, which, individually or in the aggregate, would
reasonably be expected to be materially adverse to the business, operations,
properties, assets, condition (financial or otherwise), or operating results of
New Image, or materially impair the ability of New Image to perform its
obligations under this Agreement, excluding any change, effect or circumstance
resulting from (i) the announcement, pendency or consummation of the
transactions contemplated by this Agreement, or (ii) changes in the United
States securities markets generally.
b. Copies
of the certificate of incorporation and by-laws of New Image with all amendments
thereto, as of the date hereof (the “New Image Charter
Documents”), have been furnished to the Car Charging Shareholders and to
Car Charging, and such copies are accurate and complete as of the date hereof.
The minute books of New Image are current as required by law, contain the
minutes of all meetings of the New Image Board and stockholders of New Image
from its date of incorporation to the date of this Agreement, and adequately
reflect all material actions taken by the New Image Board and stockholders of
New Image. New Image is not in violation of any of the provisions of the New
Image Charter Documents.
Section 2.2Capitalization of New
Image.
a. The
authorized capital stock of New Image consists of 500,000,000 shares which are
authorized as Common Stock, of which 296,957,529 post split shares are issued
and outstanding, immediately prior to this Share Exchange. We are not
authorized to issue shares of preferred stock.
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b. All
of the issued and outstanding shares of Common Stock of New Image immediately
prior to this Share Exchange are, and all shares of Common Stock of New Image
when issued in accordance with the terms hereof will be, duly authorized,
validly issued, fully paid and non-assessable, have been issued in compliance
with all applicable U.S. federal and state securities laws and state corporate
laws, and have been issued free of preemptive rights of any security holder.
Except with respect to securities to be issued in connection with the Private
Placement and to the Car Charging Shareholders pursuant to the terms hereof, as
of the date of this Agreement there are no outstanding or authorized options,
warrants, agreements, commitments, conversion rights, preemptive rights or other
rights to subscribe for, purchase or otherwise acquire or receive any shares of
New Image’s capital stock, nor are there or will there be any outstanding or
authorized stock appreciation, phantom stock, profit participation or similar
rights, pre-emptive rights or rights of first refusal with respect to New Image
or any Common Stock, or any voting trusts, proxies or other agreements,
understandings or restrictions with respect to the voting of New Image’s capital
stock. There are no registration or anti-dilution rights, and there is no voting
trust, proxy, rights plan, anti-takeover plan or other agreement or
understanding to which New Image is a party or by which it is bound with respect
to any equity security of any class of New Image. New Image is not a party to,
and it has no knowledge of, any agreement restricting the transfer of any shares
of the capital stock of New Image. The issuance of all of the shares
of New Image described in this Section 2.2 have been, or will be, as applicable,
in compliance with U.S. federal and state securities laws and state corporate
laws and no stockholder of New Image has any right to rescind or bring any other
claim against New Image for failure to comply with the Securities Act of 1933,
as amended (the “Securities Act”), or state securities laws.
c. There
are no outstanding contractual obligations (contingent or otherwise) of New
Image to retire, repurchase, redeem or otherwise acquire any outstanding shares
of capital stock of, or other ownership interests in, New Image or to provide
funds to or make any investment (in the form of a loan, capital contribution or
otherwise) in any other person.
Section 2.3 Subsidiaries and Equity
Investments. New Image does not directly or indirectly own any capital
stock or other securities of, or any beneficial ownership interest in, or hold
any equity or similar interest, or have any investment in any corporation,
limited liability company, partnership, limited partnership, joint venture or
other company, person or other entity.
Section 2.4 Authorization, Validity and
Enforceability of Agreements. New Image has all corporate power and
authority to execute and deliver this Agreement and all agreements, instruments
and other documents to be executed and delivered in connection with the
transactions contemplated by this Agreement to perform its obligations hereunder
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement by New Image and the consummation by
New Image of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate action of New Image, and no other
corporate proceedings on the part of New Image are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby and thereby.
This Agreement constitutes the valid and legally binding obligation of New Image
and is enforceable in accordance with its terms, except as such enforcement may
be limited by general equitable principles, or by bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors rights generally. New
Image does not need to give any notice to, make any filings with, or obtain any
authorization, consent or approval of any government or governmental agency or
other person in order for it to consummate the transactions contemplated by this
Agreement, other than filings that may be required or permitted under states
securities laws, the Securities Act and/or the Exchange Act resulting from the
issuance of the New Image Shares or securities in connection with the Private
Placement.
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Section 2.5No Conflict or
Violation. Neither the execution and delivery of this Agreement by New
Image, nor the consummation by New Image of the transactions contemplated hereby
will: (i) contravene, conflict with, or violate any provision of the New
Image Charter Documents; (ii) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency, court, administrative panel
or other tribunal to which New Image is subject, (iii) conflict with,
result in a breach of, constitute a default (or an event or condition which,
with notice or lapse of time or both, would constitute a default) under, result
in the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice under any agreement, contract, lease,
license, instrument or other arrangement to which New Image is a party or by
which it is bound, or to which any of its assets or properties are subject; or
(iv) result in or require the creation or imposition of any encumbrance of any
nature upon or with respect to any of New Image’s assets, including without
limitation the New Image Shares.
