exv10w3






EXHIBIT 10.3




 





SHARE PURCHASE AGREEMENT




Dated as of March 24, 2010




by and among




ION GEOPHYSICAL CORPORATION,




INOVA GEOPHYSICAL EQUIPMENT LIMITED,




and




BGP INC., CHINA NATIONAL PETROLEUM CORPORATION




Document No. 80668



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Specific Definitions
	 	 	1	 
	Section 1.2 Other Terms
	 	 	16	 
	Section 1.3 Other Definitional Provisions
	 	 	16	 
	 
	 	 	 	 
	ARTICLE II RESTRUCTURING, SALE AND PURCHASE
	 	 	16	 
	 
	 	 	 	 
	Section 2.1 Completion of Restructuring
	 	 	16	 
	Section 2.2 Sale and Purchase
	 	 	17	 
	Section 2.3 Closing; Delivery and Payment
	 	 	17	 
	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PARTIES
	 	 	21	 
	 
	 	 	 	 
	Section 3.1 Structure
	 	 	21	 
	Section 3.2 Organization and Qualification
	 	 	21	 
	Section 3.3 Corporate Power and Binding Effect
	 	 	21	 
	Section 3.4 Consents and Approvals
	 	 	22	 
	Section 3.5 Non-Contravention
	 	 	22	 
	Section 3.6 Intentionally Omitted
	 	 	22	 
	Section 3.7 Assets and Sufficiency
	 	 	22	 
	Section 3.8 Financial Statements
	 	 	23	 
	Section 3.9 Liabilities
	 	 	24	 
	Section 3.10 Inventories; Receivables
	 	 	24	 
	Section 3.11 Conduct in the Ordinary Course; Absence of Certain Changes, Events and Conditions
	 	 	24	 
	Section 3.12 Litigation and Claims
	 	 	26	 
	Section 3.13 Compliance with Laws
	 	 	27	 
	Section 3.14 Contracts
	 	 	27	 
	Section 3.15 Customers
	 	 	28	 
	Section 3.16 Suppliers
	 	 	29	 
	Section 3.17 Tax Matters
	 	 	29	 
	Section 3.18 Employee Matters
	 	 	30	 
	Section 3.19 Employees
	 	 	33	 
	Section 3.20 Certain Interests
	 	 	33	 
	Section 3.21 Intellectual Property
	 	 	34	 
	Section 3.22 Insurance
	 	 	35	 
	Section 3.23 Real Property
	 	 	36	 
	Section 3.24 Tangible Personal Property
	 	 	36	 
	Section 3.25 Environmental Matters
	 	 	37	 
	Section 3.26 Product Warranties and Liabilities
	 	 	37	 
	Section 3.27 Brokers; Finders and Fees
	 	 	37	 
	Section 3.28 Certain Business Practices
	 	 	37	 
	Section 3.29 Full Disclosure
	 	 	38	 
	Section 3.30 Liability for the Company’s Breach prior to the Closing
	 	 	38	 
	Section 3.31 Liability for Purchaser Holdco’s breach prior to the Closing
	 	 	38	 
	 
	 	 	 	 
	ARTICLE IV ADDITIONAL REPRESENTATIONS AND WARRANTIES
	 	 	38	 
	 
	 	 	 	 
	Section 4.1 Additional Seller and Company Representations
	 	 	38	 
	Section 4.2 Additional Purchaser Representations
	 	 	40	 






-i-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE V COVENANTS
	 	 	41	 
	 
	 	 	 	 
	Section 5.1 Reasonable Best Efforts
	 	 	41	 
	Section 5.2 Required Approvals and Corporate Actions
	 	 	41	 
	Section 5.3 Notice
	 	 	42	 
	Section 5.4 Publicity
	 	 	42	 
	Section 5.5 Expenses
	 	 	42	 
	Section 5.6 Intercompany Liabilities
	 	 	43	 
	Section 5.7 Pre-Closing Restructuring and Closing Asset Transfer
	 	 	43	 
	Section 5.8 Confidentiality
	 	 	49	 
	Section 5.9 Conduct of Business
	 	 	49	 
	Section 5.10 Access and Information
	 	 	50	 
	Section 5.11 No Solicitation or Negotiation
	 	 	50	 
	Section 5.12 Customers
	 	 	51	 
	Section 5.13 Transaction Documents
	 	 	51	 
	Section 5.14 Tax Matters
	 	 	51	 
	Section 5.15 Additional Covenants
	 	 	52	 
	Section 5.16 Further Assurances
	 	 	53	 
	Section 5.17 Breach by the Company Group
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VI CONDITIONS TO CLOSING
	 	 	53	 
	 
	 	 	 	 
	Section 6.1 Conditions to the Obligations of the Purchaser and the Seller
	 	 	54	 
	Section 6.2 Conditions to the Purchaser’s Obligations at the Closing
	 	 	54	 
	Section 6.3 Conditions to Obligations of the Seller
	 	 	55	 
	 
	 	 	 	 
	ARTICLE VII TERMINATION
	 	 	55	 
	 
	 	 	 	 
	Section 7.1 Termination
	 	 	55	 
	Section 7.2 Effect of Termination
	 	 	56	 
	 
	 	 	 	 
	ARTICLE VIII SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES
	 	 	57	 
	 
	 	 	 	 
	Section 8.1 Survival
	 	 	57	 
	Section 8.2 Indemnification
	 	 	57	 
	Section 8.3 Third-Party Claim Indemnification Procedures
	 	 	59	 
	Section 8.4 No Consequential Damages
	 	 	60	 
	Section 8.5 Adjustments to Losses
	 	 	60	 
	Section 8.6 Payments
	 	 	61	 
	Section 8.7 Mitigation
	 	 	61	 
	Section 8.8 Tax Treatment of Indemnity Payments
	 	 	61	 
	Section 8.9 Seller’s and Purchaser’s Tax Obligations
	 	 	61	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS
	 	 	61	 
	 
	 	 	 	 
	Section 9.1 Amendment and Waiver
	 	 	61	 
	Section 9.2 No Waiver
	 	 	62	 
	Section 9.3 Assignment
	 	 	62	 
	Section 9.4 Parties in Interest; No Third Party Beneficiaries
	 	 	62	 
	Section 9.5 Entire Agreement
	 	 	62	 
	Section 9.6 Schedules
	 	 	62	 
	Section 9.7 Counterparts
	 	 	62	 
	Section 9.8 Section Headings
	 	 	62	 
	Section 9.9 Notices
	 	 	62	 
	Section 9.10 Dispute Resolution
	 	 	63	 
	Section 9.11 Specific Performance
	 	 	64	 
	Section 9.12 GOVERNING LAW
	 	 	64	 






-ii-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 9.13 Language
	 	 	64	 
	Section 9.14 Severability
	 	 	64	 
	Section 9.15 No Strict Construction
	 	 	64	 






-iii-









 






	 	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit A

	 	Form of Amended and Restated Articles of Association
	Exhibit B-1

	 	Form of Joint Venture Collaboration Agreement
	Exhibit B-2

	 	Form of Seller and Purchaser Collaboration Agreement
	Exhibit C

	 	Form of Joint Venture Agreement
	Exhibit D

	 	Form of Key Business Employee Agreement
	Exhibit E

	 	Form of Purchaser Assignment, Transfer and Assumption Agreement
	Exhibit F

	 	Form of Purchaser Intellectual Property Agreement
	Exhibit G

	 	Form of Seller Group Assignment, Transfer and Assumption Agreements
	Exhibit H

	 	Form of Seller Group Intellectual Property Agreements
	Exhibit I

	 	Form of Purchaser Employee Secondment Agreement
	Exhibit 2.1

	 	Plan of Reorganization
	Exhibit 2.3

	 	Closing Process Memorandum
	Exhibit 2.3(d)(i)(1)

	 	Form of Cross Receipt by the Seller, the Company and the Purchaser
	Exhibit 3.7(a)

	 	List of Business Assets
	Exhibit 5.7(a)

	 	Organizational Structure of the Company Group after the Restructuring
	 
	 	 
	DISCLOSURE SCHEDULES
	 
	 	 
	Seller and Company Disclosure Schedule
	Purchaser Disclosure Schedule






-iv-









 






     SHARE PURCHASE AGREEMENT (this “Share Purchase Agreement”), dated as of March 24,
2010, by and among ION Geophysical Corporation, a Delaware corporation (the “Seller”),
INOVA Geophysical Equipment Limited, (the “Company”), and BGP Inc., China National
Petroleum Corporation, a company organized under the laws of the PRC (the “Purchaser”).
The Seller, the Company and the Purchaser are referred to herein as the “Parties”
collectively and a “Party” individually.



RECITALS:




     WHEREAS, the Seller and the Purchaser have entered into a Term Sheet dated October 23, 2009
(the “Transaction Term Sheet”) pursuant to which the Seller and the Purchaser have agreed
to establish a joint venture to engage in the Business (as defined herein);



     WHEREAS, as contemplated in the Transaction Term Sheet, the Seller has organized the Company
as its wholly-owned Subsidiary, and intends to transfer its Business to the Company pursuant to the
Restructuring as described herein;



     WHEREAS, following the Restructuring the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, 51% of the Equity Interest of the Company on the
terms and conditions set forth herein and enter into the other Transaction Documents in order to
give effect to the joint venture;



     NOW, THEREFORE, in consideration of the mutual representations and warranties, covenants and
undertakings contained herein, and subject to and on the terms and conditions herein set forth, the
Parties hereto agree as follows:



ARTICLE I

DEFINITIONS




     Section 1.1 Specific Definitions. As used in this Share Purchase Agreement, the
following terms shall have the meanings set forth or referenced below:



     “Action” means any civil, criminal or administrative claim, action, suit, proceeding,
arbitration, controversy or investigation by or before any Government Entity or any other Person
acting on behalf of a Government Entity, whether brought by a Government Entity or any other
Person.



     “Affiliate” means, with respect to a Person, any other Person that, directly or
indirectly, Controls, is Controlled by or is under common Control with such Person. For purposes
of this Share Purchase Agreement, no member of the Seller Group or the Purchaser Group shall be
deemed an Affiliate of any member of the Company Group, and no member of the Company Group shall be
deemed an Affiliate of any member of either the Seller Group or the Purchaser Group.



     “Affiliate Transaction” means any transaction, agreement, arrangement or understanding
between the Company or any of its Subsidiaries on one hand, and any of its current or former
officers or directors or other Affiliates, on the other hand (excluding any wholly-owned Subsidiary
of the Company) that would be expected to require the fulfillment or payment of any obligations or
Liabilities by the Company.



     “Amended and Restated Articles of Association” means the amended and restated articles
of association of the Company in the form attached hereto as Exhibit A, to be adopted by
the Company at the Closing.



     “ARAM Companies” has the meaning set forth in Section 2.3(f)(iii).



 









 





     “ARAM Seller Case” means that certain Action titled “ARAM Seller Case” listed in
Section 3.12(a) of the Seller and Company Disclosure Schedule.



     “ARC” means ARAM Rentals Corporation, an unlimited liability company organized under
the Laws of Nova Scotia.



     “ASRI” means ARAM Seismic Rentals, Inc., a company organized under the Laws of the
State of Texas.



     “Bankruptcy Exception” has the meaning set forth in Section 3.3(b).



     “Books and Records” means, with respect to any Person, all books, records, Contracts,
documents, instruments, ledgers, reports, plans and files related to the conduct of the businesses
of such Person, in paper, electronic or other forms that are maintained by or on behalf of the
Person.



     “Bridge Loan Conversion” has the meaning set forth in Section 2.3(b)(ii).



     “Business” means the business of design, development, engineering, manufacture,
research and development, distribution, sales and marketing and field support of land-based
equipment used in seismic data acquisition for the energy and petroleum industry and,




     (i) with specific reference to the Seller, the Seller Group, the Company or the Company
Group, means such business as conducted by the Seller Group, including (A) any and all
existing products and technologies comprising the Scorpion®, Aries®, FireFly®, Pelton,
vibroseis, eVib, Connex and land VectorSeis® product lines and businesses; (B) ARAM
equipment rental business as conducted by ARC and ASRI; and (C) any research and development
of, improvements on and new products by the Seller Group (but only prior to the Closing) or
the Company Group based on the products referred to in clauses (A) to (B), other than, in
each case, the Excluded Business; and




     (ii) with specific reference to the Purchaser or the Purchaser Group, means such
business as conducted by the Purchaser Group, including the research, development and
production of certain land seismic recording systems and auxiliary equipment, other than the
Excluded Business.



     “Business Assets” means all tangible and intangible assets necessary to or principally
used in the conduct of the Business as presently conducted and operated by a Relevant Group,
including (i) the Transferred Business Assets, (ii) the facilities and services to which the
Company Group will have a contractual right pursuant to the transfer or assignment of the
Transferred Material Contracts and the Transferred Business IP Agreements and (iii) the rights and
services to be provided to the Company pursuant to the Transaction Documents.



     “Business Day” means any day other than a Saturday, a Sunday or a day on which banks
in the PRC or the U.S. are permitted or obligated by applicable Law to be closed.



     “Business Employee” means any current employee, officer, director or consultant of a
Relevant Group principally engaged in providing services to the Business of the Relevant Group.



     “Business Financial Statements” has the meaning set forth in Section 3.8(b).



     “Business Intellectual Property” means the Owned Intellectual Property and the
Licensed Intellectual Property.



     “Business IP Agreements” means with respect to a Party, (i) all agreements under which
a Party (or a Relevant Group) is licensed or otherwise permitted by a third party to use any
Business Intellectual Property, and (ii) all agreements under which a third party is licensed or
otherwise permitted to use any of a Party’s (or a Relevant Group’s) Business Intellectual Property
owned by such Party (or Relevant Group).



2









 





     “Business IT Assets” means with respect to a Party, all IT Assets that are necessary
to or used in the conduct or operations of its Business as presently conducted and operated,
including its Business Software.



     “Business Products” means with respect to a Party, all service offerings or products
made commercially available or otherwise distributed, or under development under its Business.



     “Business Real Property” means all Owned Real Property and all Leased Real Property of
a Party or its Relevant Group; provided that for purposes of Section 5.7(a), it is understood and
agreed that certain Leased Real Property of the Seller shall be subleased to the Company as set
forth in Schedule 3.14(a) of the Seller and Company Disclosure Schedule and not transferred by way
of assignment.



     “Business Related Party Transaction” has the meaning set forth in Section 3.17(e).



     “Business Software” means with respect to a Party, all Owned Software and Licensed
Software that are necessary to or used in the conduct or operations of its Business as presently
conducted and operated, including all (i) Software used in its Relevant Group’s provision of its
Business Products to customers and/or end users, including any Software incorporated in, or
integrated or bundled with, any such Business Product, (ii) Software intended for license to
customers and/or end users, and (iii) Software, libraries, modules and other materials used by its
Relevant Group in the development, design, construction or testing of any of such Software
described in clause (i) or (ii) above.



     “Cash Purchase Price” has the meaning set forth in Section 2.3(d)(ii)(1).



     “CFIUS” means the Committee on Foreign Investments in the United States.



     “CFIUS Approval” means any of the following: (i) CFIUS shall have provided notice to
the Seller and the Purchaser to the effect that a review or investigation of the Contemplated
Transactions has been concluded, and that a determination has been made that the Contemplated
Transaction is not a covered transaction subject to CFIUS review, or (ii) with respect to any part
of the Contemplated Transactions that CFIUS determines is a covered transaction, (A) CFIUS shall
have provided notice to the Seller and the Purchaser to the effect that a review or
investigation has been concluded, and that there are no unresolved U.S. national security
concerns or (B) CFIUS shall have provided notice to the Seller and the Purchaser to the effect that
a review or investigation of the Contemplated Transactions has been concluded, and that a
determination has been made that mitigation efforts are necessary to resolve the U.S. national
security concerns of CFIUS and the Seller and the Purchaser shall have agreed on such mitigation
efforts and entered into such agreements that permit CFIUS to confirm that there are no unresolved
U.S. national security concerns or (iii) the period of time for any applicable review process by
CFIUS and any subsequent Presidential decision whether to take action under Exon-Florio shall have
expired, and the President of the United States shall not have taken action to block or prevent the
consummation of the Contemplated Transactions under Exon-Florio on the basis that they threaten to
impair the U.S. national security or otherwise.



     “CIS Subsidiary” has the meaning set forth in Section 2.3(f)(ii).



     “Claims” means any and all (i) administrative, regulatory, judicial or arbitral
Actions; (ii) suits, petitions, appeals, demands, demand letters or claims; and (iii)
investigations, hearings, proceedings, consent orders or consent agreements.



     “Claim Notice” has the meaning set forth in Section 8.3(a).



     “Closing” has the meaning set forth in Section 2.3(a).



     “Closing Date” has the meaning set forth in Section 2.3(a).



     “Closing Process Memorandum” has the meaning set forth in Section 2.3(b)(v).



3









 





     “Company” has the meaning set forth in the preamble.



     “Company Assumed Liabilities” has the meaning set forth in Section 5.7(b).



     “Company Group” means the Company and its Subsidiaries (effective upon such
Subsidiaries becoming Subsidiaries of the Company).



     “Comparable Offer of Employment” has the meaning set forth in Section 5.7(d)(i)(2).



     “Confidentiality Agreement” means that certain Non-Disclosure Agreement, dated as of
August 7, 2009 by and between the Seller and the Purchaser.



     “Consent” means any consent, approval, authorization, waiver, Permit, grant,
franchise, concession, agreement, license, certificate, exemption, order, registration,
declaration, filing, report or notice of, with or to any Person.



     “Contemplated Transactions” means the transactions contemplated by the Transaction
Documents.



     “Contract” means, with respect to any specified Person, all loan agreements,
indentures, letters of credit (including related letter of credit applications and reimbursement
obligations), mortgages, security agreements, pledge agreements, deeds of trust, bonds, notes,
guarantees, surety obligations, warranties, licenses, franchises, Permits, powers of attorney,
purchase or sale orders, leases, and other agreements, contracts, instruments, obligations,
commitments, arrangements and understandings, written or oral, to which the specified Person is a
party or by which it or any of its properties or assets may be bound or affected.



     “Control”, “Controlled”, “Controlling” or “under common Control
with” with respect to any Person means the possession, directly or indirectly, of the ability
or power to direct the management and affairs of such Person, whether through the ownership of
voting securities or by Contract, and such ability shall be deemed to exist when any Person holds a
majority of the outstanding voting securities of such Person.



     “Convertible Promissory Notes” means the Convertible Promissory Note and the
Convertible Promissory Note (Foreign Borrower) issued by the Seller and ION International S.à r.l.,
respectively, to the New Lender on October 23, 2009 under the Credit Agreement.



     “Copyrights” means published and unpublished works of authorship (including without
limitation databases and other compilations of information, mask works and semiconductor chip
rights, design rights, Software (both source code and object code), flow charts, diagrams,
descriptive texts and programs), the copyrights therein and thereto, all registrations and
applications therefor, and all renewals, extensions, restorations and reversions thereof.



     “Credit Agreement” means the Amended and Restated Credit Agreement, dated as of July
3, 2008, among the Seller, ION International S.à r.l., HSBC Bank USA, N.A., ABN Amro Incorporated,
Citibank, N.A. and the other lenders and guarantors named therein, as amended from time to time.



     “Default Fee” has the meaning set forth in Section 7.2(b).



     “Encumbrance” means any pledge, hypothecation, mortgage, lien (including environmental
and tax liens), violation, charge, claim, easement, lease, license, encumbrance, servient easement,
adverse claim, reversion, reverter, preferential arrangement, preemptive right, restrictive
covenant, equitable interest, exception, mortgage, option, pledge, right of first refusal, security
interest or statutory lien of any kind, including any condition or restriction of any kind,
including any restriction on use, voting, transfer, receipt of income or exercise of any other
attribute of ownership.



     “Environment” means surface waters, groundwaters, soil, subsurface strata and ambient
air.



4









 





     “Environmental Claims” means any Claims relating in any way to any Environmental Law
or any Environmental Permit, including (i) any and all Claims by Government Entities for
enforcement, cleanup, removal,


response, remedial or other actions or damages pursuant to any applicable Environmental Law
and (ii) any and all Claims by any Person seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the Environment.




     “Environmental Laws” means all Laws, now or hereafter in effect and as amended, and
any judicial or administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the Environment, health, safety, natural resources
or Hazardous Materials.



     “Environmental Permits” means all Permits required under or issued pursuant to any
applicable Environmental Law.



     “Equity Interest” means the registered equity capital of the Company.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     “Excluded Assets” means




     (i) with respect to the Seller Group, (A) all amounts owed by a member of the Purchaser
Group to a member of the Seller Group; (B) all Contracts between a member of the Seller
Group and Colibrys; (C) the accounts and contract rights owned by Input/Output CIS LLC under
a series of contracts with Largeo regarding data processing services, equipment leasing and
related contractual relationships; and (D) the Pending Claims of the Seller Group, other
than the ARAM Seller Case; and




     (ii) the equity interest in, and all assets of, with respect to Seller (or the Seller
Group), Colibrys, and with respect to the Purchaser (or the Purchaser Group) the minority
owned companies set forth in clause (ii) of Excluded Business and the Trademark .