Section 2.6Agreements. Except as
disclosed on Schedule 2.6, New Image is not a party to or bound by any
contracts, including, but not limited to, any:
a. employment,
advisory or consulting contract;
b. plan
providing for employee benefits of any nature, including any severance
payments;
c. lease
with respect to any property or equipment;
d. contract,
agreement, understanding or commitment for any future expenditure in excess of
$5,000 in the aggregate;
e. contract
or commitment pursuant to which it has assumed, guaranteed, endorsed, or
otherwise become liable for any obligation of any other person, entity or
organization; or
f. agreement
with any person relating to the dividend, purchase or sale of securities, that
has not been settled by the delivery or payment of securities when due, and
which remains unsettled upon the date of this Agreement, except with respect to
the New Image Shares or the securities to be issued pursuant to the Securities
Purchase Agreement.
New Image
has provided to Car Charging and the Car Charging Shareholders, prior to the
date of this Agreement, true, correct and complete copies of each contract
(whether written or oral), including each amendment, supplement and modification
thereto (the “New Image
Contracts”). The Company shall satisfy all liabilities due
under the New Image Contracts as of the date of Closing. All such
liabilities shall be satisfied or released at or prior to
Closing. Any amounts accrued post-Closing shall be the sole
responsibility of Car Charging.
Section 2.7Litigation. There is
no action, suit, proceeding or investigation (“Action”) pending or, to the
knowledge of New Image, currently threatened against New Image or any of its
affiliates, that may affect the validity of this Agreement or the right of New
Image to enter into this Agreement or to consummate the transactions
contemplated hereby or thereby. There is no Action pending or, to the knowledge
of New Image, currently threatened against New Image or any of its affiliates,
before any
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court or
by or before any governmental body or any arbitration board or tribunal, nor is
there any judgment, decree, injunction or order of any court, governmental
department, commission, agency, instrumentality or arbitrator against New Image
or any of its affiliates. Neither New Image nor any of its affiliates is a party
or subject to the provisions of any order, writ, injunction, judgment or decree
of any court or government agency or instrumentality. There is no Action by New
Image or any of its affiliates relating to New Image currently pending or which
New Image or any of its affiliates intends to initiate.
Section 2.8Compliance with Laws.
New Image has been and is in compliance with, and has not received any notice of
any violation of any, applicable law, order, ordinance, regulation or rule of
any kind whatsoever, including without limitation the Securities Act, the
Exchange Act, the applicable rules and regulations of the SEC or the applicable
securities laws and rules and regulations of any state.
Section 2.9 Financial Statements; SEC
Filings.
a. New
Image’s financial statements (the “Financial Statements”)
contained in its periodic reports filed with the SEC have been prepared in
accordance with generally accepted accounting principles applicable in the
United States of America (“U.S.
GAAP”) applied on a consistent basis throughout the periods indicated,
except that those Financial Statements that are not audited do not contain all
footnotes required by U.S. GAAP. The Financial Statements fairly present the
financial condition and operating results of New Image as of the dates, and for
the periods, indicated therein, subject to normal year-end audit adjustments.
New Image has no material liabilities (contingent or otherwise). New Image is
not a guarantor or indemnitor of any indebtedness of any other person, entity or
organization. New Image maintains a standard system of accounting established
and administered in accordance with U.S. GAAP.
b. New
Image has timely made all filings with the SEC that it has been required to make
under the Securities Act and the Exchange Act (the “Public Reports”). Each of the
Public Reports has complied in all material respects with the applicable
provisions of the Securities Act, the Exchange Act, and the Sarbanes/Oxley Act
of 2002 (the “Sarbanes/Oxley
Act”) and/or regulations promulgated thereunder. None of the Public
Reports, as of their respective dates, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading. There is no event, fact or circumstance
that would cause any certification signed by any officer of New Image in
connection with any Public Report pursuant to the Sarbanes/Oxley Act to be
untrue, inaccurate or incorrect in any respect. There is no revocation order,
suspension order, injunction or other proceeding or law affecting the trading of
New Image’s Common Stock, it being acknowledged that none of New Image’s
securities are approved or listed for trading on any exchange or quotation
system.
Section 2.10Books, Financial Records and
Internal Controls. All the accounts, books, registers, ledgers, New Image
Board minutes and financial and other records of whatsoever kind of New Image
have been fully, properly and accurately kept and completed; there are no
material inaccuracies or discrepancies of any kind contained or reflected
therein; and they give and reflect a true and fair view of the financial,
contractual and legal position of New Image. New Image maintains a system of
internal accounting controls sufficient, in the judgment of New Image, to
provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate actions are taken
with respect to any differences.
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Section 2.11Employee Benefit
Plans. New Image does not have any “Employee Benefit Plan” as defined in
the U.S. Employee Retirement Income Security Act of 1974 or similar plans under
any applicable laws.
Section 2.12Tax Returns, Payments and
Elections. New Image has filed all Tax (as defined below) returns,
statements, reports, declarations and other forms and documents (including,
without limitation, estimated tax returns and reports and material information
returns and reports) (“Tax
Returns”) required pursuant to applicable law to be filed with any Tax
Authority (as defined below). All such Tax Returns are accurate, complete and
correct in all material respects, and New Image has timely paid all Taxes due
and adequate provisions have been and are reflected in New Image’s Financial
Statements for all current taxes and other charges to which New Image is subject
and which are not currently due and payable. None of New Image’s federal income
tax returns have been audited by the Internal Revenue Service. New Image has no
knowledge of any additional assessments, adjustments or contingent tax liability
(whether federal or state) of any nature whatsoever, whether pending or
threatened against the New Image for any period, nor of any basis for any such
assessment, adjustment or contingency. New Image has withheld or collected from
each payment made to each of its employees, if applicable, the amount of all
Taxes (including, but not limited to, United States income taxes and other
foreign taxes) required to be withheld or collected therefrom, and has paid the
same to the proper Tax Authority. For purposes of this Agreement, the following
terms have the following meanings: “Tax” (and, with correlative
meaning, “Taxes” and “Taxable”) means any and all taxes including, without
limitation, (x) any net income, alternative or add-on minimum tax, gross income,
gross receipts, sales, use, ad valorem, transfer, franchise, profits, value
added, net worth, license, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, environmental or windfall profit tax,
custom, duty or other tax, governmental fee or other like assessment or charge
of any kind whatsoever, together with any interest or any penalty, addition to
tax or additional amount imposed by any United States, local or foreign
governmental authority or regulatory body responsible for the imposition of any
such tax (domestic or foreign) (a “Tax Authority”), (y) any
liability for the payment of any amounts of the type described in (x) as a
result of being a member of an affiliated, consolidated, combined or unitary
group for any taxable period or as the result of being a transferee or successor
thereof, and (z) any liability for the payment of any amounts of the type
described in (x) or (y) as a result of any express or implied obligation to
indemnify any other person.
Section 2.13 No Debt Obligations.
Upon the Closing Date, New Image will have no debt, obligations or liabilities
of any kind whatsoever other than with respect to the transactions contemplated
hereby. New Image is not a guarantor of any indebtedness of any other person,
entity or corporation.
Section 2.14 No Broker
Fees. No brokers, finders or financial advisory fees or commissions
will be payable by or to New Image or any of their affiliates with respect to
the transactions contemplated by this Agreement.
Section 2.15No Disagreements with
Accountants and Lawyers. There are no disagreements of any kind presently
existing, or anticipated by New Image to arise, between New Image and any
accountants and/or lawyers formerly or presently engaged by New Image. New Image
is current with respect to fees owed to its accountants and
lawyers.
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Section 2.16 Disclosure. This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereby by or on behalf of New Image in connection with the
transactions contemplated by this Agreement do not contain any untrue statement
of a material fact or omit any material fact necessary in order to make the
statements contained herein and/or therein not misleading.
Section 2.17 Absence of Undisclosed
Liabilities. Since the date of the filing of its quarterly report on Form
10-Q for the quarter ended June 30, 2009, except as specifically disclosed in
the Public Reports: (A) there has been no event, occurrence or development that
has resulted in or could result in a Material Adverse Effect; (B) New Image has
not incurred any liabilities, obligations, claims or losses, contingent or
otherwise, including debt obligations, other than professional fees; (C) New
Image has not declared or made any dividend or distribution of cash or property
to its shareholders, purchased, redeemed or made any agreements to purchase or
redeem any shares of its capital stock, or issued any equity securities other
than with respect to transactions contemplated hereby; (D) New Image has not
made any loan, advance or capital contribution to or investment in any person or
entity; (E) New Image has not discharged or satisfied any lien or encumbrance or
paid any obligation or liability (absolute or contingent), other than current
liabilities paid in the ordinary course of business; (F) New Image has not
suffered any substantial losses or waived any rights of material value, whether
or not in the ordinary course of business, or suffered the loss of any material
amount of prospective business; and (G) except for the Share Exchange, New Image
has not entered into any other transaction other than in the ordinary course of
business, or entered into any other material transaction, whether or not in the
ordinary course of business.
Section 2.18No Integrated
Offering. New Image does not have any registration statement pending
before the Commission or currently under the Commission’s review and since the
Closing Date, except as contemplated under this Agreement, New Image has not
offered or sold any of its equity securities or debt securities convertible into
shares of Common Stock.
Section 2.19Employees.
a. New
Image has no employees.
b. Other
than Belen Flores, New Image does not have any officers or directors. No
director or officer of New Image is a party to, or is otherwise bound by, any
contract (including any confidentiality, non-competition or proprietary rights
agreement) with any other person that in any way adversely affects or will
materially affect (a) the performance of his duties as a director or officer of
New Image or (b) the ability of New Image to conduct its business.
Section 2.20 No Undisclosed Events or
Circumstances. No event or circumstance has occurred or exists with
respect to New Image or its respective businesses, properties, prospects,
operations or financial condition, which, under applicable law, rule or
regulation, requires public disclosure or announcement by New Image but which
has not been so publicly announced or disclosed. New Image has not provided to
Car Charging, or the Car Charging Shareholders, any material non-public
information or other information which, according to applicable law, rule or
regulation, was required to have been disclosed publicly by New Image but which
has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement and/or the Private Placement.
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Section 2.21 Disclosure. This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereof by or on behalf of New Image or any of the New Image
Controlling Stockholders in connection with the transactions contemplated by
this Agreement, when taken together, do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein and/or therein not misleading.
Section 2.22 No Assets or Real
Property. Except as set forth on the most recent Financial Statements,
New Image does not have any assets of any kind. New Image does not
own or lease any real property.
Section 2.23Interested Party
Transactions. Except as disclosed on Schedule 2.23 and in
Commission filings, no officer, director or shareholder of New Image or any
affiliate or “associate” (as such term is defined in Rule 405 of the Commission
under the Securities Act) of any such person or entity, has or has had, either
directly or indirectly, (a) an interest in any person or entity which (i)
furnishes or sells services or products which are furnished or sold or are
proposed to be furnished or sold by New Image, or (ii) purchases from or sells
or furnishes to, or proposes to purchase from, sell to or furnish New Image any
goods or services; or (b) a beneficial interest in any contract or agreement to
which New Image is a party or by which it may be bound or affected.
Section 2.24Intellectual
Property. Except as disclosed on Schedule 2.24 and in Commission
filings, New Image does not own, use or license any intellectual property in its
business as presently conducted.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF CAR CHARGING
Car
Charging represents, warrants and agrees that all of the statements in the
following subsections of this Article III, pertaining to Car Charging, are true
and complete as of the date hereof.