     “Excluded Business” means:




     (i) with respect to the Seller (or the Seller Group) its analog sensor business and the
existing business of its minority owned company Colibrys; and




     (ii) with respect to the Purchaser (or the Purchaser Group) its analog sensor business,
including in each of Xi’an Sercel Petroleum Exploration Instrument Co. Ltd. and Hebei
Serceljunfeng Geophysical Prospecting Equipment Co., Ltd, which are as of the date hereof,
or will become within a reasonable period, minority owned companies of the Purchaser.



     “Excluded Liabilities” has the meaning set forth in Section 5.7(b).



     “Exon-Florio” means Section 721 of Title VII of the Defense Production Act of 1950, as
amended.



     “Expenses” has the meaning set forth in Section 5.5.



     “FCPA” means the U.S. Foreign Corrupt Practices Act, as amended.



     “Fletcher” means Fletcher International, Ltd., a company organized under the laws of
Bermuda.



     “Government Entity” means any central, national, territorial, foreign, international,
multinational, federal, state, provincial, local, municipal, county or other governmental,
administrative or regulatory authority, body, agency, commission or other similar entity (including
any branch, department or official thereof).



5









 





     “Hazardous Materials” means (i) petroleum and petroleum products, radioactive
materials, asbestos-containing materials, urea formaldehyde foam insulation, transformers or other
equipment that contain polychlorinated biphenyls and radon gas, (ii) any other chemicals, materials
or substances defined as or included in the definition of “hazardous substances”, “hazardous
wastes”, “hazardous materials”, “extremely hazardous wastes”, “restricted hazardous wastes”, “toxic
substances”, “toxic pollutants”, “contaminants” or “pollutants”, or words of similar import, under
any applicable Environmental Law, and (iii) any other chemical, material or substance that is
regulated by any Environmental Law.



     “Hired Company Non-U.S. Employees” has the meaning set forth in Section
5.7(d)(iii)(1).



     “HKIAC” has the meaning set forth in Section 9.10(a).



     “Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic
of China.



     “ICON Capital Financing” means the master loan and security agreement between ARC, the
Seller and ICON ION, LLC and the U.S. master loan and security agreement between ASRI, the Seller
and ICON ION, LLC, each dated as of June 29, 2009.



     “ICON Capital Financing Guaranty” has the meaning set forth in Section 5.7(c)(v).



     “IFRS” means the International Financial Reporting Standards promulgated by the
International Accounting Standards Board, which include International Accounting Standards and
their interpretations, as in effect from time to time.



     “Indebtedness” means, with respect to any Person, on a consolidated basis: (i) all
indebtedness of such Person, whether or not contingent, for borrowed money, whether in the form of
outstanding loans, credit facilities, notes or other debt; (ii) all obligations of such Person for
premium, cancellation or termination charges or break fees payable in connection with any
prepayment, cancellation or termination of any loans, credit facilities, notes or other
outstanding debt; (iii) all obligations of such Person for accrued, but unpaid interest on any
outstanding loans, credit facilities, notes or debt (excluding any debt incurred in the Ordinary
Course of Business); (iv) all obligations of such Person for the deferred cash purchase price of
property or services; (v) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments; (vi) all premium, cancellation or termination charges or break fees that
may be incurred in connection with the unwinding of any interest rate or currency rate swap
arrangements; (vii) all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property); (viii) all obligations of such Person under all capitalized
leases or finance leases that are or should be recorded as capitalized leases in accordance with
applicable generally accepted accounting principles, including IFRS and US GAAP; (ix) all
obligations, contingent or otherwise, of such Person under acceptance, letter of credit or similar
facilities; (x) all obligations of such Person to purchase, redeem, retire, defease or otherwise
acquire for value (a) any capital stock of such Person or (b) any warrants, rights or options to
acquire such capital stock (excluding any warrants, rights or options issued in the Ordinary Course
of Business pursuant to any stock option agreements, restricted stock and restricted stock unit
agreements and similar agreements for such Person’s employee equity compensation and any capital
stock issuable upon exercise thereof); (xi) all Indebtedness of others referred to in clauses (i)
through (x) above guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (A) to pay or purchase such
Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness or (B)
otherwise to assure a creditor against loss; and (xii) all Indebtedness referred to in clauses (i)
through (x) above secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Encumbrance on property (including accounts and
contract rights) owned by such Person, even though such Person has not assumed or become liable for
the payment of such Indebtedness.



     “Indemnified Parties” has the meaning set forth in Section 8.2(b).



     “Indemnifying Party” has the meaning set forth in Section 8.3(a).



6









 





     “Insurance Policies” has the meaning set forth in Section 3.22.



     “Intellectual Property” means intellectual property rights, industrial and
similar proprietary rights, whether protected, created or arising under the Laws of the U.S. or any
other jurisdiction anywhere in the world, including all Patents, Copyrights, Trademarks, Software,
trade secrets, inventions, know-how, formulae, processes, procedures, customer lists, supplier
lists, market surveys and marketing know-how and other proprietary confidential information, along
with all other intellectual property and goodwill of the Business connected with the use of the
foregoing and all registrations or applications in connection with the foregoing, and the rights to
sue for and remedies against past, present and future infringements of, any or all of the
foregoing, and rights of priority and protection of interests therein under the laws of any
jurisdiction worldwide, except for past, present and future damages, whether a loss or an award to
such Party arising from Pending Claims.



     “Intellectual Property Agreements” means (i) with respect to the Seller Group, the
Seller Group Intellectual Property Agreement, and (ii) with respect to the Purchaser Group, the
Purchaser Intellectual Property Agreement.



     “Inventories” means, with respect to the Business of a Party, all inventory,
merchandise, finished goods, parts and materials, packaging, labels, supplies and other personal
property maintained, held or stored by or for such Party, and any prepaid deposits for any of the
same.



     “Investor Rights Agreement” means that certain Investor Rights Agreement by and
between the Seller and Purchaser and dated as of the Closing Date.



     “ITAR” means the International Traffic in Arms Regulations (22 C.F.R. § 120 et seq.).



     “IT Assets” means Software, systems, servers, computers, hardware, firmware,
middleware, networks, data communications lines, routers, hubs, switches and all other information
technology equipment, and all associated documentation and data held in databases or other
electronic forms of storage.



     “Joint Venture Agreement” means the Joint Venture Agreement to be entered into between
the Seller and the Purchaser in the form attached hereto as Exhibit C, which provides for,
among other things, the governance of the Company after the Closing.



     “Joint Venture Collaboration Agreement” means the collaboration agreement to be
entered into among the Purchaser, the Seller and the Company in the form attached hereto as
Exhibit B-1, which provides for certain collaboration among the Purchaser, the Seller and
the Company after the Closing.



     “Key Business Employees” has the meaning set forth in Section 3.19(b)(ii).



     “Key Business Employee Agreements” means employment agreements to be entered into
between the Company or its Subsidiaries, on one hand, and the Key Business Employees, on the other
hand, whose employment is not transferred by the transfer of their employing Subsidiary from the
Seller Group to the Company, pursuant to Section 5.7(d), in the form attached hereto as Exhibit
D.



     “Key Business non-U.S. Employees” has the meaning set forth in Section 3.19(b)(ii).



     “Key Business U.S. Employees” has the meaning set forth in Section 3.19(a)(ii).



     “Knowledge” means, with respect to the Company, the Seller or the Purchaser, the
knowledge of such Person after due and careful enquiry and shall be deemed to include the knowledge
of such Person’s board of directors and executive management or such equivalent bodies.



     “Law” means any central, national, territorial, foreign, international, multinational,
federal, state, provincial, local, municipal, county or other (i) law, statute, code, ordinance,
treaty, rule, regulation, order, decree, judgment or ruling of any Government Entity or (ii) common
law or rule of law.



7









 





     “Leases” means, with respect to a Party, all real property leases and subleases of
that Party and any and all material ancillary documents pertaining thereto, to which such Person is
a party or is bound that are necessary to or principally used in the conduct or operation of the
Business as presently conducted and operated.



     “Leased Real Property” means with respect to a Party, the real property leased by any
member of its Relevant Group as tenant, together with, to the extent leased by such member, all
buildings and other structures, facilities or improvements currently or hereafter located thereon,
all fixtures, systems, equipment and items of personal property of such member attached or
appurtenant thereto and all easements, licenses, rights and appurtenances relating to the
foregoing, that is necessary to or principally used in the conduct or operation of its Business as
presently conducted and operated.



     “Liability” means any debt, liability, commitment or obligation of any kind, character
or nature whatsoever, whether known or unknown, choate or inchoate, secured or unsecured, accrued,
fixed, absolute, contingent or otherwise, and whether due or to become due or determined or
determinable, including those arising under any Law, Order, Claim, Action, arbitration, inquiry or
other proceeding and those arising under any Contract.



     “Licensed Intellectual Property” means with respect to a Party, all Intellectual
Property that any member of its Relevant Group is licensed or otherwise permitted by other Persons
to use that is necessary to or used in the conduct or operation of its Business as presently
conducted and operated, including Intellectual Property licensed to or permitted to be used by the
Relevant Group pursuant to the Business IP Agreements and Licensed Software.



     “Licensed Software” means with respect to a Party, all Software that any member of its
Relevant Group is licensed or otherwise permitted by other Persons to use that is necessary to or
used in the conduct or operation of such Party’s Business as presently conducted and operated.



     “Losses” has the meaning set forth in Section 8.2(a).



     “Macau” means the Macau Special Administrative Region of the People’s Republic of
China.



     “Material Adverse Effect” means




     (i) with respect to the Business of any Party (or its Relevant Group), any event,
occurrence, fact, condition, change, development or effect on its Business that,
individually or in the aggregate with all other circumstances, changes in or effects on its
Business, (A) has or would be expected to have a material adverse effect on the business,
assets, operations, prospects, results of operations, condition (financial or otherwise),
properties (including intangible properties), assets (including intangible assets) or
liabilities (including contingent liabilities) of such Business, taken as a whole, or (B)
has or would be expected to have a material adverse effect on the ability of the Company to
operate or conduct such Business after the Closing in the manner in which it is currently or
contemplated to be operated or conducted by the such Party’s Relevant Group; and




     (ii) with respect to the Seller or Purchaser, any effect that would materially affect
the legality, validity or enforceability of this Share Purchase Agreement with respect to
the Seller or Purchaser, as applicable, materially impair the ability of the Seller or the
Purchaser to perform its obligations under any of the Transaction Documents or otherwise
materially impede the consummation and completion of the Contemplated Transactions;


provided, however, that in determining whether a Material Adverse Effect has
occurred with respect to a Party or its Business, there shall be excluded any effect on the Party
or its Business relating to or arising in connection with: (a) any action required to be taken or,
the failure to take any action prohibited from being taken, pursuant to the terms and conditions of
this Share Purchase Agreement; (b) changes affecting the economies of Canada, the United States,
the PRC or any foreign market where the Party has material operations or sales generally (provided
in each case that such changes do not have a unique or disproportionate impact on the Party or its
Business); (c) changes in, or events or conditions affecting, the seismic, petroleum drilling or
services industries generally, including, without limitation,




8









 







changes resulting from the price of oil, gas, natural gas liquids or other hydrocarbon products (provided in each case that such
changes do not have a unique or disproportionate impact on the Party or its Business); (d) any
natural disaster or hostilities, acts of war or terrorism or any material escalation of any such
hostilities, acts of war or terrorism existing as of the date hereof; (e) with respect to the
Business of the Seller Group or the Company Group, any action to which the Purchaser has expressly
consented in writing after the Seller has explicitly informed and consulted with the Purchaser and
(f) with respect to the Business of the Purchaser Group, any action to which the Seller has
expressly consented in writing after the Purchaser has explicitly informed and consulted with the
Seller.




     “Material Contract” has the meaning set forth in Section 3.14.



     “Mitigation Actions” has the meaning set forth in Section 8.7.



     “New CIS Entity” has the meaning set forth in Section 2.3(f)(ii).



     “New Lender” means Bank of China, New York Branch, or its permitted assignees, in its
role as a party to the Credit Agreement.



     “Non-Transferred U.S. Employee” has the meaning set forth in Section 5.7(d)(i)(4).



     “Non-U.S. Business Employee” means any employee of the Warranting Party Group engaged
primarily in providing services to the Business of the applicable Warranting Party Group, other
than U.S. Business Employees.



     “Notice Period” has the meaning set forth in Section 8.3(a).



     “OFAC” means the U.S. Treasury Department’s Office of Foreign Assets Control.



     “OFAC Regulations” has the meaning set forth in Section 4.1(e).



     “Off-the-Shelf Software” means all Business Software that is commercially available
off-the-shelf Software that has not been modified or customized for the Seller Group.



     “Order” means a non-appealable final order, decree or judgment of any court or
Government Entity having competent jurisdiction.



     “Ordinary Course” or “Ordinary Course of Business” means the conduct of the
Business that is (i) in accordance with day-to-day customs, practices and procedures and consistent
with past practice of the Seller or the Purchaser, as applicable and (ii) where any action taken is
similar in nature and magnitude to actions customarily taken in the ordinary course of the
Business’ customary day-to-day operations prior to the Reference Date, without authorization or any
need for authorization by the Seller’s or the Purchaser’s shareholder(s) or board of directors or
such equivalent bodies (it being understood that, in each case, excluding any acquisition of any
business, speculative investment activities, strategic investment in any business or assets or
disposal of material assets of the Business).



     “Organizational Documents” has the meaning set forth in Section 4.1(a)(ii).



     “Outside Date” has the meaning set forth in Section 7.1(b).



     “Owned Intellectual Property” means with respect to a Party (or a Relevant Group), all
Intellectual Property owned by its Relevant Group that is necessary to or used in the conduct or
operation of its Business as presently conducted and operated, except that, with respect to the
Seller, it shall exclude its Pending Claims.



     “Owned Real Property” means with respect to a Party (or a Relevant Group), all real
property owned in fee, if any, by its Relevant Group that is necessary to or principally used in
the conduct or operation of its Business as presently conducted and operated.



9









 





     “Owned Software” means with respect to a Party (or a Relevant Group), all Software
owned by its Relevant Group that is necessary to or used in the conduct or operation of its
Business as presently conducted and operated.



     “Party” or “Parties” has the meaning set forth in the preamble.



     “Patents” means patents (including utility and design patents), industrial designs,
utility models and similar technology rights and the applications and registrations for the
foregoing, including divisions, provisionals, extensions, re-examinations, reissues, foreign
counterparts, continuations, continuations-in-part and renewal applications, anywhere in the world.



     “Pending Claims” has its meaning set forth in Section 3.12(a).



     “Permits” means all permits, approvals, identification numbers, licenses and other
authorizations required under or issued pursuant to any applicable Law.



     “Permitted Encumbrances” means (i) mechanics’, materialmen’s, warehousemen’s,
carriers’, workers’ or repairmen’s liens or other similar Encumbrances, in each case, for charges
(A) not yet due and payable, (B) due but not delinquent or (C) being contested in good faith by
appropriate proceedings, (ii) liens for Taxes, assessments and other governmental charges (A) not
yet due and payable, (B) due but not delinquent or (C) being contested in good faith by appropriate
proceedings, (iii) with respect to real property, to the extent they do not, individually or in the
aggregate, materially interfere with the current use of such property in the Business, (A)
easements, quasi-easements, licenses, covenants, rights-of-way, rights of re-entry or other similar
restrictions, including any other agreements, conditions or restrictions that would be shown by a
title survey, (B) any conditions that may be shown by a current survey or physical inspection and
(C) zoning, building, subdivision or other similar requirements or restrictions, (iv) Encumbrances
incurred in the Ordinary Course that are not material for the current use of such property in the
Business, (v) with respect to Leased Real Property, Encumbrances created by actions of the landlord
and not within the reasonable control of the tenant, (vi) Encumbrances pursuant to the ICON Capital
Financing, (vii) Encumbrances pursuant to the Credit Agreement that will be released upon the
Closing, and (viii) the reversionary rights of the inventors of any Patents which are identified as
being subject to reversion in Section 3.21 of the Relevant Disclosure Schedule.



     “Person” means any individual, corporation, partnership, joint venture, joint-stock
company, limited partnership, proprietorship, association, limited liability company, firm, trust,
estate, unincorporated organization or other enterprise or entity.



     “Plan of Reorganization” means the Plan of Reorganization described in Section 2.1.



     “Post-Closing Tax Period” has the meaning set forth in Section 5.14(b).



     “PRC” means the People’s Republic of China. PRC excludes, solely for the purposes of
this Share Purchase Agreement, Hong Kong, Macau and Taiwan.



     “Pre-Closing Restructuring Agreements” has the meaning set forth in Section 5.7(c).



     “Pre-Closing Tax Period” has the meaning set forth in Section 5.14(a).



     “Prepaid Expenses” means those costs and expenses with respect to the Business of a
Party that have been paid in advance for goods and services to be received from third parties in
the future, and which are classified as assets of the prepaying Party.



     “Public Software” means any Software that contains, or is derived in any manner from,
in whole or in part, any Software that is distributed as freeware, shareware, open source Software
(e.g., Linux) or similar licensing or distribution models that (i) require the licensing or
distribution of source code to any other Person, (ii) prohibit or



10









 




limit the receipt of consideration in connection with sublicensing or distributing any
Software, (iii) except as specifically permitted by applicable Law, allow any Person to decompile,
disassemble or otherwise reverse-engineer any Software, or (iv) require the licensing of any
Software to any other Person for the purpose of making derivative works. For the avoidance of
doubt, “Public Software” includes Software licensed or distributed under any of the
following licenses or distribution models (or licenses or distribution models similar thereto):
(A) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (B) the Artistic License
(e.g., PERL); (C) the Mozilla Public License; (D) the Netscape Public License; (E) the Sun
Community Source License (SCSL); (F) the Sun Industry Standards License (SISL); (G) the BSD
License; (H) Red Hat Linux; (I) the Apache License; and (J) any other license or distribution model
described by the Open Source Initiative as set forth on www.opensource.org.




     “Purchase” has the meaning set forth in Section 2.2.



     “Purchased Equity Interest” has the meaning set forth in Section 2.2.



     “Purchaser” has the meaning set forth in the preamble of this Share Purchase
Agreement.



     “Purchaser Assignment, Transfer and Assumption Agreement” means the assignment,
transfer and assumption agreement to be entered into between the Purchaser Holdco and the Purchaser
in the form attached hereto as Exhibit E and/or such other agreements required or
customarily used under the laws of the PRC of substantially similar effect, pursuant to which the
Purchaser would transfer its Transferred Business Assets to the Purchaser Holdco.



     “Purchaser Group” means the Purchaser and its Affiliates, including Purchaser Holdco,
but excluding for the avoidance of doubt, the Company Group.



     “Purchaser Hired Company U.S. Employees” has the meaning set forth in Section
5.7(d)(i)(1).



     “Purchaser Holdco” has the meaning set forth in Section 2.2.



     “Purchaser Indemnified Parties” has the meaning set forth in Section 8.2(a).



     “Purchaser Intellectual Property Agreements” means the intellectual property agreement
to be entered into between the Company and the Purchaser in the form attached hereto as Exhibit
F, which provides for certain arrangements concerning Intellectual Property between the Company
and the Purchaser.



     “Purchaser Required Approvals” means the approvals or authorizations of, filings and
registrations with, and notifications to, all Governmental Entities required for the Purchaser to
complete the Contemplated Transactions, including the CFIUS Approval, the approvals of the National
Development and Reform Commission of the PRC and the Ministry of Commerce of the PRC.



     “Purchaser Restructuring” has the meaning set forth in Section 5.7.



     “Receivables” means, with respect to a Party (or a Relevant Group), any and all
accounts receivable, notes and other amounts receivable from third parties, including customers and
employees, arising from the conduct of its Business before the Closing, whether or not in the
Ordinary Course, together with any unpaid financing charges accrued thereon.



     “Reference Date” means September 30, 2009.



     “Refinancing” has the meaning set forth in Section 2.3(b)(i).



     “Registered” means issued by, registered or filed with, renewed by or the subject of a
pending application before any Government Entity or Internet domain name registrar.



11









 





     “Relevant Disclosure Schedule” has the meaning set forth in Section 3.1(e).



     “Relevant Group” means (i) the Seller Group, with respect to the Seller, or the
Company and (ii) the Purchaser Group, with respect to the Purchaser.



     “Relevant Required Approvals” has the meaning set forth in Section 3.1(d).



     “Representatives” means, with respect to any Person, such Person’s and such Person’s
Affiliates’ respective directors, officers, general partners, limited partners, financing sources,
equity holders, members, managers, employees, agents, consultants, advisors or other
representatives.



     “Restructuring” has the meaning set forth in Section 5.7.