Section 3.1 Incorporation.
Car
Charging is a company duly incorporated, validly existing, and in good standing
under the laws of Delaware and has the corporate power and is duly authorized
under all applicable laws, regulations, ordinances, and orders of public
authorities to carry on its business in all material respects as it is now being
conducted. The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not, violate any
provision of Car Charging’s Articles of
Organization or bylaws. Car Charging has taken all actions
required by law, its Articles of Organization or
bylaws, or otherwise to authorize the execution and delivery of this
Agreement. Car Charging has full power, authority, and legal capacity
and has taken all action required by law, its Articles of Organization or bylaws, and otherwise
to consummate the transactions herein contemplated.
Section 3.2 Authorized
Shares. The
number of shares which Car Charging is authorized to issue consists of shares of
Common Stock, consisting of 10,000 shares of common stock and 0 shares of
preferred stock, par value of $0.0001 per share. There are 1,000
shares of common stock issued and outstanding. The issued and
outstanding shares are validly issued, fully paid, and non-assessable and not
issued in violation of the preemptive or other rights of any
person.
Section 3.3 Subsidiaries and Predecessor
Corporations. Car
Charging has the following wholly owned subsidiaries: (i) eCharging Stations,
LLC, a Florida limited liability company; and (ii) Car Charging Holdings, LLC, a
Florida limited liability company. Car Charging does not own,
beneficially or of record, any shares of any other corporations.
8
Section 3.4 Financial
Statements.
Car
Charging has kept all books and records since inception and such financial
statements have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. The balance
sheets are true and accurate and present fairly as of their respective dates the
financial condition of Car Charging. As of the date of such balance
sheets, except as and to the extent reflected or reserved against therein, Car
Charging had no liabilities or obligations (absolute or contingent) which should
be reflected in the balance sheets or the notes thereto prepared in accordance
with generally accepted accounting principles, and all assets reflected therein
are properly reported and present fairly the value of the assets of Car
Charging, in accordance with generally accepted accounting principles. The
statements of operations, stockholders’ equity and cash flows reflect fairly the
information required to be set forth therein by generally accepted accounting
principles.
Car
Charging has duly and punctually paid all Governmental fees and taxation which
it has become liable to pay and has duly allowed for all taxation reasonably
foreseeable and is under no liability to pay any penalty or interest in
connection with any claim for governmental fees or taxation and Car Charging has
made any and all proper declarations and returns for taxation purposes and all
information contained in such declarations and returns is true and complete and
full provision or reserves have been made in its financial statements for all
Governmental fees and taxation.
The books
and records, financial and otherwise, of Car Charging are, in all material
aspects, complete and correct and have been maintained in accordance with good
business and accounting practices.
All of
Car Charging’s assets are reflected on its financial statements, and Car
Charging has no material liabilities, direct or indirect, matured or unmatured,
contingent or otherwise, in an amount greater than $100,000.
Section 3.5 Information. The
information concerning Car Charging set forth in this Agreement is complete and
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not
misleading.
Section 3.6 Absence of Certain Changes
or Events. Since
September 30, 2009, (a) there has not been any material adverse change in the
business, operations, properties, assets, or condition (financial or otherwise)
of Car Charging; and (b) Car Charging has not (i) declared or made, or agreed to
declare or make, any payment of dividends or distributions of any assets of any
kind whatsoever to stockholders or purchased or redeemed, or agreed to purchase
or redeem, any of its shares; (ii) made any material change in its method of
management, operation or accounting, (iii) entered into any other material
transaction other than sales in the ordinary course of its business; or (iv)
made any increase in or adoption of any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors, or
employees; and
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Section 3.7 Litigation and
Proceedings. There
are no actions, suits, proceedings, or investigations pending or, to the
knowledge of Car Charging after reasonable investigation, threatened by or
against Car Charging or affecting Car Charging or its properties, at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any
kind. Car Charging does not have any knowledge of any material
default on its part with respect to any judgment, order, injunction, decree,
award, rule, or regulation of any court, arbitrator, or governmental agency or
instrumentality or of any circumstances
Section 3.8 No Conflict With Other
Instruments. The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, constitute a default under, or terminate, accelerate or modify the
terms of any indenture, mortgage, deed of trust, or other material agreement, or
instrument to which Car Charging is a party or to which any of its assets,
properties or operations are subject.
Section 3.9 Compliance With Laws and
Regulations. To the
best of its knowledge, Car Charging has complied with all applicable statutes
and regulations of any federal, state, or other governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or condition of
Car Charging or except to the extent that noncompliance would not result in the
occurrence of any material liability for Car Charging. This
compliance includes, but is not limited to, the filing of all reports to date
with federal and state securities authorities.
Section 3.10 Approval of
Agreement. The
Board of Directors of Car Charging has authorized the execution and delivery of
this Agreement by Car Charging and has approved this Agreement and the
transactions contemplated hereby.
Section 3.11 Valid
Obligation. This
Agreement and all agreements and other documents executed by Car Charging in
connection herewith constitute the valid and binding obligation of Car Charging,
enforceable in accordance with its or their terms, except as may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and subject to the qualification that
the availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF CAR CHARGING SHAREHOLDERS
The Car
Charging Shareholders hereby represents and warrants to New Image:
Section 4.1Authority. The Car
Charging Shareholders have the right, power, authority and capacity to execute
and deliver this Agreement to which the Car Charging Shareholders is a party, to
consummate the transactions contemplated by this Agreement to which the Car
Charging Shareholders is a party, and to perform the Car Charging Shareholders’
obligations under this Agreement to which the Car Charging Shareholders is a
party. This Agreement has been duly and validly authorized and approved,
executed and delivered by the Car Charging Shareholders. Assuming this Agreement
has been duly and validly authorized, executed and delivered by the parties
thereto other than the Car Charging Shareholders, this Agreement is duly
authorized, executed and delivered by the Car Charging Shareholders and
constitutes the legal, valid and binding obligation of the Car Charging
Shareholders, enforceable against the Car Charging Shareholders in accordance
with their respective terms, except as such enforcement is limited by general
equitable principles, or by bankruptcy, insolvency and other similar Laws
affecting the enforcement of creditors rights generally.
10
Section 4.2No Conflict. Neither
the execution or delivery by the Car Charging Shareholders of this Agreement to
which the Car Charging Shareholders is a party nor the consummation or
performance by the Car Charging Shareholders of the transactions contemplated
hereby or thereby will, directly or indirectly, (a) contravene, conflict
with, or result in a violation of any provision of the organizational documents
of the Car Charging Shareholders (if the Car Charging Shareholders is not a
natural person); (b) contravene, conflict with, constitute a default (or an
event or condition which, with notice or lapse of time or both, would constitute
a default) under, or result in the termination or acceleration of, any agreement
or instrument to which the Car Charging Shareholders is a party or by which the
properties or assets of the Car Charging Shareholders are bound; or
(c) contravene, conflict with, or result in a violation of, any Law or
Order to which the Car Charging Shareholders, or any of the properties or assets
of the Car Charging Shareholders, may be subject.
Section 4.3Litigation. There is
no pending Action against the Car Charging Shareholders that involves the Car
Charging Shares or that challenges, or may have the effect of preventing,
delaying or making illegal, or otherwise interfering with, any of the
transactions contemplated by this Agreement or the business of Car Charging and,
to the knowledge of the Car Charging Shareholders, no such Action has been
threatened, and no event or circumstance exists that is reasonably likely to
give rise to or serve as a basis for the commencement of any such
Action.
Section 4.4Acknowledgment. The
Car Charging Shareholders understands and agrees that the New Image Shares to be
issued pursuant to this Agreement have not been registered under the Securities
Act or the securities laws of any state of the U.S. and that the issuance of the
New Image Shares is being effected in reliance upon an exemption from
registration afforded either under Section 4(2) of the Securities Act for
transactions by an issuer not involving a public offering or Regulation D
promulgated thereunder or Regulation S for offers and sales of securities
outside the U.S.
Section 4.5Stock Legends. The
Car Charging Shareholders hereby agrees with New Image as follows:
a. Securities
Act Legend Accredited Investors. The certificates evidencing the New Image
Shares issued to the Car Charging Shareholders will bear the following
legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN
AVAILABLE
11
EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, OR (3) IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S
PROMULGATED UNDER THE SECURITIES ACT, AND BASED ON AN OPINION OF COUNSEL, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THE
PROVISIONS OF REGULATION S HAVE BEEN SATISFIED.
b. Other Legends. The
certificates representing such New Image Shares, and each certificate issued in
transfer thereof, will also bear any other legend required under any applicable
law, including, without limitation, any U.S. state corporate and state
securities law, or contract.
c. Opinion. The Car
Charging Shareholders shall not transfer any or all of the New Image Shares
pursuant to Rule 144, under the Securities Act, Regulation S or absent
an effective registration statement under the Securities Act and applicable
state securities law covering the disposition of the New Image Shares, without
first providing New Image with an opinion of counsel (which counsel and opinion
are reasonably satisfactory to the New Image) to the effect that such transfer
will be made in compliance with Rule 144, under the Securities Act,
Regulation S or will be exempt from the registration and the prospectus
delivery requirements of the Securities Act and the registration or
qualification requirements of any applicable U.S. state securities
laws.
Section 4.6 Ownership of Shares.
The Car Charging Shareholders is both the record and beneficial owner of the Car
Charging Shares. The Car Charging Shareholders is not the record or beneficial
owner of any other shares of Car Charging. The Car Charging Shareholders has and
shall transfer at the Closing, good and marketable title to the Car Charging
Shares, free and clear of all liens, claims, charges, encumbrances, pledges,
mortgages, security interests, options, rights to acquire, proxies, voting
trusts or similar agreements, restrictions on transfer or adverse claims of any
nature whatsoever, excepting only restrictions on future transfers imposed by
applicable law.
Section 4.7Pre-emptive
Rights. Subject to Schedule
4.7, at Closing, no Car Charging Shareholders has any
pre-emptive rights or any other rights to acquire any shares of Car Charging
that have not been waived or exercised.
Section 4.8 Accredited
Investor. All Car Charging Shareholders receiving shares of
New Image pursuant to this Agreement are “accredited investors” within the
meaning of Rule 501(a) of Regulation D promulgated under the Securities
Act.
ARTICLE
V
CONDITIONS
TO OBLIGATIONS OF CAR CHARGING
AND
THE CAR CHARGING SHAREHOLDERS
The
obligations of Car Charging and the Car Charging Shareholders to consummate the
transactions contemplated by this Agreement are subject to the fulfillment, at
or before the Closing Date, of the following conditions, any one or more of
which may be waived by Car Charging and the Car Charging Shareholders at their
sole discretion:
12
Section 5.1Representations and
Warranties of New Image. All representations and warranties made by New
Image in this Agreement shall be true and correct in all material respects on
and as of the Closing Date, except insofar as the representations and warranties
relate expressly and solely to a particular date or period, in which case,
subject to the limitations applicable to the particular date or period, they
will be true and correct in all material respects on and as of the Closing Date
with respect to such date or period.