     “Revolving Loan Payoff Amount” has the meaning set forth in Section 2.3(c)(i)(1)(ii).



     “Revolving Loans” has the meaning set forth in the Credit Agreement.



     “SDN” means the Persons on the List of Specially Designated Nationals and Blocked
Persons, that are the targets of U.S. economic sanctions administered by OFAC.



     “SEC Documents” has the meaning set forth in the Stock Purchase Agreement.



     “Seconded Non-U.S. Employees” has the meaning set forth in Section 5.7(d)(iii)(1).



     “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and
the regulations promulgated thereunder, as in effect from time to time.



     “Seller” has the meaning set forth in the preamble of this Share Purchase Agreement.



     “Seller and Company Required Approvals” means the approvals or authorizations of,
filings and registrations with, and notifications to, all Governmental Entities required for the
Seller or the Company to complete the Contemplated Transactions, including the CFIUS Approval, and
relevant approvals in the PRC, if any.



     “Seller and Purchaser Collaboration Agreement” means the collaboration agreement to be
entered into between the Purchaser and the Seller in the form attached hereto as Exhibit
B-2, which provides for certain collaboration between the Purchaser and the Seller after the
Closing.



     “Seller Continuing Company U.S. Employees” has the meaning set forth in Section
5.7(d)(i)(1).



     “Seller Group” means the Seller and its Affiliates from time to time, but excluding
the Company Group.



     “Seller Group Assignment, Transfer and Assumption Agreements” means the assignment,
transfer and assumption agreement to be entered into between the Company and the Seller in the form
attached hereto as Exhibit G, pursuant to which the Seller would transfer certain assets to
the Company.



     “Seller Group Intellectual Property Agreement” means the intellectual property
agreement to be entered into between a member of the Company Group and the Seller in the form
attached hereto as Exhibit H, which provides for certain arrangements concerning
Intellectual Property between the Company and the Seller.



     “Seller Hired Company U.S. Employees” has the meaning set forth in Section
5.7(d)(i)(1).



     “Seller Historical Financial Statements” has the meaning set forth in Section 3.8(a).



12









 





     “Seller Indemnified Parties” has the meaning set forth in Section 8.2(b).



     “Seller Pro Forma Business Balance Sheet” has the meaning set forth in Section 3.8(a).



     “Seller Tax Return” has the meaning set forth in Section 5.14(d).



     “Seller Transferred Company U.S. Employees” means those Seller Continuing Company U.S.
Employees who continue employment with the Company Group as of 12:01 a.m. (Houston time) on the day
following the Closing Date, and Seller Hired Company U.S. Employees.



     “Share Purchase Agreement” means this Share Purchase Agreement and all schedules and
exhibits attached hereto.



     “Software” means all (i) computer programs, applications, systems and code, including
software implementations of algorithms, models and methodologies, program interfaces, and source
code and object code, (ii) databases and compilations, including data and collections of data,
whether machine-readable or otherwise, (iii) development and design tools, library functions and
compilers, and (iv) media, documentation and other works of authorship, including user manuals and
training materials, relating to or embodying any of the foregoing or on which any of the foregoing
is recorded.



     “Solvent” shall mean for any Person that the book value of its assets exceeds the sum
of (i) the face value of all Liabilities required to be on the balance sheet and (ii) the face
value of all Liabilities of any other Person guaranteed by the first Person (or for which such
first Person is otherwise jointly and severally liable) if such other Person is not Solvent in
accordance with this definition, all determined by reference to the consolidated financial
statements of such Person and the generally accepted accounting principles applicable to such
Person as in effect from time to time.



     “Stock Purchase Agreement” means that certain Stock Purchase Agreement, dated as of
the date hereof, by and between the Seller and Purchaser.



     “Stub Period” has the meaning set forth in Section 5.14(a).



     “Stub Period Objection Notice” has the meaning set forth in Section 5.14(e).



     “Stub Period Returns” has the meaning set forth in Section 5.14(e).



     “Subleases” means the subleases described in the Support and Transition Agreements.



     “Subsidiary” or “Subsidiaries” means, with respect to any Person, any other
Person of which (i) at least a majority of the securities or ownership interests, having by their
terms ordinary voting power to elect a majority of the board of directors or elect or appoint other
Persons performing similar functions, is directly or indirectly owned or controlled by such Person
and/or by one or more of its Subsidiaries or (ii) more than half of the board of directors, or
similar governing body, is controlled by such Person, by voting securities or otherwise.



     “Substantial Detriment” means any procedural or substantive requirement, term,
condition or consequence the acceptance of which would materially adversely alter (i) the
Purchaser’s or any of its Subsidiaries’ or Affiliates’ ability to own or operate any of their
respective businesses or operations or ability to conduct any such businesses or operations
substantially as conducted as of the date of this Share Purchase Agreement; (ii) the Seller’s or
any of its Affiliates’ ability to own or operate any of their respective businesses or operations
or ability to conduct any such businesses or operations substantially as conducted as of the date
of this Share Purchase Agreement; (iii) the Purchaser’s ability to acquire, hold and dispose of the
Purchased Equity Interest (or vote the Purchased Equity Interest) and realize the economic
incidents of ownership of the Purchased Equity Interest.



13









 





     “Support and Transition Agreements” means the support or transition agreements to be
entered into between the Company and each of the Purchaser and the Seller as agreed by the Parties,
which may provide for certain support or transition services to be provided by each of the Seller
and Purchaser to the Company after the Closing, including the Purchaser Employee Secondment
Agreement substantially in the form attached hereto as Exhibit I.



     “Tax Returns” means, as to any Person, all central, national, territorial, foreign,
federal, state, provincial, local, municipal, county or other Tax returns, Tax or information
reports, declarations of estimated Tax and other forms, including consolidated income Tax returns
of such Person and the entities consolidated with such Person (in each case, including any related
or supporting information) filed or required to be filed with respect to any taxing authority with
respect to Taxes, including any schedules, attachments or amendments thereto.



     “Taxes” means, as to any Person, central, national, territorial, foreign, federal,
state, provincial, local, municipal, county or other income, profits, gains, receipts, windfall or
excess profits, salaries, severance, interest, property, production, sales, service, value added,
consumption, business, use, license, customs, excise, franchise, stamp, documentary, employment,
withholding, deduction or similar taxes, together with any interest, additions, surcharges, or
penalties with respect thereto and any interest in respect of such additions, surcharges or
penalties, and central, national, territorial, foreign, federal, state, provincial, local,
municipal, county or other impositions, duties, contributions and levies required by applicable
Law.



     “Term Loan Payoff Amount” has the meaning set forth in Section 2.3(c)(i)(1)(iii).



     “Term Loans” has the meaning set forth in the Credit Agreement.



     “Terminating Purchaser Breach” has the meaning set forth in Section 7.1(d).



     “Terminating Seller Breach” has the meaning set forth in Section 7.1(c).



     “Third Party Approvals” has the meaning set forth in Section 3.4.



     “Third-Party Claim” has the meaning set forth in Section 8.3(a).



     “Threshold Amount” has the meaning set forth in Section 8.2(f)(i).



     “Trademarks” means all trademarks, service marks, brand names, trade dress, logos,
trade names, Internet domain names, corporate names and d/b/a’s, doing business names, and other
source indicators and indicia of origin, including the registrations and applications for
registrations thereof and all goodwill associated therewith and symbolized thereby.



     “Transaction Documents” means this Share Purchase Agreement, the Amended and Restated
Articles of Association, the Joint Venture Agreement, the Joint Venture Collaboration Agreement,
the Seller and Purchaser Collaboration Agreement, the Support and Transition Agreements, the
Purchaser Assignment, Transfer and Assumption Agreements, the Purchaser Intellectual Property
Agreement, and the Pre-Closing Restructuring Agreements.



     “Transaction Term Sheet” has the meaning set forth in the Recitals.



     “Transferred Business Assets” has the meaning set forth in Section 5.7(a).



     “Transferred Business IP Agreements” means the Business IP Agreements primarily used
in the conduct or operation of the Relevant Group’s Business as presently conducted and operated.



     “Transferred Business Intellectual Property” means the Intellectual Property primarily
used in the conduct or operation of the Relevant Group’s Business as presently conducted and
operated.



14









 





     “Transferred Business IT Assets” means, with respect to a Party (or a Relevant Group),
all Business IT Assets primarily used, in the conduct or operation of its Business as presently
conducted and operated.



     “Transferred Company Employees” has the meaning set forth in Section 5.7(d)(iii)(1).



     “Transferred Company U.S. Employees” means the Purchaser Hired Company U.S. Employees
and the Seller Transferred Company U.S. Employees.



     “Transferred Company Non-U.S. Employees” has the meaning set forth in Section
5.7(d)(iii)(1).



     “Transferred Licensed Intellectual Property” means the Licensed Intellectual Property
primarily used in the conduct and operations of the Business as presently conducted and operated.



     “Transferred Material Contracts” means all Material Contracts other than the Business
IP Agreements.



     “Transferred Owned Intellectual Property” means, with respect to a Party (or a
Relevant Group), all Owned Intellectual Property primarily used in the conduct or operation of its
Business as presently conducted and operated, including the Transferred Patents, the Transferred
Patents Subject to Reversion, the Transferred Owned Software and the Transferred Trademarks.



     “Transferred Owned Software” means, with respect to a Party (or a Relevant Group), the
Owned Software that is used primarily in the conduct or operation of its Business as presently
conducted and operated.



     “Transferred Patents” means, with respect to a Party (or a Relevant Group), those
Patents owned or held, directly or indirectly, by it or its Affiliates that are primarily used in
the conduct or operation of its Business as presently conducted and operated.



     “Transferred Patents Subject to Reversion” means, with respect to a Party (or a
Relevant Group), those Patents owned or held, directly or indirectly, by it or its Affiliates that
are primarily used in the conduct or operation of its Business as presently conducted and operated
and are subject to reversionary rights of the inventor(s).



     “Transferred Subsidiaries” means, (a) with respect to the Seller Group, (i) Texas
Seismic Rentals, Inc., (ii) ASR, (iii) ION Exploration Holdings S.a r.l., (iv) ARAM Systems
Corporation, (v) ARAM Systems Inc., (vi) ARAM Systems Middle East, (vii) ARC and (viii) CIS
Subsidiary; and (b) with respect to the Purchaser Group, Purchaser Holdco.



     “Transferred Trademarks” means, with respect to a Party (or a Relevant Group), those
Trademarks owned or held, directly or indirectly, by it or its Affiliates that are used primarily
in the conduct or operation of its Business as presently conducted and operated.



     “Transferred Warranting Party U.S. Plan” has the meaning set forth in Section
3.18(a)(ii).



     “U.S.” means United States of America.



     “U.S. Business Employee” means any current U.S. employee of the Warranting Group
engaged primarily in providing services to the Business of the applicable Warranting Party Group.



     “US GAAP” means generally accepted accounting principles in the U.S.



     “US$” means U.S. dollar, the lawful currency of the U.S.



     “Warrant” means the warrant issued by the Seller to the Purchaser on October 27, 2009
in connection with the provision of the Revolving Loan by the New Lender.



15









 





     “Warrantee Party” has the meaning set forth in Section 3.1(b).



     “Warranting Party” has the meaning set forth in Section 3.1(a).



     “Warranting Party Group” has the meaning set forth in Section 3.1(c).



     “Warranting Party non-U.S. Plans” has the meaning set forth in Section 3.18(b)(i).



     “Warranting Party Plans” means the Warranting Party non-U.S. Plans and the Warranting
Party U.S. Plans.



     “Warranting Party U.S. Plans” has the meaning set forth in Section 3.18(a)(i).



     Section 1.2 Other Terms. Other terms may be defined elsewhere in the text of this
Share Purchase Agreement and, unless otherwise indicated, shall have such meaning indicated
throughout this Share Purchase Agreement.



     Section 1.3 Other Definitional Provisions.



     (a) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in
this Share Purchase Agreement, shall refer to this Share Purchase Agreement as a whole and not to
any particular provision of this Share Purchase Agreement.



     (b) The phrase “directly or indirectly” means directly, or indirectly through one or more
intermediate Persons or through contractual or other arrangements, and “direct or indirect” has the
correlative meaning.



     (c) The terms defined in the singular shall have a comparable meaning when used in the plural,
and vice versa.



     (d) Words of inclusion shall not be construed as terms of limitation herein, so that
references to “included” matters shall be regarded as non-exclusive, non-characterizing
illustrations.



     (e) Any reference to a Contract or document is to that Contract or document as amended,
novated, supplemented, restated or replaced from time to time.



     (f) References in this Share Purchase Agreement to any Law or regulation include references to
such Law or regulation as amended, modified or replaced from time to time and any Laws or
regulations made pursuant to such Law or regulation; provided that nothing in this Section
1.3(f) shall operate to increase the liability of any Party beyond that which would have existed
had this Section 1.3(f) been omitted.



     (g) A covenant or agreement on the part of two or more Persons shall bind them jointly and
severally.



     (h) If any rights or obligations under this Share Purchase Agreement fall on a day or date
which is not a Business Day, such rights or obligations shall instead fall on the next succeeding
Business Day after such stated day or date.



ARTICLE II

RESTRUCTURING, SALE AND PURCHASE




     Section 2.1 Completion of Restructuring. Prior to the Closing, the Seller shall take,
and shall cause each of its Affiliates to take, all actions necessary to cause the Restructuring to
be completed in accordance with the “Plan of Reorganization” attached hereto as in Exhibit
2.1 and Section 5.7 hereof.



16









 





     Section 2.2 Sale and Purchase. Upon satisfaction of the terms and subject to the
conditions set forth in this Share Purchase Agreement and on the basis of the representations,
warranties, covenants, agreements, undertakings and obligations contained herein, the Parties agree
that at Closing the Seller shall sell, assign, transfer, convey and deliver, to the Purchaser, and
the Purchaser shall purchase (the “Purchase”), fifty-one percent (51%) of the Equity
Interest (the “Purchased Equity Interest”) of the Company in consideration for (i) the Cash
Purchase Price to be paid to the Seller (or such amounts to be paid to lenders under the Credit
Agreement with the remainder of the Cash Purchase Price being paid to the Seller as provided in the
Closing Process Memorandum) and (ii) the value of 49% of the equity interest of an entity of the
Purchaser that holds the Purchaser Transferred Assets (the “Purchaser Holdco”), with (i) to
(ii) collectively being deemed to constitute the total consideration for the Purchased Equity
Interest.



     Section 2.3 Closing; Delivery and Payment.



     (a) Closing Date. The closing of the Purchase, including payment of the Cash Purchase
Price, (the “Closing”) shall take place at the offices of Sullivan & Cromwell LLP, Suite
501, China World Trade Center Tower 1, One Jianguo Menwai Avenue, Beijing, PRC, at 10:00 a.m.,
Beijing time, as promptly as practicable, but not later than ten (10) Business Days following the
first date on which all conditions to the Closing have been either satisfied or waived by the Party
entitled to waive such condition (excluding conditions capable of being satisfied only as part of
the Closing) (the “Closing Date”); provided, however, that the Closing Date
shall not be later than the Outside Date.



     (b) Concurrent or Simultaneous Closing; Closing Process. The Parties acknowledge and
agree that the Contemplated Transactions are an integral part of the transactions contemplated by
the parties and that each of the following shall occur concurrently or simultaneously with the
Closing:




     (i) the consummation of the refinancing transaction between Seller and certain
commercial lender(s) procured by the Purchaser pursuant to which the Term Loans (as defined
in the Credit Agreement) shall be refinanced with new secured debt arranged by the Purchaser
(the “Refinancing”);




     (ii) the consummation of (i) the conversion of the Convertible Promissory Notes or (ii)
the exercise of the Warrant, or any combination thereof determined by the Purchaser (the
“Bridge Loan Conversion”), as the case may be;




     (iii) the execution and delivery by the Seller and the Purchaser of the Investor Rights
Agreement; and




     (iv) the consummation of the transactions contemplated under the Stock Purchase
Agreement.




     (v) Attached hereto as Exhibit 2.3 is a schedule setting forth the procedures
and process contemplated by the Parties with respect to the Closing, including detailed
steps and fund flow process (the “Closing Process Memorandum”). The Parties may
update and amend, as they may mutually agree in writing from time to time prior to the
Closing, the Closing Process Memorandum as required to effect the Closing.



     (c) Events to Occur Prior to the Closing. At least two (2) Business Days prior to the
Closing Date:




	 	(i)	 	the Seller shall have delivered to the Purchaser:






	 	(1)	 	a copy of an executed payoff agreement with
respect to the Credit Agreement, entered into by the Seller at least
two (2) Business Days prior to the scheduled Closing Date, which shall
provide, among other things:






	 	(i)	 	that the lenders under the Credit Agreement and the Seller have
agreed to discharge the loans under the Credit Agreement, terminate
the Credit






17











 






	 	 	 	Agreement and release the collateral held thereunder subject to the
payments of the amounts set forth in clauses (ii) and (iii)
immediately below;
	 
	 	 	 	(ii) the amounts required to repay in full the outstanding Revolving
Loans held by each lender under the Credit Agreement as of the
Closing Date, together with any fees, premiums, interest or
penalties, including a per diem for any delays in the Closing Date
(the aggregate amount of such Revolving Loans as of the Closing plus
any fees, premiums, interest or penalties being referred to herein as
the “Revolving Loan Payoff Amount”), subject to customary
assumptions;
	 
	 	 	 	(iii) the amounts required to repay in full the outstanding Term
Loans held by each lender under the Credit Agreement as of the
Closing Date, together with any fees, premiums, interest or
penalties, including a per diem for any delays in the Closing Date
(the aggregate amount of such Term Loans as of the Closing plus any
fees, premiums, interest or penalties being referred to herein as the
“Term Loan Payoff Amount”), subject to customary assumptions;
and
	 
	 	 	 	(iv) wire transfer instructions for the account(s) to which the
Revolving Loan Payoff Amount and the Term Loan Payoff Amount, if any,
are to be sent by the Purchaser.
	 
	 	(2)	 	wire transfer instructions of the Seller in
respect of the balance of the total consideration to be paid by the
Purchaser; and






(ii) the Purchaser shall have delivered to the Seller:




	 	(1)	 	Notice by the New Lender setting forth the New
Lender’s intent with respect to conversion of the Convertible
Promissory Notes or notice by the Purchaser setting forth the
Purchaser’s intent with respect to the exercise of the Warrant, or any
combination thereof.





     (d) On the Closing Date:




(i) The Seller and the Company shall deliver to the Purchaser:




	 	(1)	 	upon receipt of the amount referred to in
Section 2.3(d)(ii)(1), a counterpart to the receipt substantially in
the form set forth in Exhibit 2.3(d)(i)(1) attached hereto
certifying the receipt by the Seller of the funds as set forth in
Section 2.3(d)(ii)(1) and completion of the payoff with respect to the
Credit Agreement as more specifically provided for in the Closing
Process Memorandum;
	 
	 	(2)	 	a duly executed counterpart of each of the
Transaction Documents to which a member of the Company Group or a
member of the Seller Group is a party and which has not yet been
delivered to the Purchaser (including the Amended and Restated Articles
of Association executed and delivered by the Seller as sole shareholder
(if required) and effective as of the Closing);
	 
	 	(3)	 	the letters of resignation, effective as of the
Closing, of all of the directors and officers of the Company Group,
except for such Persons who shall remain as the directors and officers,
as agreed in writing prior to the Closing by the Purchaser and the
Seller;




18









 












	 	(4)	 	true and complete copies, certified by a duly
authorized officer of the Company or its Subsidiaries, as the case may
be, of the resolutions duly and validly adopted by the boards of
directors and shareholder(s) of the Company or its Subsidiaries, as the
case may be, evidencing their authorization and approval of (A) the
execution and delivery of each Transaction Document to which the
Company or any of its Subsidiaries, as the case may be, is a party and
the consummation of the transactions contemplated hereby and thereby;
(B) the adoption of the Amended and Restated Articles of Association by
the Company; (C) the resignations of the Persons referred to in Section
2.3(d)(i)(4); and (D) the appointment of the Persons to be designated
by the Purchaser as directors of the Company as of the Closing.
	 
	 	(5)	 	copies of all documents documenting, or entered
into in connection with, the Restructuring, including all documents
delivered in connection with the closing of the transfer of the
Transferred Business Assets pursuant to the Seller Group Assignment,
Transfer and Assumption Agreements. These documents shall include any
and all:
	 
	 	 	 	(i) deeds, bills of sale or other appropriate documents of transfer,
transferring the real and personal property included in the
Transferred Business Assets to the Company;
	 
	 	 	 	(ii) assignments assigning to the Company the Transferred Business
Intellectual Property;
	 
	 	 	 	(iii) assignment and assumption agreements, assigning to the Company
all rights of Seller Group in and to all Transferred Material
Contracts to be assigned to the Company; and
	 
	 	 	 	(iv) to the extent available, registrations and other filings made in
connection with any Transferred Business Assets to transfer ownership
of such assets to a member of Company Group, including those with
respect to any Transferred Owned Intellectual Property.
	 