Section 5.2Agreements and
Covenants. New Image shall have performed and complied in all material
respects with all agreements and covenants required by this Agreement to be
performed or complied with on or prior to the Closing Date.
Section 5.3Consents and
Approvals. All consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement shall be in full force and effect on the
Closing Date.
Section 5.4No Violation of
Orders. No preliminary or permanent injunction or other order issued by
any court or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects the
assets, properties, operations, prospects, net income or financial condition of
New Image shall be in effect; and no action or proceeding before any court or
governmental or regulatory authority, domestic or foreign, shall have been
instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
Section 5.5Other Closing
Documents. Car Charging shall have received such certificates,
instruments and documents in confirmation of the representations and warranties
of New Image, New Image’s performance of its obligations hereunder, and/or in
furtherance of the transactions contemplated by this Agreement as the Car
Charging Shareholders and/or their respective counsel may reasonably
request.
Section 5.6Documents. New Image
must have caused the following documents to be delivered to Car Charging and the
Car Charging Shareholder:
a. share
certificates evidencing both the common and preferred New Image Shares
registered in the name of the Car Charging Shareholders;
b. a
Secretary’s Certificate, dated the Closing Date, certifying attached copies of
(A) the New Image Charter Documents, (B) the resolutions of the New
Image Board approving this Agreement and the transactions contemplated hereby
and thereby; and (C) the incumbency of each authorized officer of New Image
signing this Agreement to which New Image is a party;
c. an
Officer’s Certificate, dated the Closing Date, certifying as to
Sections 5.1, 5.2, 5.3, 5.4, 5.7, and 5.8.
d. a
Certificate of Good Standing of New Image, dated as of a date not more than five
business days prior to the Closing Date;
13
e. this
Agreement is duly executed;
f. the
resignation of Belen Flores as officer of New Image as of the Closing
Date;
g. the
amendment of the Articles of Incorporation to change its name to Car Charging
Group, Inc. and to authorize for issuance 20,000,000 preferred shares;
and
h. such
other documents as Car Charging may reasonably request for the purpose of (A)
evidencing the accuracy of any of the representations and warranties of New
Image, (B) evidencing the performance of, or compliance by New Image with any
covenant or obligation required to be performed or complied with by New Image,
(C) evidencing the satisfaction of any condition referred to in this Article V,
or (D) otherwise facilitating the consummation or performance of any of the
transactions contemplated by this Agreement.
Section 5.7 Cancellation of
Shares. The 277,200,000
shares of New Image Common Stock owned by Belen Flores shall be irrevocably
cancelled immediately following the issuance of the shares of Common Stock to
the Car Charging Shareholders. Evidence of such cancellation shall be
delivered to Car Charging.
Section 5.8 No Material Adverse
Effect. There shall not
have been any event, occurrence or development that has resulted in or could
result in a Material Adverse Effect on or with respect to New
Image.
ARTICLE
VI
CONDITIONS
TO OBLIGATIONS OF NEW IMAGE
The
obligations of New Image to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or before the Closing Date, of the
following conditions, any one or more of which may be waived by New Image in its
sole discretion:
Section 6.1 Representations and
Warranties of Car Charging and the Car Charging Shareholders. All
representations and warranties made by Car Charging and the Car Charging
Shareholders on behalf of themselves individually in this Agreement shall be
true and correct on and as of the Closing Date except insofar as the
representation and warranties relate expressly and solely to a particular date
or period, in which case, subject to the limitations applicable to the
particular date or period, they will be true and correct in all material
respects on and as of the Closing Date with respect to such date or
period.
Section 6.2 Agreements and
Covenants. Car Charging and the Car Charging Shareholders shall have
performed and complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by each of
them on or prior to the Closing Date.
Section 6.3Consents and
Approvals. All consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement, shall have been duly obtained and shall be in
full force and effect on the Closing Date.
14
Section 6.4No Violation of
Orders. No preliminary or permanent injunction or other order issued by
any court or other governmental or regulatory authority, domestic or foreign,
nor any statute, rule, regulation, decree or executive order promulgated or
enacted by any government or governmental or regulatory authority, domestic or
foreign, that declares this Agreement invalid or unenforceable in any respect or
which prevents the consummation of the transactions contemplated hereby, or
which materially and adversely affects the assets, properties, operations,
prospects, net income or financial condition of Car Charging shall be in effect;
and no action or proceeding before any court or government or regulatory
authority, domestic or foreign, shall have been instituted or threatened by any
government or governmental or regulatory authority, domestic or foreign, or by
any other person, or entity which seeks to prevent or delay the consummation of
the transactions contemplated by this Agreement or which challenges the validity
or enforceability of this Agreement.
Section 6.5Other Closing
Documents. New Image shall have received such certificates, instruments
and documents in confirmation of the representations and warranties of Car
Charging and the Car Charging Shareholders, the performance of Car Charging and
the Car Charging Shareholders’ respective obligations hereunder and/or in
furtherance of the transactions contemplated by this Agreement as New Image or
its counsel may reasonably request.
Section 6.6Documents. Car
Charging and the Car Charging Shareholders must deliver to New Image at the
Closing:
a. share
certificates evidencing the number of Car Charging Shares, along with executed
share transfer forms transferring such Car Charging Shares to New
Image;
b. this
Agreement to which the Car Charging and the Car Charging Shareholders is a
party, duly executed;
c. such
other documents as New Image may reasonably request for the purpose of (A)
evidencing the accuracy of any of the representations and warranties of the Car
Charging and the Car Charging Shareholders , (B) evidencing the performance of,
or compliance by Car Charging and the Car Charging Shareholders with, any
covenant or obligation required to be performed or complied with by Car Charging
and the Car Charging Shareholders, as the case may be, (C) evidencing the
satisfaction of any condition referred to in this Article VI, or (D) otherwise
facilitating the consummation or performance of any of the transactions
contemplated by this Agreement.