	 	(6)	 	items delivered pursuant to Sections 6.2(d),
(e) and (f); and
	 
	 	(7)	 	evidence (including newly issued share
certificates) relating to the Purchase demonstrating the change in the
Equity Interest in the Company due to the transfer of the Purchased
Equity Interest.






(ii) The Purchaser shall deliver to the Seller (or to the Person otherwise indicated
herein):




	 	(1)	 	payment of US$108.5 million (the “Cash
Purchase Price”), by wire transfer in immediately available funds
in US$ to an account designated by the Seller (or such amounts to the
lenders under the Credit Agreement and the remainder to the Seller as
contemplated in the Closing Process Memorandum);
	 
	 	(2)	 	duly executed Purchaser Assignment, Transfer
and Assumption Agreements pursuant to which the Transferred Business
Assets of the Purchaser have been assigned and transferred to the
Purchaser Holdco, and all other documents documenting the transfer of
the Transferred Business Assets of the Purchaser pursuant to the
Purchaser Assignment, Transfer and Assumption Agreement;




19









 












	 	(3)	 	documents relating to the transfer of the 49%
equity interest in the Purchaser Holdco available as of the Closing
Date;
	 
	 	(4)	 	a counterpart to the receipt substantially in
the form set forth in Exhibit 2.3(d)(i)(1) attached hereto
certifying the receipt by the Purchaser of the items set forth in
Section 2.3(d)(i)(7);
	 
	 	(5)	 	a duly executed counterpart of each of the
Transaction Documents to which it or any of its Affiliates is a party
and which has not yet been delivered to the Seller; and
	 
	 	(6)	 	items delivered pursuant to Sections 6.3(c),
(d) and (e).





     (e) All of the actions to be taken pursuant to the Closing shall be deemed to occur
simultaneously and none of the actions to be taken at the Closing pursuant to this Share Purchase
Agreement shall be deemed to have occurred until the Closing is complete.



     (f) Certain Post-Closing Actions.




     (i) As soon as possible following receipt of the applicable approvals for the transfer
and contribution of the equity interest of Purchaser Holdco to the Company and in any event
within forty-five (45) days after the Closing, each of the Purchaser and the Seller shall
transfer the equity interest of Purchaser Holdco to the Company. For the avoidance of any
doubt, the Parties acknowledge that the transfer of Purchaser Holdco constitutes a part of
the Purchaser Restructuring pursuant to Section 5.7 and prior to the completion of such
transfer, the Purchaser shall comply with the obligations set forth in Section 5.7(a).




     (ii) As soon as possible following receipt of the applicable approvals for the
establishment of an entity (the “New CIS Entity”) to assume the non-Business related
activities of Input/Output Services CIS, LLC (the “CIS Subsidiary”) and the transfer
of the non-Transferred Business Assets of the CIS Subsidiary to the New CIS Entity and in
any event within forty-five (45) days after the Closing, the Company shall purchase (and the
Purchaser shall cause the Company to purchase), and the Seller shall transfer and sell, the
equity interest of the CIS Subsidiary and its Transferred Business Assets to the Company in
consideration of the payment by the Company of US$1,507,262. For the avoidance of any
doubt, the Parties acknowledge that the transfer of the CIS Subsidiary (i) constitutes a
part of the Restructuring pursuant to Section 5.7 and prior to the completion of such
transfer, the Seller shall comply with the obligations set forth in Section 5.7(a) and (ii)
is not an additional capital contribution to the Company and the Seller shall not receive
any additional Equity Interest of the Company and except as provided in the immediately
preceding sentence, the Seller shall not receive any other consideration for such transfer.




     (iii) The Parties acknowledge that the Company cannot issue the ICON Capital Financing
Guaranty until receipt of certain governmental approvals and that such approvals will not be
obtained prior to Closing. The Parties agree that on or before the Closing, ARAM Systems
Corporation and Texas Seismic Rentals, Inc. (the “ARAM Companies”) will issue a
guarantee to the Seller in substantially the form of the ICON Capital Financing Guaranty. As
soon as possible following the receipt of the applicable governmental approvals and in any
event within forty-five (45) days after the Closing, the Company shall execute and deliver
to the Seller the ICON Capital Financing Guaranty and the guarantee issued by the ARAM
Companies shall terminate.



20









 





ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE PARTIES




     Section 3.1 Structure. This Article III shall be read and construed by having the
terms below take on the meanings set forth in subclause (i) of their definitions (and the remaining
sections of this Article III shall first be read in such context) and, separately but concurrently,
having the terms below take on the meanings set forth in subclause (ii) of their definitions (and
the remaining sections of this Article III shall then be read in such context):



     (a) the term “Warranting Party” shall mean (i) the Company and the Seller,
collectively, or (ii) the Purchaser, as the case may be; and



     (b) the term “Warrantee Party” shall mean (i) the Purchaser or (ii) the Seller, as the
case may be; and



     (c) the term “Warranting Party Group” shall mean (i) the Seller Group and the Company
Group, collectively, or (ii) the Purchaser Group, as the case may be;



     (d) the term “Relevant Required Approvals” shall mean (i) the Seller and Company
Required Approvals, or (ii) the Purchaser Required Approvals, as the case may be;



     (e) the term “Relevant Disclosure Schedule” shall mean (i) the Seller and Company
Disclosure Schedule or (ii) the Purchaser Disclosure Schedule, as the case may be.



     As an inducement to the Warrantee Party to enter into this Share Purchase Agreement, the
Warranting Party hereby represents and warrants to the Warrantee Party as of the date hereof and as
of the Closing Date as follows (unless such representation and warranty is provided only as of
specific dates):



     Section 3.2 Organization and Qualification.



     (a) The Warranting Party is a company duly organized and validly existing in its jurisdiction
of incorporation, is duly licensed or qualified to do business and is in good standing (or its
equivalent) in each jurisdiction in which the properties owned or leased by it or the operation of
its business makes such licensing or qualification necessary, except to the extent that the failure
to be so licensed or qualified and in good standing would not (i) materially adversely affect the
ability of such Warranting Party to carry out its obligations under, and to consummate the
transactions contemplated by, this Share Purchase Agreement and the other Transaction Documents or
(ii) materially adversely affect the ability of such Warranting Party to conduct its Business.



     (b) The Warranting Party is Solvent and will, after the Closing and after the completion of
the Contemplated Transactions, continue to be a Solvent entity able to pay its obligations as they
become due. The Warranting Party has no intention to (i) commence any case or proceeding under any
applicable bankruptcy, insolvency, reorganization, composition or court mediation or other similar
Law or (ii) consent to the entry of a decree or order for relief in respect of any involuntary case
or proceeding under any applicable bankruptcy, insolvency, reorganization, composition or court
mediation or other similar Law and, to the Knowledge of the Warranting Party, no Person has
commenced or threatened to commence any involuntary case or proceeding against the Warranting Party
under any applicable bankruptcy, insolvency, reorganization, composition or court mediation or
other similar Law. Subsequent to the date hereof and prior to Closing, the Warranting Party shall
promptly provide the Warrantee Party with written notice if the Warranting Party has reason to
believe that the representations and warranties contained in this Section 3.2(b) will not be true
as of the Closing Date.



     Section 3.3 Corporate Power and Binding Effect.



     (a) The Warranting Party has the requisite corporate power and authority and has taken all
corporate action necessary in order to execute, deliver and perform its obligations under this
Share Purchase Agreement and the other Transaction Documents to which the Warranting Party is a
party, to carry out its obligations hereunder and thereunder and to consummate the Contemplated
Transactions. The execution and delivery of this Share Purchase



21









 




Agreement and the other Transaction Documents by the Warranting Party, the performance by the
Warranting Party of their obligations hereunder and thereunder and the consummation by the
Warranting Party of the transactions contemplated hereby and thereby have been duly authorized by
all requisite action on the part of the Warranting Party.




     (b) This Share Purchase Agreement and each other Transaction Document to which the Warranting
Party is a party, when executed and delivered by the Warrantee Party and the other parties thereto,
constitutes a legal, valid and binding obligation of the Warranting Party enforceable against the
Warranting Party in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles (the “Bankruptcy Exception”).



     Section 3.4 Consents and Approvals. Except for the Relevant Required Approvals or as
set forth in Section 3.4 of the Relevant Disclosure Schedule (the “Third Party
Approvals”), no Consent is required to be obtained by the Warranting Party from, or to be given
by the Warranting Party to, any Government Entity or any other Person, in connection with (i) the
execution, delivery and performance by such Warranting Party of this Share Purchase Agreement and
each other Transaction Document to which the Warranting Party is a party or (ii) the consummation
of the Contemplated Transactions. To the Knowledge of such Warranting Party, no other fact, event
or condition exists, or is reasonably likely to exist, that with the passage of time or otherwise,
would materially hinder, frustrate, delay or otherwise impair the consummation of the Contemplated
Transactions.



     Section 3.5 Non-Contravention. The execution, delivery and performance by the
Warranting Party of this Share Purchase Agreement and each other Transaction Documents, and the
consummation of the Contemplated Transactions (including, in the case of the Seller Group and the
Company Group, the Restructuring and the transfer of the 51% of the Equity Interest of the Company
to the Purchaser, and, in the case of the Purchaser Group, the Purchaser Restructuring and the
transfer of a 49% interest in Purchaser Holdco to the Seller) do not and will not (i) conflict
with, violate or result in the breach of any provision of the certificate of incorporation,
by-laws, memorandum of association, articles of association and/or other organizational documents
of the Warranting Party (and with respect to the Seller Group, such organizational documents of any
member of the Company Group), (ii) conflict with or violate (or cause an event which has or would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with
respect to the Warranting Party as a result of) any Law or Order applicable to such Warranting
Party or such Warranting Party Group, as the case may be, its Business, or any of its Business
Assets, or (iii) conflict with, result in any breach of, constitute a default (or event which with
the giving of notice or lapse of time, or both, would become a default) under, or give to any other
Person any rights of termination, amendment, modification, acceleration, suspension, revocation or
cancellation of, or result in the creation of any Encumbrance on any of the Business Assets of the
Warranting Party, pursuant to, any Contract to which the Warranting Party or such Warranting Party
Group, as the case may be, is a party or a beneficiary or otherwise relating to its Business or by
which any of its Business Assets is bound or affected.



     Section 3.6 Intentionally Omitted.



     Section 3.7 Assets and Sufficiency.



     (a) The Business Assets collectively constitute all such properties, tangible and intangible
assets, facilities, services and rights necessary for the Warranting Party to carry on the Business
of the Warranting Party in all material respects as presently conducted and operated by the
Warranting Party and as to enable the Company Group to conduct the Business of the Warranting Party
following the Closing.



     (b) Since December 31, 2008, there has not been any (i) damage to or destruction or loss of
any Business Asset not covered by insurance (except for deductible amounts with respect thereto),
that is likely to have a Material Adverse Effect or (ii) sale (other than sales of Inventory and
used equipment in the Ordinary Course of Business), lease (other than leases of Inventory in the
Ordinary Course of Business), material alteration or other disposition (other than the disposition
of damaged or obsolete equipment in the Ordinary Course of Business) of any material Business
Asset.



22









 





     (c) The Warranting Party owns or leases (with respect to real property, with good and
indefeasible title to or a valid leasehold interest in such real property) all of its Transferred
Business Assets, free and clear of all Encumbrances, except the Permitted Encumbrances.



     (d) Each of the Transferred Subsidiaries within the Transferred Business Assets is an entity
duly organized and validly existing in its jurisdiction of incorporation, is duly licensed or
qualified to transact business and is in good standing (or its equivalent) in each jurisdiction in
which the properties owned or leased by it or the operation of its business makes such licensing or
qualification necessary (except where such licensing or qualification to transact business is
immaterial to the Business of the Warranting Party). All of the issued and outstanding common
stock or other equity securities of each of the Transferred Subsidiaries (i) have been duly
authorized and validly issued, (ii) are fully paid and nonassessable, (iii) have been issued in
compliance with all applicable securities Laws and, (iv) are free and clear of all Encumbrances
except for the Permitted Encumbrances; (v) were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase securities; and (vi) were not issued
in violation of any Contract binding upon such Transferred Subsidiary.



     Section 3.8 Financial Statements.



     (a) With respect to the Seller as Warranting Party, (i) Seller has delivered to Purchaser, a
true and correct copy of the audited consolidated balance sheet and audited consolidated statement
of income for the Seller as of and for each of the fiscal year ended December 31, 2008 and December
31, 2009 (the “Seller Historical Financial Statements”) and (ii) set forth in Section
3.8 of the Seller and Company Disclosure Schedule is a true and correct copy of the unaudited
“ION JV Related Entities Pro forma (historical costs) balance sheet at December 31, 2009” (the
“Seller Pro Forma Business Balance Sheet”).



     (b) With respect to the Purchaser as Warranting Party, set forth in Section 3.8 of the
Purchaser Disclosure Schedule, is a true and correct copy of the financial statements for its
Business as of and for the fiscal year ended December 31, 2009 (together with the Seller Pro Forma
Business Balance Sheet, the “Business Financial Statements”). The Parties acknowledge and
agree that such financial statements provided by the Purchaser do not constitute the complete
financial statements of its Business and specifically do not include, among others, financial
statements of the Purchaser’s Business relating to the Vib business and recording systems business
of the Purchaser for which no financial statements have been provided.



     (c) With respect to the Seller as Warranting Party, except as described in the notes thereto,
the Seller Historical Financial Statements have been prepared in accordance with the generally
accepted accounting principles applicable to the Seller Group consistently applied, and fairly
present, in all material respects, the financial condition and results of operations and cash flows
of the Business of such Warranting Party as of the dates thereof or for the periods then ended,
subject in the case of the unaudited financial statements to normal year-end adjustments that will
not be material in amount or effect and the absence of footnotes and similar presentation items
therein.



     (d) With respect to the Warranting Party, the Business Financial Statements of such Warranting
Party (i) has been derived from such Warranting Party’s audited consolidated balance sheet as of
December 31, 2009 and other financial information as of such date, (ii) is intended to give effect
to the transactions described therein as if they had occurred on December 31, 2009, (iii) have been
appropriately compiled on the bases described therein; and (iv) the assumptions used in the
preparation of the Business Financial Statements are reasonable, and give appropriate effect to
those assumptions; and the pro forma adjustments applied in the Business Financial Statements are
appropriate to give effect to the transactions and circumstances referred to therein.



     (e) The Business Financial Statements of the relevant Warranting Party Group have been
properly prepared in good faith and in accordance with the Warranting Party Group’s accounting
policies and on a basis consistent with that adopted for the preparation of the consolidated
audited financial statements of the Warranting Party and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.



23









 





     (f) There are no material off-balance-sheet transactions, arrangements, obligations, or
relationships attributable to the Business of the Warranting Party or to which any member of the
relevant Warranting Party Group is a party that may have a Material Adverse Effect on the Business
of the Warranting Party.



     (g) The Books and Records of the Warranting Party Group in respect of its Business: (i)
reflect all items of income and expense and all assets and Liabilities required to be reflected
therein in accordance with the relevant local generally accepted accounting principles applied on a
basis consistent with past practices, (ii) are in all material respects complete and correct, and
do not contain or reflect any material inaccuracies or discrepancies and (iii) have been maintained
in accordance with good business and accounting practices.



     Section 3.9 Liabilities. Except as specifically consented to by the Warrantee Party,
there are no Liabilities of the Warranting Party Group in respect of its Business other than
(i) Liabilities disclosed in the Business Financial Statements of the relevant Warranting Party
Group (not including any Liabilities that will be pro forma adjusted) for such Warranting Party
Group; (ii) Liabilities incurred in the Ordinary Course of Business not required to be included in
any Business Financial Statements pursuant to applicable generally accepted accounting principles,
(iii) Liabilities incurred pursuant to the Contemplated Transactions; and (iv) between December 31,
2009 and the Closing Date, those incurred in the Ordinary Course of Business consistent with past
practice (including Liabilities in connection with accounts payables to third parties arising from
bona fide transactions) and (v) immaterial Liabilities.



     Section 3.10 Inventories; Receivables.



     (a) Subject to amounts reserved therefor in the Business Financial Statements of the relevant
Warranty Party Group, the values at which all Inventories are carried on the Business Financial
Statements of the relevant Warranting Party Group reflect the historical inventory valuation policy
of the Warranting Party Group of stating the Inventories at the lower of cost (primarily standard
cost, which approximates first-in, first-out method), or market value. The Warranting Party Group
has good title to the Inventories free and clear of all Encumbrances, except the Permitted
Encumbrances. The Inventories do not consist of any items held on consignment. The Warranting
Party Group is not under any obligation or liability with respect to accepting returns of any
Inventory in the possession of their customers other than in the Ordinary Course of Business. The
Inventories are in good condition in all material respects, are suitable and usable for the
purposes for which they are intended and are in a condition such that they can be sold in the
Ordinary Course of Business consistent with past practice except as disclosed or reserved for in
the Business Financial Statements of the relevant Warranting Party (and except for items of damage
leased equipment returned for repairs).



     (b) All Receivables of the Warranting Party Group since December 31, 2009 represent bona fide
transactions and arose from, and the Receivables of such Warranting Party Group existing as of the
Closing will have arisen from, the sale or rental of Inventories, Software or services in the
Ordinary Course of Business and, except as reserved against in the Business Financial Statements of
the relevant Warranting Party or as subsequently reserved against and adjusted for the passage of
time through the Closing Date consistent with past practice, constitute or will constitute, as the
case may be, only valid, undisputed (to the Knowledge of the Warranting Party) claims of the
Company not subject to valid claims of setoff or other defenses or counterclaims other than normal
cash discounts accrued in the Ordinary Course of Business. Notwithstanding anything herein to the
contrary, neither the Seller Group nor the Company Group makes any representations or warranties
with respect to the Receivables listed in Section 3.10(b) to the Seller and Company Disclosure
Schedules.



     (c) Set forth in Section 3.10(c) of the Relevant Disclosure Schedule is a complete and
itemized list of the Inventories and Receivables, as of December 31, 2009 and as of February 28,
2010, with respect to the Warranting Party Group’s Businesses.



     Section 3.11 Conduct in the Ordinary Course; Absence of Certain Changes, Events and
Conditions. Since the Reference Date, the Business of the Warranting Party has been conducted
in the Ordinary Course of Business, except, in the case of the Seller Group and the Company Group,
as disclosed in the SEC Documents filed



24









 




prior to the date hereof. As amplification and not limitation of the foregoing, since the
Reference Date, the Warranting Party Group has not in respect of its Business:




     (a) permitted or allowed any of the Transferred Business Assets to be subjected to any
Encumbrance, other than the Permitted Encumbrances;



     (b) except in the Ordinary Course of Business, discharged or otherwise obtained the release of
any Encumbrance or paid or otherwise discharged any Liability in an aggregate amount that exceeds
US$200,000, other than current Liabilities reflected in the Business Financial Statements of the
relevant Warranting Party or incurred in the Ordinary Course of Business since the Reference Date;



     (c) written down or written up (or failed to write down or write up in accordance with the
generally accepted accounting principles applicable to such Warranting Party Group as in effect
from time to time and consistent with past practice) the value of any Inventories or Receivables or
revalued any assets and properties other than in the Ordinary Course of Business and in accordance
with generally accepted accounting principles applicable to such Warranting Party Group as in
effect from time to time;



     (d) made any change in any method of accounting or accounting practice or policy, other than
such changes required by generally accepted accounting principles applicable to such Warranting
Party Group as in effect from time to time;



     (e) amended, terminated, cancelled or compromised any material Claim or waived any other
rights of substantial value;



     (f) sold, transferred, leased, subleased, licensed or otherwise disposed of any material
properties or assets, real, personal or mixed (including leasehold interests and intangible
property), other than in the Ordinary Course of Business.



     (g) merged with, entered into a consolidation with or acquired an interest in any Person or
acquired a substantial portion of the assets or business of any Person or any division or line of
business thereof, or otherwise acquired any material assets other than in the Ordinary Course of
Business;



     (h) made any capital expenditure or commitment for any capital expenditure other than in the
Ordinary Course of Business;



     (i) issued any sales orders or otherwise agreed to make any purchases involving exchanges in
value other than in the Ordinary Course of Business;



     (j) made any material change in its customary methods of operations, including practices and
policies relating to manufacturing, purchasing, Inventories, marketing, selling and pricing;



     (k) made, revoked or changed any Tax election or method of Tax accounting or settled or
compromised any liability with respect to Taxes;



     (l) incurred any Indebtedness, or made any loan to or guaranteed any Indebtedness of any
Person, other than the ICON Capital Financing Guaranty, the Convertible Promissory Notes or in the
Ordinary Course of Business;



     (m) failed to pay any creditor any material amount owed to such creditor when due;



     (n) (i) granted any increase, or announced any increase, in the wages, salaries, compensation,
bonuses, incentives, pension or other benefits payable to any Business Employee for which the
Company would be liable, including any increase or change with respect to any U.S. Business
Employee pursuant to any Warranting Party U.S. Plan or (ii) established or increased or promise to
increased any benefit under any Warranting U.S. Party Plan or



25









 




Warranting Party non-U.S. Plans, in either case except (A) as required by Law or any
collective bargaining agreement, (B) for ordinary increases in wages or salaries in the Ordinary
Course of Business or (C) in the case of the Seller Group and the Company Group, upon termination
of the salary reduction program implemented by the Company in April 2009 and described in the SEC
Documents;




     (o) entered into any agreement, arrangement or transaction with any of its directors,
officers, employees or stockholders (or with any relative, beneficiary, spouse or Affiliate of such
Persons) to which it has any current obligations, other than (i) pursuant to customary employment
Contracts required by Law, (ii) as disclosed in the SEC Documents or (iii) entered into in the
Ordinary Course of Business;



     (p) (i) allowed any Permit that is material to the Business and was issued to or relates to
any member of the Warranting Party Group to lapse or terminate or (ii) failed to renew any
insurance policy or Permit that is material to the Business that is scheduled to terminate or
expire within forty-five (45) days of the Closing;



     (q) suffered any material casualty loss or damage with respect to any of the assets and
properties of its Business, not covered by insurance (except for deductible amounts with respect
thereto);



     (r) except as set forth in Section 3.11(r) of the Relevant Disclosure Schedule,
amended, modified or terminated any Material Contract or any member of the Warranting Party Group’s
rights thereunder;



     (s) (i) abandoned, sold, assigned or granted any security interest in or to any of its
Business Intellectual Property or Business IP Agreements, including failing (A) to perform or cause
to be performed all applicable filings and recordings or (B) to pay or cause to be paid all
required fees and taxes to maintain and protect its interest in such Intellectual Property, (ii)
granted to any third party any license, covenant not to assert, non-compete or similar right with
respect to any of its Business Intellectual Property, other than non-exclusive licenses to the
customers of the Warranting Party Group in the Ordinary Course of Business, (iii) developed,
created or invented any Intellectual Property jointly with any third party (other than such joint
development, creation or invention with a third party that is in progress prior to the Reference
Date), or (iv) disclosed, or allowed to be disclosed, any confidential Intellectual Property
material to the Business, unless such Intellectual Property is subject to a confidentiality or
non-disclosure covenant protecting against further disclosure thereof;



     (t) suffered any Material Adverse Effect;



     (u) settled any Claim which has resulted or is expected to result in payments, whether
individually or in the aggregate, exceeding US$200,000; or



     (v) agreed, whether in writing or otherwise, to take any of the actions specified in this
Section 3.11 or granted any options to purchase, rights of first refusal, rights of first offer or
any other similar rights or commitments with respect to any of the actions specified in this
Section 3.11, except as expressly contemplated by this Share Purchase Agreement and the other
Transaction Documents.



     Section 3.12 Litigation and Claims.



     (a) Except as set forth in Section 3.12(a) of the Relevant Disclosure Schedule (each,
a “Pending Claim”), there is no civil, criminal, administrative or other Action, suit,
shareholder suit or derivative action demand, claim, hearing, proceeding or investigation pending,
or to the Knowledge of the Warranting Party threatened (including “cease and desist” letters or
invitations to take a license), (i) against any member of the Warranting Party Group that relates
to its Business; (ii) to which any member of such Warranting Party Group is otherwise a party with
respect to its Business; or (iii) by which any of their respective assets or properties (in the
case of those Persons other than the Company Group, to the extent they relate to the Business of
the Warranting Party) or its Business Assets are bound.



     (b) There is no civil, criminal or administrative Claim by or against any member of the
Warranting Party Group (i) relating to its Business or (ii) affecting any of its Business Assets or
its Business pending before any



26









 




Government Entity (or, to the Knowledge of the Warranting Party, threatened to be brought by
or before any Government Entity). No member of the Warranting Party Group in respect of its
Business, or any of its Business Assets, is subject to any Order (nor, to the Knowledge of the
Warranting Party, are there any such Orders threatened to be imposed by any Government Entity).




     (c) None of the Pending Claims of the Warranting Party Group or, to the Warranting Party’s
Knowledge, currently threatened Claims, (i) will have a material adverse impact on the consummation
or completion of the Contemplated Transactions and (ii) would reasonably be expected to have a
Material Adverse Effect with respect to the Warranting Party Group’s Business or its Business
Assets.



     Section 3.13 Compliance with Laws.



     (a) (i) Each member of the Warranting Party Group has conducted and continues to conduct its
respective Business in compliance with applicable Laws and Orders in all material respects, (ii)
there is no material violation of any Law or Order applicable to the Warranting Party’s Business or
its Business Assets, and (iii) all Permits that are necessary to the conduct or operation of the
Business as presently conducted and operated by such Warranting Party have been obtained and are in
full force and effect and shall continue to be in full force and effect following the Closing in
accordance with their terms.



     (b) The Warranting Party Group has not received any notice or other communication (whether
oral or written) from any Government Entity or any other Person in connection with its Business
regarding any actual, or alleged violation of, or failure on the part of the Warranting Party Group
to comply with any Law relating to its Business.



     Section 3.14 Contracts. (a) Except for (i) the Contracts listed in Section
3.14(a) of the Relevant Disclosure Schedule (each a “Material Contract”) and (ii) the
Transaction Term Sheet, the Transaction Documents and any other documents for consummating the
Contemplated Transactions, no member of the Warranting Party Group is a party to, bound by or
subject to, any of the following Contracts necessary to or principally used in the conduct or
operation of the Business as presently conducted and operated by the Warranting Party:




     (i) any Contract involving consideration or annual expenditure in excess of US$100,000
in the aggregate (excluding any Warranting Party Plans);




     (ii) any Business IP Agreement (other than licenses of Off-the-Shelf Software);




     (iii) any Contract relating to Indebtedness of any member of the Warranting Party Group
that involves Liabilities in excess of $100,000 in the aggregate;




     (iv) any Contract with any Government Entity;




     (v) any Contract that limits or purports to limit the ability of Warranting Party Group
to (A) engage in its Business or carry on or expand the geographical scope of the Business
anywhere in the world; (B) manufacture, market, sell, conduct research and development for
or provide services for any products, equipment, goods or services of its Business; or (C)
source, purchase or procure from any Person any materials, supplies, merchandise and other
goods for its Business;




     (vi) any Contract in connection with Affiliate Transactions;




     (vii) any Contract entered into outside the Ordinary Course of Business that involves
an amount in excess of US$100,000;




     (viii) any joint venture, partnership or similar agreement involving a sharing of
profits, losses, costs or liabilities with any other Person;



27









 






     (ix) any Contract granting any Person any right to purchase any of its Business Assets
(other than in the Ordinary Course of Business) or any of the Equity Interest of the Company
or any equity, voting or other interest of any of the Company’s Subsidiaries;




     (x) any Contract providing for the acquisition or disposition after the Reference Date
of any Business Asset of the Warranting Party other than in the Ordinary Course of Business;




     (xi) any Contract providing for a power of attorney currently in effect on any member
of the Warranting Party Group (with respect to its Business or Business Assets);




     (xii) any Contract relating to warranties, guaranties and/or other similar undertakings
with respect to its Business Products other than in the Ordinary Course of Business;




     (xiii) any lease or similar agreement under which any member of the Warranting Party
Group is a lessor or sublessor of, or makes available for use by any third party, any of its
Owned Real Property;




     (xiv) any Contract providing for payments to or by any Person based on sales, purchases
or profits, other than direct payments for its Business Products;




     (xv) any Contract that contains or provides for any express undertaking by any member
of the Warranting Party Group to be responsible for damages not directly caused by such
member’s breach of such Contract, other those entered in the Ordinary Course of Business;




     (xvi) any collective bargaining agreement;




     (xvii) any Contract providing for any franchise agreement between any member of the
Warranting Party Group and any other Person; or




     (xviii) any other Contract, whether or not made in the Ordinary Course of Business, the
absence of which would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.



     (b) Each of the Material Contracts (i) constitutes a valid and binding obligation of the
Warranting Party and, to the Warranting Party’s Knowledge, the other parties thereto in accordance
with its terms, subject to the Bankruptcy Exception, and is in full force and effect pursuant to
its terms, and (ii) subject to the requirements for obtaining consent for the assignment or
transfer of the Material Contracts as set forth in Section 3.14(b) of the Relevant Disclosure
Schedule, upon consummation of the transactions contemplated by this Share Purchase Agreement
and the other Transaction Documents, shall continue in full force and effect in accordance with its
terms without penalty or other adverse consequence. Such Warranting Party has made available to
the Warrantee Party true and complete copies of all Material Contracts.



     (c) No member of the Warranting Party Group is in breach of, or default under, in any material
respect, any Material Contract. No member of the Warranting Party Group has been notified in
writing of any actual or alleged breach of, or default under, any Material Contract. To the
Knowledge of such Warranting Party, no other party to any Material Contract is in breach thereof or
default thereunder and there is not any pending or threatened cancellation of any Material
Contract, or any event which, after notice or lapse of time or both, would constitute a default
under any Material Contract.



     Section 3.15 Customers. Set forth in Section 3.15 of the Relevant Disclosure
Schedule are the names and addresses of each of the fifteen largest customers (by revenue) of
the Business of the Warranting Party Group for the twelve-month period ended December 31, 2009 and
the amount for which each such customer was invoiced during such period. No member of the
Warranting Party Group has received any notice or has any reason to believe that any significant
customer of its Business has ceased, or will cease, to use the products, equipment, goods or
services of its Business or the Warranting Party Group, or has substantially reduced, or will
substantially reduce, the use of such products, equipment, goods or services at any time.



28









 





     Section 3.16 Suppliers. Set forth in Section 3.16 of the Relevant Disclosure
Schedule are the names and addresses of each of the fifteen largest suppliers (by amount of
purchases) of materials, supplies, merchandise and other goods for the Business of the Warranting
Party Group for the twelve-month period ended December 31, 2009 and the amount relating to its
Business for which each such supplier invoiced the Warranting Party Group during such period. The
Warranting Party Group has not received any notice or have any reason to believe that any such
supplier will not sell materials, supplies, merchandise and other goods to its Business or to the
Company Group at any time after the Closing on terms and conditions substantially similar to those
used in its current sales to its Business, subject only to general and customary price increases.



     Section 3.17 Tax Matters.



     (a) (i) All Tax Returns required to be filed by the Warranting Party Groups regarding the
Business have been timely filed; (ii) all material Taxes requested to be shown on such Tax Returns
or otherwise due in respect of the Business of such Warranting Party Group have been timely paid;
(iii) all such Tax Returns are true, correct and complete in all material respects; (iv) no
adjustment relating to such Tax Returns has been proposed formally or informally by any Government
Entity and, to the best Knowledge of the Warranting Party after due inquiry, no basis exists for
any such adjustment; (v) there are no pending or, to the Knowledge of the Warranting Party,
threatened Claims for the assessment or collection of Taxes regarding the Business against the
Warranting Party Group; (vi) there are no Tax liens, except for Permitted Encumbrances, on any
Transferred Business Assets; (vii) each member of the Warranting Party Group has properly and
timely withheld, collected and deposited all Taxes that are required to be withheld, collected and
deposited under applicable Law with respect to its Business; (viii) no member of the Warranting
Party Group is engaged in or conducting the Business in any jurisdiction in which it has not filed
all required Tax Returns; and (ix) no member of the Warranting Party Group has any Liability
regarding the Business for the Taxes of any Person.



     (b) There are no outstanding waivers or agreements extending the statute of limitations for
any period with respect to any Tax regarding the Business to which any member of the Warranting
Party Group may be subject.



     (c) Each member of the Warranting Party Group has, with respect to itself, its Transferred
Subsidiaries and its Transferred Business Assets in accordance with applicable Law, duly registered
with the relevant Government Entities, obtained and maintained the validity of all national and
local tax registration certificates and complied with all requirements imposed by such Government
Entities. No submissions made to any Government Entity in connection with obtaining Tax
exemptions, Tax holidays, Tax deferrals, Tax incentives or other preferential Tax treatments or Tax
rebates related to the Business contained any misstatement or omission that would have affected the
granting of such Tax exemptions, preferential treatments or rebates. No suspension, revocation or
cancellation of any such Tax exemptions, preferential treatments or rebates relating to the
Business is pending or, to the Knowledge of the Warranting Party, threatened.



     (d) Section 3.17(d) of the Relevant Disclosure Schedule lists (i) all Tax exemptions,
Tax holidays, Tax deferrals, Tax incentives and other preferential Tax treatments and entitlements
to Tax rebates applicable to the Warranting Party Group in respect of its Business, including any
applicable future expiration dates or scheduled changes, and (ii) all Tax rulings issued by any
Government Entity in respect of the Business of the Warranting Party Group. Except as specifically
described in Section 3.17(d) of the Relevant Disclosure Schedule, the Warranting Party
Group is entitled under applicable Law to (i) all Tax exemptions, Tax holidays, Tax deferrals, Tax
incentives and other preferential Tax treatments and entitlements to Tax rebates set forth in
Schedule 3.17(d) of the Relevant Disclosure Schedule and (ii) all other Tax exemptions, Tax
holidays, Tax deferrals, Tax incentives and other preferential Tax treatments and entitlements to
Tax rebates that the Warranting Party Group have claimed in the Seller Historical Financial
Statements (with respect to Seller Group) or the Business Financial Statements or is claiming or
receiving as of the date hereof with respect to its Business.



     (e) With respect to the Seller as Warranting Party, the Company Group has complied with
applicable Law with respect to transfer pricing and has observed arm’s length principle with
respect to related party transactions with respect to its Business (each, a “Business Related
Party Transaction”). There are necessary documentation in place to justify and support its
Business Related Party Transactions and such Business Related



29









 




Party Transactions are not subject to any material disputes with relevant Government Entity
for material adjustment, which may give rise to additional Tax liabilities other than those duly
paid or accrued by Closing or reduce the utilizable Tax losses based on Tax Returns duly filed. For
purposes of corporate income Taxes, each member of the Company Group is and has been resident only
in the jurisdiction in which it is incorporated and does not have nor had a permanent establishment
or permanent representative or other taxable presence in any jurisdiction other than that in which
it is resident for such purpose.




     Section 3.18 Employee Matters.



     (a) U.S. Employee Matters.




     (i) Section 3.18(a)(i) of the Relevant Disclosure Schedule lists (1) all
employee benefit plans (as defined in Section 3(3) of ERISA) and all bonus, stock option,
stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life
insurance, supplemental retirement, severance or other benefit plans, programs or
arrangements and employment, termination, severance or other Contracts, which are
maintained, contributed to or sponsored by any member of any Warranting Party Group for the
benefit of any U.S. Business Employee, and (2) any Contracts (other than stock option
agreements, restricted stock and restricted stock unit agreements and similar agreements for
equity compensation and benefit awards under plans approved by the board of directors of the
Warranting Party) between any Warranting Party and any U.S. Business Employee (collectively,
the “Warranting Party U.S. Plans”). The Warranting Party Group has made available
to the Warrantee Party a true and complete copy of each such Warranting Party U.S. Plan.




     (ii) Section 3.18(a)(ii) of the Seller and Company Disclosure Schedule lists all
Warranting Party U.S. Plans that are maintained by or sponsored by the Transferred
Subsidiaries (collectively, the “Transferred Warranting Party U.S. Plans”). The
Seller Group has made available to the Purchaser a true and complete copy of the most recent
summary plan description for each Transferred Warranting Party U.S. Plan for which a summary
plan description is required by applicable Law, and the most recently prepared actuarial
report or financial statement, if any, relating to a Transferred Warranting Party U.S. Plan.
Except as contemplated in the Transaction Documents or the Transferred Warranting Party
U.S. Plans, the Seller Group does not have any express or implied commitment (1) to modify,
change or terminate any Transferred Warranting Party U.S. Plan or (2) to increase the level
of compensation payable under any Transferred Warranting Party U.S. Plan, with respect to
any U.S. Business Employee (other than in the case of the Seller Group and the Company
Group, as described in the SEC Documents or upon termination of the salary reduction program
implemented by the Company in April 2009 and described in the SEC Documents).




     (iii) Each Transferred Warranting Party U.S. Plan is now and always has been operated
in all material respects in accordance with its terms and the requirements of applicable
Laws. The Seller Group has performed all obligations in all material respects required to
be performed under, and is not in any material respect in default under, or in violation of,
any Transferred Warranting Party U.S. Plan.




     (iv) Neither the execution and delivery of this Share Purchase Agreement or any
Transaction Document nor the consummation of the Contemplated Transactions, either alone or
in combination with any other event (whether contingent or otherwise) will (A) entitle any
of the Warranting Group’s U.S. Business Employees to any increased or modified benefit or
payment, (B) increase the amount of compensation due to any of its U.S. Business Employees,
or (C) accelerate the vesting, payment or funding of any compensation, equity-based award or
benefit, incentive or other benefit, for which, in the case of each of clauses (A), (B) and
(C), the Company Group will be liable, obligated or responsible;




     (v) There are no material controversies pending or, to the Knowledge of the Warranting
Party, threatened between the Warranting Party Group and any of its U.S. Business Employees
relating to employment practices of the Warranting Party Group. None of the members of the
Warranting Party Group is a party to any collective bargaining agreement or other labor
union contract applicable to the U.S.



30









 







Business Employees. None of the U.S. Business Employees of any Warranting Party are
represented by a labor union, nor, to the Knowledge of the Warranting Party, are there any
activities or proceedings of any labor union to organize any of its U.S. Business Employees.
Except as provided in Section 3.18(a)(v) of the Relevant Disclosure Schedule, none
of the members of the Warranting Party Group has breached or otherwise failed to comply with
any provision of any such agreement or Contract, and there are no outstanding grievances
under any such agreement or Contract; and there is no charge pending or, to the Knowledge of
the Warranting Party, threatened before any court or agency alleging unlawful discrimination
in employment practices or any unfair labor practice by the Warranting Party Group with
respect to any U.S. Business Employee nor, to the Knowledge of each Warranting Party, is
there a basis for any such claim. There is no strike, slowdown, labor picketing, work
stoppage or lockout, or, to the Knowledge of the Warranting Party, threat thereof, by or
with respect to any of its U.S. Business Employees.




     (vi) Each member of a Warranting Party Group is in compliance in all material respects
with all applicable Laws and Orders relating to the employment of its U.S. Business
Employees, including all federal, state and local laws respecting employment and employment
practices, terms and conditions of employment, collective bargaining, immigration, wages,
hours and benefits, non-discrimination in employment, workers compensation and the payment
and withholding of Taxes and other sums as required by the appropriate Government Entity and
have withheld and paid to the appropriate Government Entity or are holding for payment not
yet due to such Government Entity all amounts required to be withheld from the U.S. Business
Employees and are not liable for any arrears of wages, Taxes, penalties or other sums for
failure to comply with any of the foregoing. Except as set forth in Section 3.12(a) of
the Relevant Disclosure Schedule, such Warranting Party Group has paid in full to all
U.S. Business Employees or adequately accrued for in accordance with generally accepted
accounting principles applicable to such Warranting Party Group consistently applied, all
wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf
of its U.S. Business Employees and there is no Claim with respect to payment of wages,
salary or overtime pay that has been asserted or is now pending or threatened before any
Government Entity with respect to any of its U.S. Business Employees. Since December 31,
2008, the Warranting Party Group has not been cited, charged, fined or, to its Knowledge,
investigated by any Government Entity relating to U.S. Business Employees or employment
practices before any Government Entity in any jurisdiction in which the U.S. Business
Employees provide services.



     (b) Non-U.S. Business Employee Matters.




     (i) Section 3.18(b)(i) of the Relevant Disclosure Schedule lists (A) all
employee benefit plans and bonus, stock option, stock purchase, restricted stock, incentive,
deferred compensation, retiree medical or life insurance, supplemental retirement, severance
or other benefit plans, programs or arrangements and employment, termination, severance or
other Contracts, with respect to which any Transferred Subsidiary has any obligation or
which are maintained, contributed to or sponsored by any Transferred Subsidiary for the
benefit of any Non-U.S. Business Employee, and (B) any Contracts (other than stock option
agreements, restricted stock and restricted stock unit agreements and similar agreements for
equity compensation and benefit awards under plans approved by the board of directors of the
Seller) between any Transferred Subsidiary and any Non-U.S. Business Employee (collectively,
the “Warranting Party non-U.S. Plans”). Each Warranting Party Group have made
available to the Warrantee Party a true and complete copy of (1) each such Warranting Party
non-U.S. Plan, (2) the most recent summary plan description for each Warranting Party
non-U.S. Plan for which a summary plan description is required by applicable law, and (3)
the most recently prepared actuarial report or financial statement, if any, relating to a
Warranting Party non-U.S. Plan. Except as contemplated in the Transaction Documents or the
Warranting Party’s non-U.S. Plans, the Warranting Party Group does not have any express or
implied commitment (w) to create, incur liability with respect to or cause to exist any
other employee benefit plan, program or arrangement with respect to the Business (other than
stock option agreements, restricted stock and restricted stock unit agreements and similar
agreements for equity compensation and benefit awards under plans approved by the Board of
Directors of the Seller), (x) to enter into any Contract to provide compensation or benefits
to any Non-U.S. Business Employee, (y) to modify, change or terminate any



31









 







Warranting Party non-U.S. Plan or (z) to increase the level of compensation payable
under any Warranting Party non-U.S. Plan, in each of clauses (w), (x), (y) and (z) with
respect to any Non-U.S. Business Employee (other than in the case of the Seller Group and
the Company Group, as described in the SEC Documents or upon termination of the salary
reduction program implemented by the Company in April 2009 and described in the SEC
Documents).