Section 6.7No Claim Regarding Stock
Ownership or Consideration. There must not have been made or threatened
by any Person, any claim asserting that such Person (a) is the holder of, or has
the right to acquire or to obtain beneficial ownership of the Car Charging
Shares, or any other stock, voting, equity, or ownership interest in, Car
Charging, or (b) is entitled to all or any portion of the New Image
Shares.
ARTICLE
VII
POST-CLOSING
AGREEMENTS
Section 7.1 SEC Documents. From
and after the Closing Date, in the event the SEC notifies New Image of its
intent to review any Public Report filed prior to the Closing Date or New Image
receives any oral or written comments from the SEC with respect to any Public
Report filed prior to the Closing Date, New Image shall promptly notify the New
Image Controlling Stockholders and the New Image Controlling Stockholders shall
reasonably cooperate with New Image in responding to any such oral or written
comments.
15
ARTICLE
VIII
INDEMNIFICATION
Section 8.1 Survival of
Provisions. The respective representations, warranties, covenants and
agreements of each of the parties to this Agreement (except covenants and
agreements which are expressly required to be performed and are performed in
full on or before the Closing Date) shall expire on the first day of the
one-year anniversary of the Closing Date (the “Survival Period”). The right
to indemnification, payment of damages or other remedy based on such
representations, warranties, covenants, and obligations will not be affected by
any investigation conducted with respect to, or any knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution
and delivery of this Agreement, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant, or obligation. The
waiver of any condition based on the accuracy of any representation or warranty,
or on the performance of or compliance with any covenant or obligation, will not
affect the right to indemnification, payment of damages, or other remedy based
on such representations, warranties, covenants, and obligations.
Section 8.2Indemnification.
a. Indemnification Obligations
in favor of the Controlling Stockholders of New Image. From and after the
Closing Date until the expiration of the Survival Period, Car Charging shall
reimburse and hold harmless the New Image Controlling Stockholders (each such
person and his heirs, executors, administrators, agents, successors and assigns
is referred to herein as a “New
Image Indemnified Party”) against and in respect of any and all damages,
losses, settlement payments, in respect of deficiencies, liabilities, costs,
expenses and claims suffered, sustained, incurred or required to be paid by any
New Image Indemnified Party, and any and all actions, suits, claims, or legal,
administrative, arbitration, governmental or other procedures or investigation
against any New Image Indemnified Party, which arises or results from a
third-party claim brought against a New Image Indemnified Party to the extent
based on a breach of the representations and warranties with respect to the
business, operations or assets of Car Charging. All claims of New
Image pursuant to this Section 8.2 shall be brought by the New Image Controlling
Stockholders on behalf of New Image and those Persons who were stockholders of
New Image Company immediately prior to the Closing Date. In no event
shall any such indemnification payments exceed $100,000 in the aggregate from
Car Charging. No claim for indemnification may be brought under
this Section 8.2(a) unless all claims for indemnification, in the aggregate,
total more than $10,000.
b. Indemnification in favor of
Car Charging and the Car Charging Shareholders. From and after the
Closing Date until the expiration of the Survival Period, the New Image
Controlling Stockholders will, severally and not jointly, indemnify and hold
harmless Car Charging, the Car Charging Shareholders, and their respective
officers, directors, agents, attorneys and employees, and each person, if any,
who controls or may “control” (within the meaning of the Securities Act) any of
the forgoing persons or entities (hereinafter referred to individually as a
“Car Charging Indemnified
Person”) from and against any and all losses, costs, damages, liabilities
and expenses arising from claims, demands, actions, causes of action, including,
without limitation, legal fees, (collectively, “Damages”) arising out of any
16
(i) any
breach of representation or warranty made by New Image or the New Image
Controlling Stockholders in this Agreement, and in any certificate delivered by
New Image or the New Image Controlling Stockholders pursuant to this Agreement,
(ii) any breach by New Image or the New Image Controlling Stockholders of
any covenant, obligation or other agreement made by New Image or the New Image
Controlling Stockholders in this Agreement, and (iii) a third-party claim
based on any acts or omissions by New Image or the New Image Controlling
Stockholders. In no event shall any such indemnification payments exceed
$100,000 in the aggregate from all New Image Controlling
Stockholders. No claim for indemnification may be brought under this
Section 8.2(b) unless all claims for indemnification, in the aggregate, total
more than $10,000.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section 9.1Publicity. No party
shall cause the publication of any press release or other announcement with
respect to this Agreement or the transactions contemplated hereby without the
consent of the other parties, unless a press release or announcement is required
by law. If any such announcement or other disclosure is required by law, the
disclosing party agrees to give the non-disclosing parties prior notice and an
opportunity to comment on the proposed disclosure.
Section 9.2Successors and
Assigns. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors and assigns; provided,
however, that no party shall assign or delegate any of the obligations created
under this Agreement without the prior written consent of the other
parties.
Section 9.3Fees and Expenses.
Except as otherwise expressly provided in this Agreement, all legal and other
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs or expenses.
Section 9.4Notices. All notices
and other communications given or made pursuant hereto shall be in writing and
shall be deemed to have been given or made if in writing and delivered
personally or sent by registered or certified mail (postage prepaid, return
receipt requested)or facsimile to the parties at the following
addresses:
If to Car
Charging or the Car Charging Shareholders, to:
Car
Charging, Inc.