     (ii) Each Warranting Party non-U.S. Plan is now and always has been operated in all
material respects in accordance with its terms and the requirements of all applicable Laws.
The Warranting Party Group has performed all obligations in all material respects required
to be performed under, and is not in any respect in default under or in violation of, in any
material respect, any Warranting Party non-U.S. Plan. No civil, criminal or administrative
Claim is pending before any Government Entity or, to the Knowledge of the Warranting Party,
threatened to be brought by or before any Government Entity with respect to any Warranting
Party non-U.S. Plan (other than claims for benefits in the Ordinary Course of Business).




     (iii) All contributions, premiums or payments required to be made with respect to any
Warranting Party non-U.S. Plan have been made on or before their due dates. All such
contributions have been fully deducted for income Tax purposes and no such deduction has
been challenged or disallowed by any Government Entity and no fact or event exists which
could reasonably be expected to give rise to any such challenge or disallowance.




     (iv) The Warranting Party Group has made all social security contributions (including
contributions to all mandatory provident fund schemes) in respect of or on behalf of all
Non-U.S. Business Employees in accordance with applicable Law. Neither the execution and
delivery of this Share Purchase Agreement or any other Transaction Document, nor the
consummation of the Contemplated Transactions, either alone or in combination with another
event (whether contingent or otherwise) will (i) entitle any of its Non-U.S. Business
Employees to any increased or modified benefit or payment, (ii) increase the amount of
compensation due to any of its Non-U.S. Business Employees, or (iii) accelerate the vesting,
payment or funding of any compensation, equity-based award or benefit, incentive or other
benefit, for which, in the case of each of clauses (i), (ii) and (iii), the Company Group
will be liable, obligated or responsible.




     (v) Except as set forth in Section 3.18(b)(v) of the Relevant Disclosure
Schedule, there are no material controversies pending or, to the Knowledge of the
Warranting Party, threatened between the relevant Warranting Party Group and any of its
Non-U.S. Business Employees relating to employment practices of the Warranting Party Group.
None of members of the Warranting Party Group is a party to any collective bargaining
agreement or other labor union contract applicable to the Non-U.S. Business Employees, nor,
to the Knowledge of the Warranting Party, are there any activities or proceedings of any
labor union to organize any of its Non-U.S. Business Employees. None of the members of the
Warranting Party Group has breached or otherwise failed to comply with any provision of any
such agreement or Contract, and there are no outstanding grievances under any such agreement
or Contract. There is no strike, slowdown, work stoppage or lockout, or, to the Knowledge
of the Warranting Party, threat thereof, by or with respect to any of its Non-U.S. Business
Employees.




     (vi) Each member of the Warranting Party Group is in compliance in all material
respects with all applicable Laws and Orders relating to the employment of its Non-U.S.
Business Employees, including those related to wages, hours and the payment and withholding
of Taxes and other sums as required by the appropriate Government Entity and have withheld
and paid to the appropriate Government Entity or are holding for payment not yet due to such
Government Entity all amounts required to be withheld from the Non-U.S. Business Employees
and are not liable for any arrears of wages, Taxes, penalties or other sums for failure to
comply with any of the foregoing. Except as set forth in Section 3.12(a) of the
Relevant Disclosure Schedule, the Warranting Party Group has paid in full to all
Non-U.S. Business Employees or adequately accrued for in accordance with generally accepted
accounting principles applicable to such Warranting Party Group consistently applied, all
wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf
of its Non-U.S. Business Employees and there is no claim with respect to payment of wages,
salary or overtime pay that has been asserted or is now pending or



32









 







threatened before any Government Entity with respect to any of its Non-U.S. Business
Employees. Since December 31, 2008, the Warranting Party Group has not been cited by any
Government Entity relating to employees or employment practices before any Government Entity
in any jurisdiction in which the Non-U.S. Business Employees provide services.



     Section 3.19 Employees.



     (a) U.S. Employees




     (i) Except where prohibited by applicable data privacy Laws, the Warranting Party has
provided to the Warrantee Party a true, complete and correct list of the details of each
U.S. Business Employee, including employer; name; job title; current compensation paid or
payable, deferred or contingent compensation and change in compensation since January 1,
2009 through December 31, 2009; vacation accrued and service credited for purposes of
vesting and eligibility to participate in any of the Warranting Party Plans.




     (ii) Except where prohibited by applicable data privacy Laws, the Warranting Party has
provided to the Warrantee Party a true, complete and correct list of all management,
technology and research and development U.S. Business Employees whose services are necessary
for the full function of the Business of the Warranting Party (with respect to each
Warranting Party, the “Key Business U.S. Employees” of such Warranting Party).



     (b) Non-U.S. Employees




     (i) Subject to applicable data privacy laws, the Warranting Party has provided to the
Warrantee Party a true, complete and correct list of the details of each Non-U.S. Business
Employee, including employer; name; job title; current compensation paid or payable,
deferred or contingent compensation and change in compensation since January 1, 2009 through
December 31, 2009; vacation accrued and service credited for purposes of vesting and
eligibility to participate in any of the Warranting Party Plans.




     (ii) Subject to applicable data privacy laws, the Warranting Party has provided to the
Warrantee Party a true, complete and correct list of all management, technology and research
and development Non-U.S. Business Employees whose services are necessary for the full
function of the Business of the Warranting Party (with respect to each Warranting Party, the
“Key Business Non-U.S. Employees” of such Warranting Party, and collectively with
the Key Business U.S. Employees, the “Key Business Employees”).



     Section 3.20 Certain Interests.



     (a) No officer or director of any member of the Warranting Party Group who is a Business
Employee and no relative or spouse (or relative of such spouse) who resides with, or is a dependent
of, any such officer or director:




     (i) has any direct or indirect financial interest in any competitor, supplier or
customer of the Business of the Warranting Party Group (except that the ownership by such
officer or director (and by its relatives or spouse) of less than 2% of the outstanding shares of stock in publicly-traded entities shall not be deemed to be such a “financial
interest” for purposes of this Section 3.20);




     (ii) owns, directly or indirectly (other than through ownership of stock of a party),
in whole or in part, or has any other interest in, any tangible or intangible property that
the Warranting Party Group uses in the conduct of its Business;



33









 






     (iii) has outstanding any Indebtedness to any member of the Company Group, except for
travel and other advances of cash to cover reimbursable travel and similar expenses incurred
while performing Company duties in the Ordinary Course of Business, relocation advances
subject to repayment, compensation (such as bonuses) that may be subject to repayment,
advances in respect of any indemnification payments, tax-indemnity payments to
overseas-based officers or loans from 401k plans or “cashless” exercise of stock options
through arrangements with brokers; or




     (iv) has outstanding any Indebtedness in the nature of a personal loan to or for any
director or executive officer of the Seller.



     (b) No member of the Warranting Party Group has any Liability of any nature to any officer or
director of any member of the Company Group or to any relative or spouse (or relative of such
spouse) who resides with, or is a dependent of, any such officer or director, except pursuant to
Warranting Party Plans and employment Contracts.



     Section 3.21 Intellectual Property.



     (a) List of Intellectual Property. Section 3.21(a) of the Relevant Disclosure
Schedule contains, for the Warranting Party, a complete and accurate list and summary
description of (i) Owned Intellectual Property that is Registered to such Warranting Party,
indicating for each such item, as applicable, the application or registration number, date and
jurisdiction of filing or issuance, and the identity of the current applicant or registered owner,
(ii) unregistered Trademarks and service marks included in the Owned Intellectual Property of the
Warranting Party; (iii) Business IP Agreements (other than licenses of Off the-Shelf Software) and
(iv) Owned Software and Licensed Software material to the Business of the Warranting Party.



     (b) Ownership; Sufficiency. The Warranting Party Group owns or has sufficient
licenses or other rights to use its Business Intellectual Property and Business IT Assets in
connection with the operation of its respective Business, all of which rights, subject to receipt
of the Third Party Approvals of the Warranting Party Group, shall continue to be in full force and
effect following the consummation of the Contemplated Transactions. The Business Intellectual
Property of the Warranting Party constitutes all Intellectual Property necessary to or used in the
conduct or operation of the Business of the Warranting Party, as currently conducted and operated
and as to enable the Company to conduct the Business following the Closing.




     (i) A member of the Warranting Party Group is the exclusive owner of all right, title
and interest in and to each item of its respective Owned Intellectual Property, free and
clear of all Encumbrances other than the Permitted Encumbrances and a Warranting Party has a
valid license to use all of its respective Licensed Intellectual Property in connection with
the operation of its Business, subject only to the terms of its Business IP Agreements; and




     (ii) Immediately following the Restructuring or the Closing, as applicable, (A) a
member of the Company Group shall be the exclusive owner of all right, title and interest in
and to each item of the Owned Intellectual Property of the Warranting Party, free and clear
of all Encumbrances other than Permitted Encumbrances, (B) a member of the Company Group
shall have a valid license to use all Owned Intellectual Property of the Warranting Party
other than the Transferred Owned Intellectual Property transferred to the Company Group from
the Warranting Party Group and (C) subject to the receipt of the third-party approvals set
forth in Section 3.21(b) of the Relevant Disclosure Schedule, a member of the
Company Group shall have a valid license to use all material Licensed Intellectual Property
in connection with the operation of the Business of the Warranting Party, subject to the
terms of its respective Business IP Agreements and (C) subject to the receipt of the
Third-Party Approvals, pursuant to the Intellectual Property Agreements, a member of the
Company Group shall have a valid license to use all other material Intellectual Property of
the Warranting Party necessary to or used in the conduct or operation of the Business,
subject to the terms of the Intellectual Property Agreements and any applicable Business IP
Agreements.



34









 





     (c) Validity and Enforceability. To the Knowledge of the Warranting Party (which
shall be deemed for purposes of this Section 3.21(c) only to include the knowledge of such senior
personnel responsible for managing the Intellectual Property of the Business), the rights to its
Owned Intellectual Property and Licensed Intellectual Property are valid and enforceable. The
Owned Intellectual Property of each Warranting Party and the Licensed Intellectual Property of such
Warranting Party are subsisting and not subject to any outstanding court or regulatory order,
judgment, injunction, decree, ruling or agreement adversely affecting any Warranting Party’s or the
relevant Warranting Party Group’s use thereof or rights thereto, or that would impair the validity
or enforceability thereof in any material respect. There is no Claim pending, asserted or, to the
Knowledge of the Warranting, threatened (i) by or against any member of the Warranting Party Group
concerning any of its Business Products or the ownership, validity, registerability, enforceability
or use of, or licensed right to use, any Intellectual Property, or (ii) contesting or challenging
the ownership, validity, registerability or enforceability of, or any member of the Warranting
Party Group’s, or any of its respective customers’ or licensees’ right to use, any Business
Intellectual Property or Business Product of such Warranting Party Group.



     (d) Infringement. To the Knowledge of the Warranting Party, the operation of its
Business and the use of its Business Intellectual Property, Business IT Assets and Business
Products in connection therewith do not infringe, misappropriate or otherwise violate or conflict
with the Intellectual Property rights of any other Person. Except as set forth in Section
3.21(d) of the Relevant Disclosure Schedule, there is no Claim pending, asserted or, to the
Knowledge of the Warranting Party, threatened against the relevant Warranting Party Group
concerning any of the foregoing, nor has any member of the Warranting Party Group received any
notification that a license under any other Person’s Intellectual Property is or may be required
with respect to the operation of that Business. Except as set forth in Section 3.21(d) of the
Relevant Disclosure Schedule, to the Knowledge of the Warranting Party, no Person is engaging
in any activity that infringes, misappropriates or otherwise violates or conflicts with any Owned
Intellectual Property, and there is no Claim pending, asserted or threatened by any member of such
Warranting Party Group against any other Person concerning any of the foregoing.



     (e) Protection Measures. The Warranting Party has taken and has caused each member of
the relevant Warranting Party Group to take all reasonable measures to maintain the confidentiality
of all confidential Business Intellectual Property.



     (f) Business IT Assets. The Warranting Party Group has implemented reasonable backup,
security and disaster recovery measures and technology for the Business IT Assets consistent with
industry practices, and, to such Warranting Party’s Knowledge, no Person has gained unauthorized
access to any Business IT Assets of such Warranting Party Group.



     (g) Software. The Warranting Party Group has obtained all approvals necessary for
exporting the Business Software outside the U.S. and importing the Business Software into any
country in which the Business Software is currently sold, licensed for use or otherwise
distributed, and all such approvals are valid, current and in full force and effect.



     (h) Public Software. To the Warranting Party’s Knowledge, no Public Software forms
part of or is incorporated into, in whole or in part, any Owned Software or Business Product.



     (i) Business IP Agreements. The Warranting Party has furnished to the Warrantee Party
prior to the execution and delivery of this Share Purchase Agreement true and complete copies of
all of its Business IP Agreements. No member of the Warranting Party Group has granted or is
obligated to grant any Person any exclusive rights in, to or under, or any right to license, any
Business Intellectual Property except (i) those granted or to be granted under the Contemplated
Transactions to the Warranting Party and the Warrantee Party and (ii) non-exclusive grants made by
such Warranting Party in its Ordinary Course of Business. There are no royalties, honoraria, fees
or other payments payable by the Warranting Party Group to any Person for the purchase, license,
sublicense or use of any Business Intellectual Property, except as set forth in such Business IP
Agreements.



     Section 3.22 Insurance. The Warranting Party has, for the past five (5) years,
purchased all insurance policies or binders of insurance (including general liability insurance,
property insurance and workers’



35









 




compensation insurance) required by any Law (including in such types and amounts and with such
insurance companies as required by the Law) with respect to its Business. All material assets and
properties of the Business of the Warranting Party and material risks of the Business of the
Warranting Party of the type that are customarily insured against are covered by valid and, except
for insurance policies that have expired under their terms in the Ordinary Course of Business,
currently effective insurance policies or binders of insurance (including general liability
insurance, property insurance and workers’ compensation insurance) issued in favor of the
Warranting Party Group with responsible insurance companies, in such types and amounts and covering
such risks as are consistent with customary practices and standards of companies engaged in
businesses and operations similar to those of the Business or the Company, as the case may be.
Section 3.22 of the Relevant Disclosure Schedule lists all material insurance policies
covering the properties and assets of the Warranting Party’s Business (consisting of policies
providing property coverage) (the “Insurance Policies”).




     Section 3.23 Real Property.



     (a) The Warranting Party Groups has good and indefeasible title to and is the record owner of
the Owned Real Property, free and clear of all Encumbrances except Permitted Encumbrances, and
except for the Leased Real Property, no Person owns any real property used by the Warranting Party
Group except the Warranting Party Group. Except as set forth in Section 3.23(a) of the Relevant
Disclosure Schedule, none of the Owned Real Property is subject to any right or option of any
other Person to purchase or lease an interest in such Owned Real Property, and no Person other than
a member of such Warranting Party Group has any right to use, occupy or lease any of the Owned Real
Property (other than any right pursuant to a Permitted Encumbrance). The Warranting Party Group is
not obligated to mortgage any of the Owned Real Property or to acquire fee ownership of any real
property subject to a mortgage.



     (b) Each of the Leases (including any option to purchase contained therein) is legal, valid,
binding and enforceable against the Warranting Party Group and in full force and effect and, to the
Knowledge of the Warranting Party, (i) is enforceable against the landlord which is party thereto
in accordance with its terms, and (ii) there exists no material default or event of default (or any
event that with notice or lapse of time or both would become a material default or event of
default) on the part of a member of the Warranting Party Group under any Lease. No lessor has any
right of termination or cancellation under any Lease, except as set forth in such Lease. No member
of such Warranting Party Group has assigned or sublet its interest under any Lease, except as set
forth in Section 3.23(b) of the Relevant Disclosure Schedule.



     (c) To the Knowledge of the Warranting Party, the relevant Warranting Party Group, with
respect to any part of the Owned Real Property or the Leased Real Property, are not (i) in
violation of any zoning, subdivision or building Law applicable thereto; (ii) subject to the taking
by condemnation, expropriation or eminent domain any part of such property; (iii) subject to the
commencement of enforcement proceedings with respect to delinquent Taxes; or (iv) in violation of a
condition or agreement contained in any easement, restrictive covenant or any similar instrument or
agreement.



     (d) (i) To the extent principally used in the conduct or operation of the Business as
presently conducted and operated by the Warranting Party Group, each of the buildings, structures,
equipment and other tangible assets of the Warranting Party Group on the Owned Real Property and
Leased Real Property is in good and usable condition, subject to normal wear and tear and normal
industry practice with respect to maintenance, and is adequate and suitable for the purposes for
which it is presently being used, (ii) the Warranting Party Group has rights of egress and ingress
with respect to each of the Owned Real Properties and Leased Real Properties that is sufficient for
them to conduct the business conducted thereat consistent with past practice and (iii) to the
Warranting Party’s Knowledge, there are no material defects in or other material adverse conditions
affecting the Owned Real Property or Leased Real Property.



     Section 3.24 Tangible Personal Property. The Warranting Party Group has good and
valid title to or, in the case of leased assets, valid, binding and enforceable leasehold interests
in, all tangible personal property or assets that are necessary to or principally used for the
conduct and operations of its Business free and clear of any Encumbrances, other than the Permitted
Encumbrances.



36









 





     Section 3.25 Environmental Matters.



     (a) The Business is and has been operated by the Warranting Party Group in substantial
compliance with all applicable Environmental Laws and Environmental Permits.



     (b) During the period of time the Seller Group has had any rights with respect to the Business
Real Property, there has been no release of any Hazardous Material on any Business Real Property in
a manner that has given or would give rise to Liabilities, including any Liability for response
costs, corrective action costs, personal injury, property damage, natural resources damages or
attorney fees, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, the Solid Waste Disposal Act, as amended, or any other Environmental Laws.



     (c) There are no Environmental Claims pending or threatened against the Business Real Property
or that otherwise relate to the Business, and, to the Knowledge of the Warranting Party, there are
no circumstances that can reasonably be expected to form the basis of any such Environmental Claim.



     Section 3.26 Product Warranties and Liabilities.



     (a) Section 3.26(a) of the Relevant Disclosure Schedule sets forth the standard
policies of the Business of the Warranting Party Group with respect to guarantees, warranties or
representations given by any member of the Warranting Party Group or the Company Group in
connection with products or services manufactured, sold or supplied (or contracted so to do) by any
of them in connection with the Business.



     (b) No member of the Warranting Party Group has received written notice of any Claim and, to
the Warranting Party’s Knowledge, there is no basis for any present or future Claim for replacement
or repair of any Business Products, subject to any such Claims within the reserve for product
warranty claims set forth in the Business Financial Statements (but excluding any notes thereto) as
adjusted for the passage of time through the Closing Date in accordance with the past customs and
practices of such Warranting Group. No Business Product is subject to any material guaranty,
warranty or other indemnity beyond the applicable standard terms and conditions of sale or lease.



     (c) No member of the Warranting Party Group has received written notice of any Claim and, to
the relevant Warranting Party’s Knowledge, there is no basis for any present or future Claim
arising out of any injury to individuals or property as a result of the ownership, possession or
use of any Business Product.



     Section 3.27 Brokers; Finders and Fees. Except for the financial advisors of the
Warranting Party identified on Section 3.27 of the Relevant Disclosure Schedule, whose fees
will be paid by such Warranting Party, neither the Warranting Party nor its Affiliates have
incurred any obligation or liability, contingent or otherwise, for brokerage, finder’s fees, fees
for financial advisory services or agents’ commissions or other payments in connection with this
Share Purchase Agreement, the other Transaction Documents or the Contemplated Transactions for
which the Company or the Warrantee Party is or could become liable.



     Section 3.28 Certain Business Practices.



     (a) None of the members of the Warranting Party Group or any of their respective directors,
officers, agents, representatives or employees (in their capacity as directors, officers, agents,
representatives or employees) has: (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity in respect of its Business;
(ii) directly or indirectly, paid or delivered any fee, commission or other sum of money or item of
property, however characterized, in connection with its Business, to any finder, agent, or other
party acting on behalf of or under the auspices of a governmental official or Government Entity,
which is in any manner illegal under any Law having jurisdiction; or (iii) made any payment to any
customer or supplier of its Business or any officer, director, partner, employee or agent of any
such customer or supplier for an unlawful reciprocal practice, or made any other unlawful payment
or given any other unlawful consideration to any such customer or supplier or any such officer,
director, partner, employee or agent, in respect of its Business.



37









 





     (b) To the extent applicable to it, no member of the Warranting Party Group or any director or
executive officer of such member is aware of or has taken any action, directly or indirectly, that
has resulted or will result in a violation by such Persons of the FCPA, including the rules and
regulations thereunder (including, without limitation, making use of the mail or any means or
instrument of U.S. interstate commerce in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA) in connection with such Warranting Party Group’s
Business. To the extent such provisions are applicable, each member of the Warranting Party Group
has conducted its respective Business in compliance with the FCPA and has instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.



     Section 3.29 Full Disclosure. The Warranting Party is not aware of any facts
pertaining to any member of the relevant Warranting Party Group or its Business which have or would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and
which have not been disclosed in this Share Purchase Agreement (including its schedules) or
otherwise disclosed to the Warrantee Party by such Warranting Party in writing.



     Section 3.30 Liability for the Company’s Breach prior to the Closing. For the
avoidance of doubt, any breach prior to the Closing, or in connection with the Restructuring and
the transfer of the 51% of the Equity Interest of the Company to the Purchaser, of any
representation or warranty of any member of the Company Group contained in this Article III or in
Article IV shall be deemed to be a breach of such representation or warranty by the Seller.



     Section 3.31 Liability for Purchaser Holdco’s breach prior to the Closing. For the
avoidance of doubt, any breach prior to the Closing, or in connection with the Purchaser
Restructuring and the transfer of a 49% interest in Purchaser Holdco to Seller, of any
representation or warranty with respect to any member of the Purchaser Group (including Purchaser
Holdco) contained in this Article III or in Article IV shall be deemed to be a breach of such
representation or warranty by the Purchaser.



ARTICLE IV

ADDITIONAL REPRESENTATIONS AND WARRANTIES




     Section 4.1 Additional Seller and Company Representations. As an inducement to the
Purchaser to enter into this Share Purchase Agreement, the Seller and the Company hereby represent
and warrant to the Purchaser as of the date hereof and as of the Closing Date as follows (unless
such representation and warranty is provided only as of specific dates):



     (a) Organization and Qualification of the Company Group.




     (i) Following the Restructuring, each member of the Company Group shall be a business
entity duly organized, validly existing and in good standing (or its equivalent), if
applicable, under the Laws of its respective jurisdiction of organization, and shall have
all requisite corporate power and authority to own, operate or lease its properties and
assets now owned, operated or leased by it and to carry on the Business as it has been and
is presently conducted. Following the Restructuring, each member of the Company Group shall
be duly licensed or qualified to transact business and shall be in good standing (or its
equivalent), if applicable, in each jurisdiction in which the properties owned or leased by
it or the operation of its business makes such licensing or qualification necessary or
desirable All corporate actions taken by each member of the Company Group in connection
with the Contemplated Transactions have been duly authorized, and no member of the Company
Group has taken any action that in any respect conflicts with, constitutes a default under,
or results in a violation of, any provision of its Organizational Documents.



38









 






     (ii) The Seller has heretofore delivered to the Purchaser complete and correct copies
of the organizational documents (such as memoranda and articles of association) of each
member of the Company Group as presently in effect (the “Organizational Documents”).
The Company has not engaged in any activities prior to the Closing Date other than actions
necessary in connection with the Restructuring and conduct in the Ordinary Course of
Business.



     (b) Capitalization of the Company. The Seller is the sole beneficial owner and holder
of, and has good and valid title to, all of the Equity Interest representing one hundred percent
(100%) of the interest in the issued and outstanding registered capital of the Company, free and
clear of any Encumbrance, other than the Permitted Encumbrances. The Seller does not hold its
Equity Interest in the Company for any other Person pursuant to any Contract. None of the Seller’s
Equity Interest in the Company was issued or acquired in violation of any Organizational Documents,
any Law or any Encumbrance. Upon consummation of the transactions contemplated by this Share
Purchase Agreement, the Purchaser (i) will own fifty-one percent (51%) of the issued and
outstanding equity capital of the Company free and clear of all Encumbrances, and (ii) together
with the Seller, own all the issued and outstanding capital of the Company. There are no voting
trusts, proxies or Contracts in effect with respect to the voting or transfer of any of the
Purchased Equity Interest.



     (c) Valid Issuance and Preemptive Rights.




     (i) Except as set forth in Section 4.1(c)(i) of the Seller and Company Disclosure
Schedule, there are no preemptive or other outstanding rights, subscriptions, options,
warrants, convertible securities, Contracts or commitments of any character relating to the
equity or the securities of any member of the Company Group.




     (ii) Except as set forth in Section 4.1(c)(i) of the Seller and Company Disclosure
Schedule, and as contemplated in this Share Purchase Agreement, there are no voting trusts,
proxies or Contracts in effect with respect to the voting or transfer of any shares or
securities of or any other interests in members of the Company Group.




     (iii) As of the Closing Date, all the issued and outstanding shares of each member of
Company Group (other than the Company) will be validly issued, fully paid, nonassessable and
will be, directly or indirectly, owned by the Company, free and clear of all Encumbrances
other than Permitted Encumbrances.



     (d) Indebtedness. The Company Group and its Transferred Subsidiaries do not owe any
Indebtedness other than the ICON Capital Financing and the Company Assumed Liabilities.



     (e) OFAC, etc. (i) Section 4.1(e) of the Seller and Company Disclosure Schedule
contains a complete and accurate list of export classifications and export licenses for the
Business Products of the Seller Group and the Company Group; (ii) none of the members of the Seller
Group or the Company Group provides any products or services to the United States Government
(including any department, agency, committee, or other body thereof); (iii) none of the members of
the Seller Group or the Company Group produces or trades in: (A) defense articles and defense
services, and related technical data covered by the United States Munitions List, which is set
forth in the ITAR, or any other article or service covered in the ITAR; (B) articles and services
for which commodity jurisdiction requests under 22 C.F.R. § 120.4 are pending; (C) products and
technology subject to export authorization administered by the U.S. Department of Energy (10 C.F.R.
part 810) or export licensing requirements administered by the U.S. Nuclear Regulatory Commission
(10 C.F.R. part 110); or (D) Select Agents and Toxins (7 C.F.R. part 331; 9 C.F.R. part 121; and 42
C.F.R. part 73); (iv) each member of the Seller Group is, and has at all times been, in compliance
with all statutory and regulatory requirements under the FCPA, as well as any applicable
anti-bribery laws in each jurisdiction in which member operates and, in each case, is without
notice of violation thereof; (v) (A) no member of the Seller Group or any of its Affiliates does
business with, sponsors, or provides assistance or support to, the government of, or any person
located in, any country (including Cuba, Iran, Myanmar (Burma), North Korea, Syria or Sudan), or
with any SDN or other person or entity targeted by any U.S. economic sanctions administered by
OFAC; (B) no member of the Seller Group or the Company Group is owned or controlled



39









 




(within the meaning of the Foreign Assets Control Regulations (31 C.F.R. §§ 500-598) (the
“OFAC Regulations”)) by any targeted government or SDN or other targeted person or entity;
(C) any proceeds from the Contemplated Transactions received by the Seller will not be used
(directly or indirectly) to fund any operations in, finance any investments or activities in or
make any payments to, any targeted country, or to fund, finance or make any payments to any
targeted person or entity; and (D) all members of the Seller Group and the Company Group are, and
have at all times been, in compliance in all respects with applicable provisions of the OFAC
Regulations; (vi) all members of the Seller Group and the Company Group are, and have at all times
been, without notice of violation in any material respect of and in compliance in all material
respects with the anti-boycott laws including all reporting requirements, and is not a party to any
agreement requiring it to participate in or cooperate with the Arab boycott of Israel, including
any agreement to provide boycott-related information or to refuse to do any business with any
person or entity for boycott-related reasons; and (vii) all members of the Seller Group and the
Company Group are, and have at all times been, in compliance with all U.S. export control Laws and
no such member has sold, exported, re-exported, transferred, diverted or otherwise disposed of any
products, Software or technology (including products derived from or based on such technology) to
any destination or Person prohibited by the U.S. export control Laws, without obtaining prior
authorization from the competent Government Entities as may be required by those Laws and no member
of the Seller Group requires a governmental license or other authorization in order to contribute
to the Company Group the Business Products and technologies of its Business.




     Section 4.2 Additional Purchaser Representations. As an inducement to the Seller to
enter into this Share Purchase Agreement, the Purchaser hereby represents and warrants to the
Seller as of the date hereof and as of the Closing Date as follows (unless such representation and
warranty is provided only as of specific dates):



     (a) Organization and Qualification of the Purchaser Holdco.




     (i) Following the Purchaser Restructuring, Purchaser Holdco shall be a business entity
duly organized, validly existing and in good standing (or its equivalent), if applicable,
under the Laws of its respective jurisdiction of organization, and shall have all requisite
corporate power and authority to own, operate or lease its properties and assets now owned,
operated or leased by it and to carry on the Business as it has been and is presently
conducted. Following the Purchaser Restructuring, Purchaser Holdco shall be duly licensed
or qualified to transact business and shall be in good standing (or its equivalent), if
applicable, in each jurisdiction in which the properties owned or leased by it or the
operation of its business makes such licensing or qualification necessary or desirable. All
actions taken by Purchaser Holdco in connection with the Contemplated Transactions have been
duly authorized, and Purchaser Holdco has not taken any action that in any respect conflicts
with, constitutes a default under, or results in a violation of, any provision of its
Organizational Documents.




     (ii) Purchaser has heretofore delivered to the Seller or will deliver to the Seller
prior to the Closing complete and correct copies of the Organizational Documents of
Purchaser Holdco. Purchaser has not engaged in any activities prior to the Closing Date
other than actions necessary in connection with the Purchaser Restructuring and conduct in
the Ordinary Course of Business.



     (b) Capitalization of Purchaser Holdco. Purchaser is the sole beneficial owner and
holder of, and has good and valid title to, one hundred percent (100%) of the interest in the
issued and outstanding registered capital of Purchaser Holdco, free and clear of any Encumbrances,
other than the Permitted Encumbrances. Purchaser does not hold its interest in the registered
capital of Purchaser Holdco for any other Person pursuant to any Contract. None of the Purchaser’s
equity interest in Purchaser Holdco was issued or acquired in violation of any Organizational
Documents, any Law or any Encumbrance. Upon consummation of the Contemplated Transactions, the
Company will own all of the issued and outstanding registered capital of Purchaser Holdco free and
clear of all Encumbrances. There are no voting trusts, proxies or Contracts in effect with respect
to the voting or transfer of any of the equity interests in Purchaser Holdco.



     (c) Valid Issuance; Preemptive Rights.



40









 






     (i) Except as may be required by applicable Law, there are no preemptive or other
outstanding rights, subscriptions, options, warrants, convertible securities, Contracts or
commitments of any character relating to the equity or securities of Purchaser Holdco.




     (ii) All the issued and outstanding registered capital of Purchaser Holdco are validly
issued, fully paid, nonassessable and free of preemptive rights and are owned by the
Purchaser as of the date hereof, free and clear of all Encumbrances. There are no voting
trusts, proxies or Contracts in effect with respect to the voting or transfer of any shares
or securities of or any other interests in Purchaser Holdco.



     (d) Indebtedness; Liabilities. Purchaser Holdco does not owe any Indebtedness and the
Company Assumed Liabilities are the only Liabilities of Purchaser Holdco.



ARTICLE V

COVENANTS




     Section 5.1 Reasonable Best Efforts. The Purchaser and the Seller shall cooperate
with each other and use their respective reasonable best efforts to fulfill as promptly as
practicable the conditions precedent to the other parties’ obligations hereunder and under any of
the Transaction Documents, including securing as promptly as practicable all Consents required in
connection with the transactions contemplated hereby.



     Section 5.2 Required Approvals and Corporate Actions.



     (a) Each Party hereto hereby agrees to cooperate with each other and use its reasonable best
efforts to promptly prepare and file all necessary documentation, to effect all necessary
applications, notices, petitions, filings and other documents and to obtain as promptly as
practicable all necessary Consents of all third parties and Government Entities, including the
Seller and Company Required Approvals, the Purchaser Required Approvals and the Third-Party
Approvals, necessary or advisable to consummate the Contemplated Transactions; provided,
however, that the foregoing shall not apply for any such Consents that are immaterial to
the Business and shall not obligate any Party to take any action that would reasonably be expected
to result in a Substantial Detriment to such Party.



     (b) Each Party shall have the right to review in advance, and to the extent practicable each
Party will consult the others on, in each case subject to applicable Laws relating to the exchange
of information, all the information relating to, the Seller, the Company or the Purchaser, that
appears in any filing made with, or written materials submitted to, all third parties and
Government Entities in connection with the Contemplated Transactions. In exercising the foregoing
right, each of the Seller and the Purchaser shall act reasonably and as promptly as practicable.
The Seller and the Purchaser agree that they will keep the other apprised of the status of all
matters relating to completion of the Contemplated Transactions, including promptly furnishing the
other with copies of notice or other written communications received from all third parties and
Government Entities with respect to the Contemplated Transactions.



     (c) The Purchaser and the Seller will use their reasonable best efforts to obtain as promptly
as practicable all authorizations, Consents, orders, actions and approvals, and to make all filings
with and to give all notices required under any antitrust, competition or trade regulation or other
Law that may be asserted by any Government Entity or any other Person with respect to this Share
Purchase Agreement or any other Transaction Documents, the transactions contemplated hereby and
thereby, so as to make effective as promptly as practicable this Share Purchase Agreement, to
facilitate the consummation of the Contemplated Transactions and to avoid any suit or proceeding
having the effect of preventing or delaying the Closing beyond the Outside Date. The steps and
actions involved in the preceding sentence shall include (i) full cooperation between the Purchaser
and the Seller in promptly seeking to obtain all such authorizations, Consents, orders, actions and
approvals and to make all such filings and give all such notices (except for any such
authorizations, Consents, orders, actions, approvals, filings or



41









 




notices with respect to which the failure to obtain would not cause or result in a Material
Adverse Effect); (ii) provision by the Purchaser and the Seller of such other information to any
Government Entity as such Government Entity may request in connection herewith; (iii) reasonable
best efforts by the Purchaser and the Seller to avoid or eliminate each and every impediment under
any antitrust, competition, or trade regulation or other law that may be asserted by any Government
Entity (provided that the Purchaser and the Seller shall not be obligated to accept the imposition
of any procedural or substantive requirement, term, condition or consequence, which, if accepted,
would constitute a Substantial Detriment) in order (A) to obtain all necessary material Consents as
soon as reasonably possible, and in any event before the Outside Date, (B) to avoid the entry of,
or to have vacated, lifted, dissolved, reversed or overturned any decree, judgment, injunction or
other Order, whether temporary, preliminary or permanent, that is in effect in any Action and that
prohibits, prevents or restricts consummation of the Contemplated Transactions, or (C) to effect
the expiration or termination of any waiting period, which would otherwise have the effect of
preventing or delaying the Closing beyond the Outside Date. At the request of the Purchaser, the
Seller may, at its sole discretion, take, or cause the Company to take, any action with respect to
the Company in the two preceding sentences.




     Section 5.3 Notice. Between the date hereof and the Closing Date, the Seller, on the
one hand, and the Purchaser, on the other hand, shall, as promptly as reasonably practicable but in
any event within five (5) Business Days after such Party becomes aware of such circumstance as set
forth below and that such circumstance gives rise to the requirement to give notice hereunder,
provide the other Parties with notice of (i) any event or occurrence that to the Knowledge of the
Seller or the Purchaser, as the case may be, causes or is reasonably expected to cause any of the
representations given by any Party in Article III hereof or by the Seller and the Company in
Article IV hereof to be untrue if such representation were given as of the Closing Date; (ii) any
event or occurrence that to the Knowledge of the Seller or the Purchaser, as the case may be,
causes or is reasonably expected to cause such Party to breach or not to fulfill any of its
obligations under this Article V; and (iii) the occurrence or non-occurrence of any event, the
occurrence or non-occurrence of which could reasonably be expected to affect the fulfillment of any
of the conditions under Sections 6.1 to 6.3. No disclosure by any Party pursuant to this
Section 5.3 shall be deemed to amend or supplement its Relevant Disclosure Schedule or to prevent
or cure any misrepresentation or breach of warranty.



     Section 5.4 Publicity. Unless required by any Government Entity or any securities
exchange, no press releases, public announcements or communications with any news media in respect
of this Share Purchase Agreement or the Contemplated Transactions shall be made by any Party
without the prior written consent of the other Parties. The Parties hereto shall (i) consult with
each other prior to making any required press releases or public announcements or public filings
with any Government Entity or with any securities exchange with respect to the Contemplated
Transactions and (ii) cooperate as to the timing and contents of any press release, public
announcement or communication with news media in respect of this Share Purchase Agreement or the
Contemplated Transactions.



     Section 5.5 Expenses. Except as otherwise expressly provided herein, all Expenses (as
defined below) of the Seller or the Purchaser shall be paid by the Party incurring such Expenses
and all Expenses of the Company shall be paid by the Seller or the Purchaser, as the case may be,
who has caused the Company to incur such Expenses. For the avoidance of doubt, (i) Expenses
relating to the Restructuring and the transfer of its Transferred Business Assets to the Company
shall be borne by the Seller and (ii) Expenses relating to the Purchaser’s transfer of its
Transferred Business Assets to the Company shall be borne by the Purchaser. “Expenses”, as
used in this Share Purchase Agreement, shall include all out-of-pocket expenses (including, without
limitation, all fees and expenses of counsel, accountants, investment bankers, experts and
consultants to a Party hereto and its Affiliates) incurred by a Party or on its behalf in
connection with or related to the authorization, preparation, negotiation, execution and
performance of this Share Purchase Agreement and the other Transaction Documents and the
Contemplated Transactions. The Seller and the Purchaser shall be responsible for its obligations
to pay all stamp or other transfer taxes or duties and capital gains, income, withholding or other
taxes arising from the execution, delivery and performance of the Transaction Documents. For the
avoidance of doubt, the Parties agree that the Purchaser shall pay the full amount of the Cash
Purchase Price without any withholding of any kind by the Purchaser, unless such withholding is
required by applicable Law or by the interpretation or administration thereof, and the Seller shall
be responsible for paying the capital gains tax and other transfer taxes for which the



42









 




Seller is responsible, if any, incurred in connection therewith. To the extent that any
amount is withheld by the Purchaser, such withheld amount shall be treated for all purposes of this
Share Purchase Agreement as having been paid to the Seller.




     Section 5.6 Intercompany Liabilities. Each Party shall take all actions necessary so
that the Company Group shall have no Liability (other than with respect to (i) the ICON Capital
Financing, (ii) the ICON Capital Financing Guaranty, (iii) any Liabilities under or pursuant to the
Transaction Documents and (iv) the Company Assumed Liabilities (excluding, for the avoidance of
doubt, any Liability required to be adjusted and eliminated such that it would not be a Liability
pursuant to and as shown on the Business Financial Statements)) to the Seller Group or the
Purchaser Group after the Closing, including (a) any Liability for borrowings or guarantees between
any member of Company Group and any member of the Seller Group or the Purchaser Group and (b) any
obligation of any member of the Seller Group or the Purchaser Group to pay a dividend to any member
of the Company Group out of earnings of its Business prior to the Closing Date.



     Section 5.7 Pre-Closing Restructuring and Closing Asset Transfer. Seller and the
Company shall take all necessary actions such that prior to the Closing: (i) the Company Group can
operate the Seller Group’s Business in the same manner as such Business has been operated by the
Seller; and (ii) the transactions contemplated in accordance with the Plan of Reorganization and
the transactions contemplated in this Section 5.7 are completed with respect to the Seller and the
Company ((i) and (ii) collectively, the “Restructuring” and, for illustrative purposes
only, attached as Exhibit 5.7 hereto is a chart of the organizational structure of the
Company Group following the Restructuring), except, in each case, that it is understood and agreed
that the Seller and the Company can only exercise reasonable best efforts with respect to any
necessary or advisable Consents or Seller and Company Required Approvals in connection with the
Restructuring as further specified in Section 5.2. The Purchaser shall take all necessary actions
such that, immediately after the Closing, the Company Group can operate the Business of the
Purchaser Group in the same manner as such Business has been operated prior to the Closing, and
Purchaser has contributed US$9.5 million to Purchaser Holdco in cash or capital expenditures in
connection with its Transferred Business Assets (“Purchaser Restructuring”), except that it
is understood and agreed that the Purchaser can only exercise reasonable best efforts with respect
to any necessary or advisable Consents or Purchaser Required Approvals in connection with the
Purchaser Restructuring as further specified in Section 5.2.