1691
Michigan Avenue, Suite 425
Miami
Beach, Florida 33139
Attn:
Andy Kinard, President
With a
copy to (which copy shall not constitute notice):
Michael
I. Bernstein, P.A.
Attn:
Michael I. Bernstein, Esq.
1688
Meridian Avenue, Suite #418
Miami
Beach, Florida 33139
17
If to New
Image or the New Image Controlling Stockholders, to:
2019
Delaware Avenue
Santa
Monica, California 90404
With a
copy to (which copy shall not constitute notice):
Anslow
& Jaclin, LLP
Attn:
Eric M. Stein, Esq.
195 Route
9 South, Suite 204
Manalapan,
New Jersey 07726
or to
such other persons or at such other addresses as shall be furnished by any party
by like notice to the others, and such notice or communication shall be deemed
to have been given or made as of the date so delivered or mailed. No change in
any of such addresses shall be effective insofar as notices under this Section
9.4 are concerned unless such changed address is located in the United States of
America or Israel and notice of such change shall have been given to such other
party hereto as provided in this Section 9.4.
Section 9.5 Entire Agreement.
This Agreement, together with the exhibits hereto, represents the entire
agreement and understanding of the parties with reference to the transactions
set forth herein and no representations or warranties have been made in
connection with this Agreement other than those expressly set forth herein or in
the exhibits, certificates and other documents delivered in accordance herewith.
This Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating to
the subject matter of this Agreement and all prior drafts of this Agreement, all
of which are merged into this Agreement. No prior drafts of this Agreement and
no words or phrases from any such prior drafts shall be admissible into evidence
in any action or suit involving this Agreement.
Section 9.6Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible so as to be
valid and enforceable.
Section 9.7Titles and Headings.
The Article and Section headings contained in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
Section 9.8Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall be considered one and the
same agreement.
Section 9.9Convenience of Forum;
Consent to Jurisdiction. The parties to this Agreement, acting for
themselves and for their respective successors and assigns, without regard to
domicile, citizenship or residence, hereby expressly and irrevocably elect as
the sole judicial forum for the adjudication of any matters arising under or in
connection with this Agreement, and consent and subject themselves to the
jurisdiction of, the courts of the State of Florida, and/or the United States
District Court for Florida, in respect of any matter arising under this
Agreement. Service of process, notices and demands of such courts may be made
upon any party to this Agreement by personal service at any place where it may
be found or giving notice to such party as provided in Section 9.4.
18
Section 9.10 Enforcement of the
Agreement. The parties hereto agree that irreparable damage would occur
if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereto, this being in addition to any other remedy to which they are entitled at
law or in equity.
Section 9.11Governing Law. This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the State of Florida without giving effect to the choice of law
provisions thereof.
Section 9.12Amendments and
Waivers. Except as otherwise provided herein, no amendment or waiver of
any provision of this Agreement shall be valid unless the same shall be in
writing and signed by all of the parties hereto. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any such prior or subsequent
occurrence.
[REST OF
PAGE DELIBERATELY LEFT BLANK]
19
[SIGNATURE
PAGE TO SHARE EXCHANGE AGREEMENT]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
|
NEW
IMAGE CONCEPTS, INC.
|
|
|
By:
|
|
|
Name:
Belen Flores
|
|
|
Title:
Chief Executive Officer
|
|
|
CAR
CHARGING, INC.
|
|
|
By:
|
|
|
Name:
Andy Kinard
|
|
|
Title:
President
|
|
|
NEW
IMAGE’S CONTROLLING STOCKHOLDERS
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
[SIGNATURE
PAGE OF CAR CHARGING SHARHOLDERS
TO SHARE
EXCHANGE AGREEMENT]
|
CAR
CHARGING SHAREHOLDERS
|
|
|
By:
|
|
|
Gravity
Capital Partners, Ltd.
|
|
|
By:
|
|
|
Herb
Hersey
|
|
|
By:
|
|
|
Jonathan
Honig
|
|
SCHEDULE
I
|
CAR
CHARGING SHAREHOLDERS
|
||
|
Shareholder Name
|
Number of Shares
|
Percentage of Ownership
|
|
Gravity
Capital Partners, Ltd.
|
680
|
60%
|
|
Herb
Hersey
|
280
|
27%
|
|
Jonathon
Honig
|
120
|
13%
|
SCHEDULE
II
|
MAJORITY
SHAREHOLDER OF NEW IMAGE CONCEPTS, INC.
|
||
|
Shareholder Name
|
Number of Shares
|
Percentage of Ownership
|
|
Belen
Flores
|
277,200,000
|
93.35%
|
SCHEDULE
III
|
CAR
CHARGING GROUP, INC. COMMON STOCK BREAKDOWN
|
||
|
Shareholder Name
|
Number of Shares
|
Percentage of Ownership
|
|
Gravity
Capital Partners, Ltd.
|
30,000,000
|
60%
|
|
Herb
Hersey
|
14,000,000
|
28%
|
|
Jonathan
Honig
|
6,000,000
|
12%
|
|
Total
Shares Issued
Pursuant
to this Agreement
|
50,000,000
|
100%
|
SCHEDULE
IV
|
CAR
CHARGING GROUP, INC. PREFERRED STOCK BREAKDOWN
|
||
|
Shareholder Name
|
Number of Shares
|
Percentage of Ownership
|
|
Gravity
Capital Partners, Ltd.
|
6,000,000
|
60%
|
|
Herb
Hersey
|
2,800,000
|
28%
|
|
Jonathan
Honig
|
1,200,000
|
12%
|
|
Total
Series A Preferred Shares Issued Pursuant to this
Agreement
|
10,000,000
|
100%
|