     (a) Transfer of Assets. In connection with (i) the Restructuring, the Seller shall
and shall cause the Seller Group to assign, transfer, convey and deliver to the Company Group all
of the Seller Group’s right, title and interest in and to its Transferred Business Assets (subject,
where unavoidable, to the formalities of any filing and registration of transfer of titles) and
(ii) the Closing and subject to the provisions of Section 2.3(f)(i), the Purchaser shall and shall
cause the Purchaser Group to assign, transfer, convey and deliver to the Company Group all of the
Purchaser Group’s right, title and interest in and to its Transferred Business Assets (subject,
where unavoidable, to the formalities of any filing and registration of transfer of titles). The
“Transferred Business Assets” of each of the Seller Group or the Purchaser Group shall
include its:




     (i) Cash, cash equivalents and marketable securities to the extent directly arising
from or on account of the conduct of the Business;




     (ii) Business Real Property;




     (iii) Transferred Material Contracts;




     (iv) Transferred Business IP Agreements;




     (v) Transferred Subsidiaries;




     (vi) Receivables (other than with respect to Seller, certain Receivables of its
Business for which a member of Purchaser Group is the payor);



43









 






     (vii) Inventories, raw materials and work-in-process for use primarily in the conduct
and operation of the Business, as presently conducted and operated;




     (viii) Equipment used primarily in the conduct and operation of the Business as
presently conducted and operated;




     (ix) Transferred Owned Intellectual Property and all notebooks, databases, source code,
documents and other materials embodying the foregoing;




     (x) Transferred Licensed Intellectual Property;




     (xi) Transferred Business IT Assets;




     (xii) Books and Records with respect to their respective Businesses (subject to U.S.
export control Laws);




     (xiii) all Permits necessary to or principally used in the Business;




     (xiv) all Claims of the Seller Group or the Purchaser Group, as the case may be, to the
extent related to its Business, including, in the case of the Seller Group, the ARAM Seller
Case, except for the remaining pending Claims listed in Section 3.12(a) of the Relevant
Disclosure Schedule;




     (xv) all guaranties, warranties, indemnities and similar rights in favor of the Seller
Group or the Purchaser Group to the extent primarily related to any Transferred Business
Asset;




     (xvi) all Prepaid Expenses;




     (xvii) all Insurance Policies, unless such Party has procured substantially similar
policies for the Company or unless obtaining any applicable Consents or substantially
similar policies would be prohibitively expensive;




     (xviii) all other properties and tangible and intangible assets necessary to or
principally used (other than Intellectual Property for which the standard is “primarily
used”) for the conduct or operation of the Business of such Relevant Group as conducted and
operated prior to the Closing; and




     except, in each case, excluding the Excluded Assets.


The Transferred Business Assets of the Seller Group and the Purchaser Group include the Business
Assets listed in Section 5.7(a) of the Relevant Disclosure Schedule, which may be updated prior to
the Closing.



Notwithstanding the foregoing with respect to Transferred Business Assets of the Seller Group, the
Parties agree that although the CIS Subsidiary and its Transferred Business Assets constitute part
of the Transferred Business Assets and the Restructuring, such Restructuring shall be deferred
until following the Closing as provided in Section 2.3(f)(ii) and that the Seller shall instead
contribute US$1,507,262 in lieu of the Transferred Business Assets of the CIS Subsidiary at the
Closing. From the date hereof until the CIS Subsidiary is sold and transferred to the Company
Group, the Seller shall cause the Business of the CIS Subsidiary to be conducted in the Ordinary
Course of Business, solely for the benefit of the Company, and under the sole direction of the
Company, as if it were a part of the Company Group. For the avoidance of doubt, all Company
Assumed Liabilities of the CIS Subsidiary that arise during the period between the Closing Date and
the date of the transfer of equity of the CIS Subsidiary to the Company, as well as all cash,
receivables, Contracts or other payments received or arising from the Businesses of the CIS
Subsidiary during such interim period shall remain within the CIS Subsidiary.



From the date hereof until the Purchaser Holdco is transferred to the Company Group, the Purchaser
shall cause the Business of Purchaser Holdco to be conducted in the Ordinary Course of Business,
solely for the benefit of the






44









 







Company, and under the sole direction of the Company, as if it were a part of the Company Group.
For the avoidance of doubt, all Company Assumed Liabilities of Purchaser Holdco that arise during
the period between the Closing Date and the date of the transfer of equity of the Purchaser Holdco
to the Company, as well as all cash, receivables, Contracts or other payments received or arising
from the Businesses of Purchaser Holdco during such interim period shall remain within Purchaser
Holdco.




     (b) Assumption of Liabilities. The Company Group shall not assume, and the Seller
Group and the Purchaser Group, as applicable, shall retain, all Liabilities, including any
Liability for any Indebtedness and any Liability arising out of any Excluded Assets (subject to the
following provisos with respect to Company Assumed Liabilities, the “Excluded
Liabilities”), provided that, that the Company shall assume, and agrees to faithfully discharge
or perform (i) all Liabilities related to the Businesses of the Company Group and the Seller Group
and the Purchaser Group that arise out of the Transferred Business Assets in the Ordinary Course of
Business to the extent not in contravention of the provisions of this Share Purchase Agreement
(including (A) accounts payable of the Business incurred in the Ordinary Course of Business other
than amounts payable between the Purchaser Group and the Seller Group; (B) any Liability to the
Seller Group or the Purchaser Group’s respective customers under standard warranty agreements given
by the Seller Group or the Purchaser Group, as applicable, to its customers in the Ordinary Course
of Business prior to Closing, (C) any Liability to the Seller Group’s customers incurred by the
Seller Group in the Ordinary Course of Business for orders outstanding as of the Closing Date and
any Liability to the Purchaser Group’s customers incurred by the Purchaser Group in the Ordinary
Course of Business for orders outstanding as of the Closing Date, (D) any Liability of the Seller
Group or the Purchaser Group, as the case may be, arising after the Closing Date under any
Transferred Material Contract transferred and assigned to the Company Group or any Contract that is
entered into by Seller Group or the Purchaser Group after the date hereof in accordance with the
provisions of this Share Purchase Agreement in either case whether or not attributable to events or
occurrences arising following the Closing Date, and (E) all Liabilities and obligations (including
with respect to any claims that the Business Products infringe, misappropriate or otherwise violate
the Intellectual Property rights of any other Person) related to the conduct and operation of the
Company Group’s Business or that arise out of the Transferred Business Assets to the extent
attributable to events or occurrences arising following the Closing Date; and (ii) any Liabilities
assumed pursuant to the ICON Capital Financing Guaranty (any Liabilities to the extent provided for
in clauses (i) to (ii) collectively, the “Company Assumed Liabilities”). For the avoidance
of doubt, the Company Assumed Liabilities shall not include any Liabilities (including any accounts
payable) required to be eliminated pursuant to Section 5.6.



     (c) Restructuring Agreements. In connection with the Restructuring, the Company shall
enter into (such agreements herein collectively referred to as the “Pre-Closing Restructuring
Agreements”):




     (i) the Seller Group Intellectual Property Agreements;




     (ii) the Seller Group Assignment, Transfer and Assumption Agreements;




     (iii) deeds, bills of sale or other appropriate documents of transfer for transferring
the real and personal property included in the Transferred Business Assets to the Company;




     (iv) Key Business Employee Agreements; and




     (v) a guaranty by the Company in favor of the Seller in connection with the transfer of
the ICON Capital Financing to the Company Group (the “ICON Capital Financing
Guaranty”).



     (d) Business Employees.




     (i) U.S. Business Employees.




	 	(1)	 	Transferred Company U.S. Employees. Unless the
other Party (Seller or Purchaser) otherwise consents in writing in
advance with respect to any specific U.S. Business Employee (A) the
Seller shall either use its best efforts to cause




45









 






	 	 	 	the employment of its U.S. Business Employees to be transferred to
the Company by transferring the stock of the employing Subsidiary of
the Seller to the Company (and the Seller shall do so prior to the
Closing in connection with the Restructuring) (“Seller Continuing
Company U.S. Employees” ) or (ii) the Seller and the Purchaser
shall use their respective best efforts to cause their respective
U.S. Business Employees to become employed by the Company Group
pursuant to a Comparable Offer of Employment (and the Seller shall do
so prior to the Closing in connection with the Restructuring) (such
U.S. Business Employees that accept such offers of employment, the
“Seller Hired Company U.S. Employees” and “Purchaser
Hired Company U.S. Employees”, respectively).






	 	(2)	 	Offers of Employment to Seller Hired Company U.
S. Employees and Purchaser Hired Company U. S. Employees. The Company
agrees to make or cause its appropriate Subsidiary to make a Comparable
Offer of Employment to each U.S. Business Employee who is not a Seller
Continuing Company U. S. Employee. Such Comparable Offer of Employment
shall, among other things, provide for employment of such U.S. Business
Employee commencing at 12:01 a.m. (Houston time) on the day following
the Closing Date and shall be conditioned on the closing of the
Contemplated Transactions. A “Comparable Offer of Employment”
to such U.S. Business Employee shall be an offer of employment:
	 
	 	 	 	(i) at no less than one hundred percent (100%) of such U.S. Business
Employee’s base salary (as of the date hereof and including any
adjustments related to contractual obligations, job promotions or
merit increases consistent with past practice and in the Ordinary
Course of Business) with the Purchaser Group or the Seller Group, as
applicable, as of the Closing Date;
	 
	 	 	 	(ii) to initiate employment at a location not more than twenty (20)
miles from such U.S. Business Employee’s worksite immediately prior
to the Closing Date (except with the consent of such U.S. Business
Employee);
	 
	 	 	 	(iii) to initiate employment in a position that would not result in
such U.S. Business Employee being changed from annual bonus-eligible
under the current applicable Warranting Party Plan to
bonus-ineligible under the current applicable Warranting Party Plan;
and
	 
	 	 	 	(iv) to vest the unvested portions of such U.S. Business Employee’s
“(401)k” plans maintained by the Warranting Party, effective as of
the Closing Date.
	 
	 	 	 	(v) It is understood and agreed that (A) the Company’s expressed
intention to extend Comparable Offers of Employment as set forth in
this Section 5.7(d)(i)(2) shall not constitute any commitment,
Contract or understanding (expressed or implied) of any obligation on
the part of the Company Group to a post-Closing employment
relationship of any fixed term or duration or upon any terms or
conditions other than those that the Company Group may establish
pursuant to individual Comparable Offers of Employment (subject to
Section 5.7(d)(i)(3)), and (B) except as may otherwise be required by
applicable Law, employment offered by the Company Group is “at will”
and may be terminated by the Company Group or by an employee at any
time for any reason (subject to any written commitments to the
contrary made by the Company Group or an employee). Nothing in this
Share Purchase Agreement shall be deemed to




46









 






	 	 	 	prevent or restrict in any way the right of the Company Group to
terminate, reassign, promote or demote any U.S. Business Employee
after the Closing or to change adversely or favorably the title,
powers, duties, responsibilities, functions, locations, salaries,
other compensation or terms or conditions of employment of such U.S.
Business Employees.






	 	(3)	 	Continuing Obligations. For a period of no
less than one year immediately following the Closing Date, the Company
shall, and shall cause its Subsidiaries to provide the Transferred
Company U.S. Employees with base salary and employee benefits
(excluding benefits under any equity plan, program or arrangement of
Seller or Purchaser), which are in the aggregate of substantially
similar value to those that such Transferred Company U. S. Employee was
receiving as of the Closing Date.
	 
	 	(4)	 	Non-Transferred Employees. The Parties
acknowledge and agree that if any U.S. Business Employee who is not a
Seller Continuing Company U. S. Employee or Purchaser Continuing
Company U. S. Employee does not accept the Comparable Offer of
Employment (a “Non-Transferred U.S. Employee”), the Purchaser
Group or the Seller Group, as applicable, will terminate the employment
of the Non-Transferred U.S. Employee as of or promptly after the
Closing Date.
	 
	 	(5)	 	Cooperation. The Purchaser and the Seller
shall cooperate with the Company in the Company’s efforts to make
offers of employment to the U.S. Business Employees who are not Seller
Continuing Company U.S. Employees. Such cooperation shall include, but
not be limited to, providing to the Company all relevant data or
summaries of such data relating to such U.S. Business Employees, as may
be necessary to carry out the provisions of this Share Purchase
Agreement without contravening applicable Law regarding privacy rights
of such U.S. Business Employees.
	 
	 	(6)	 	Successor. The Parties agree that, in
accordance with the “Alternative Procedure” provided in Section 5 of
Revenue Procedure 2004-53, 2004-34 IRB 320 (or any successor thereto),
with respect to filing and furnishing of Internal Revenue Service Forms
W-2, W-3 and 941, after the Closing Date, (A) the Parties shall report
on a “predecessor-successor” basis with respect to any Transferred
Company U. S. Employee who is transferred from a Relevant Group to the
Company, (B) the Relevant Group shall not be required to furnish Forms
W-2 to such Transferred Company U. S. Employees to whom it otherwise
would have been obligated to furnish such forms for the calendar year
2010 and (C) the Company shall assume the obligations of the Relevant
Group to furnish such forms to the Transferred Company U.S. Employees
for such calendar year.






     (ii) Warranting Party U.S. Plans.




	 	(1)	 	Except as with respect to Transferred
Warranting Party U.S. Plans, the Seller Group or the Purchaser Group,
as applicable, will retain all obligations and liabilities with respect
to any Warranting Party U.S. Plan.
	 
	 	(2)	 	Except as otherwise provided in this Share
Purchase Agreement or the other Transaction Documents, Seller Group and
Purchaser Group shall not have any obligations or liabilities with
respect to providing any Transferred Company U.S. Employee any employee
benefits under any Warranting Party U.S. Plan or other employee benefit
plan with respect to periods after the Closing Date.




47









 












	 	(3)	 	Except as with respect to Transferred
Warranting Party U.S. Plans, the Purchaser and the Seller shall
continue to retain and assume, bear and discharge all liabilities
incurred after the Closing with respect to any health costs,
obligations, or expenses incurred for continuation coverage under COBRA
with respect to “qualifying events” (within the meaning of Section
4980B(f)(3) of the Code or Section 603 of ERISA) occurring on or before
the Closing Date with respect to U.S. Business Employees or any other
employees or former employees of the Relevant Group (or their
dependents), if any.
	 
	 	(4)	 	For the avoidance of doubt, the Company or its
Subsidiaries shall assume or retain all obligations and liabilities
with respect to the Transferred Warranting Party U.S. Plans.






     (iii) Non-U.S. Business Employees. The Parties agree and acknowledge with respect to
Non-U.S. Business Employees of the Seller Group or the Purchaser Group that:




	 	(1)	 	such Non-U.S. Business Employees shall be
offered a comparable offer of employment (or assignment in the case of
Seconded Non-U.S. Employees) by the Company Group, which shall include
compensation and benefits no less favorable in the aggregate than that
provided to them in their existing employment relationship with the
Seller Group or the Purchaser Group, as applicable (whether implemented
through (i) the creation of a direct employment relationship with the
Company Group (“Hired Company Non-U.S. Employees”), (ii)
through the transfer of a Transferred Subsidiary that employs such
Non-U.S. Business Employee or (iii) as the Parties may agree, through
secondment service arrangements, including pursuant to the Purchaser
Employee Arrangement Agreement, providing for a comparable offer of
employment to such Non-U.S. Business Employees and providing that such
Non-U.S. Business Employees shall in all respects serve the Company and
not their formal employer (“Seconded Non-U.S. Employees”)
(collectively clauses (i) through (iii), “Transferred Company
Non-U.S. Employees” and together with Transferred Company U.S.
Employees, the “Transferred Company Employees”).
	 
	 	(2)	 	The Purchaser Group or the Seller Group, as
applicable shall cooperate with the Company to make offers of
employment to the Hired Company Non-U.S. Employees and use reasonable
best efforts to cause such Hired Company Non-U.S. Employees to enter
into applicable formal agreements of employment substantially similar
to that entered into by such Hired Company Non-U.S Employees in their
employment with the Purchaser Group or the Seller Group, as applicable.
The Purchaser Group or the Seller Group, as applicable, shall terminate
as of the Closing Date, or promptly thereafter, the employment of such
Hired Company Non-U.S. Employees or Seconded Non-U.S. Employees who do
not accept such offer of employment or assignment provided in the
preceding paragraph.
	 
	 	(3)	 	Except as otherwise provided in this Share
Purchase Agreement or the other Transaction Documents, the Seller Group
or the Purchaser Group, as the case may be, shall retain all
obligations and liabilities with respect to their respective Non-U.S.
Warranting Party Plan.






     (iv) Worker’s Compensation. The Purchaser and the Seller shall be responsible for and
pay any and all workers’ compensation and other similar statutory claims asserted by or with
respect to any of their respective Business Employees in respect of any injury or other
compensable event or occupational



48









 







illness or disease which occurred or is attributable to any event, state of facts or
condition which existed or occurred in whole prior to the Closing Date. The Company shall
be responsible for and pay any and all workers’ compensation and other similar statutory
claims asserted by or with respect to any Transferred Company Employee in respect of any
injury or any other compensable event or occupational illness or disease which occurred or
is attributable to any event, state of facts or condition which existed or occurred in whole
after the Closing Date. If any such injury or other compensable event or occupational
illness or disease of a Transferred Company Employee who was employed by a Relevant Group
prior to the Closing Date and by the Company after the Closing Date is attributable in part
to causes occurring prior to the Closing Date and in part to causes subsequent to the
Closing Date and is the basis of a workers’ compensation or other similar statutory claim,
the liability for any such claims shall be shared by the Parties in the proportion of the
periods of employment of such Transferred Company Employee on or prior to the Closing Date
and after the Closing Date, respectively.



     (e) Removal of Encumbrances. Prior to the Closing, the Seller shall enter into
enforceable agreements to remove all Encumbrances (other than the categories of Permitted
Encumbrances set forth in clauses (i) through (vi) and clause (viii) of such definition) on the
Transferred Business Assets, subject only to the receipt of money to be paid.



     Section 5.8 Confidentiality. Each Party agrees to, and shall cause their agents,
representatives, Affiliates, employees, officers and directors to: (i) treat and hold as
confidential (and not disclose or provide access to any Person to) all information relating to
trade secrets, processes, Patent applications, product development, price, customer and supplier
lists, pricing and marketing plans, policies and strategies, details of client and consultant
contracts, operations methods, product development techniques, business acquisition plans, new
personnel acquisition plans and all other confidential or proprietary information with respect to
the other Parties’ Business, (ii) in the event that a Party or any such agent, representative,
Affiliate, employee, officer or director becomes legally compelled to disclose any such
information, provide the other Parties with prompt written notice of such requirement so that any
other Party may seek a protective order or other remedy or waive compliance with this Section 5.8,
and (iii) in the event that such protective order or other remedy is not obtained, or the other
Parties waive compliance with this Section 5.8, furnish only that portion of such confidential
information which is legally required to be provided and exercise its reasonable best efforts to
obtain assurances that confidential treatment will be accorded such information; provided,
however, that this sentence shall not apply to any information that, at the time of
disclosure, is available publicly and was not disclosed in breach of this Share Purchase Agreement
by the Seller, its agents, representatives, Affiliates, employees, officers or directors; and
provided further that, with respect to Intellectual Property, specific information
shall not be deemed to be within the foregoing exception merely because it is embraced in general
disclosures in the public domain. In addition, with respect to Intellectual Property, any
combination of features shall not be deemed to be within the foregoing exception merely because the
individual features are in the public domain unless the combination itself and its principle of
operation are in the public domain. Each Party agrees and acknowledges that remedies at law for
any breach of its obligations under this Section 5.8 are inadequate and that in addition thereto
any other Party shall be entitled to seek equitable relief, including injunction and specific
performance, in the event of any such breach. In the event of a conflict between the terms and
conditions of this Share Purchase Agreement and the terms and conditions of the Confidentiality
Agreement, the terms and conditions of this Share Purchase Agreement shall govern.



     Section 5.9 Conduct of Business.



     (a) During the period from the date hereof to the Closing Date, except as otherwise agreed
pursuant to the Contemplated Transactions or as the Seller and Purchaser otherwise agree in writing
in advance, each Party shall, and shall cause the Company to, conduct its respective Business in
the Ordinary Course of Business, and shall use its reasonable best efforts to preserve intact its
respective Business and its Relevant Group’s current relationships with customers, suppliers and
creditors of its respective Business, Business Employees and other persons with which it has had
significant business relationships in respect of its respective Business.



     (b) Without limiting the generality of the foregoing, between the date hereof and the Closing
Date, each Party shall, and shall cause the Company to, do the following in respect of its
respective Business: (i) use its



49









 




reasonable best efforts to (A) preserve intact its business organizations, (B) keep available
to the Company and the Business of such Party the services of such Party’s Business Employees, and
(C) continue in full force and effect without material modification all existing policies or
binders of insurance currently maintained in respect of its Business; (ii) exercise, but only after
notice to the other Parties and receipt of the other Parties’ prior written approval, any rights of
renewal pursuant to the terms of any of the Leases which by their terms would otherwise expire;
(iii) not take any action or permit any of the events specified in Sections 3.11 to occur without
the prior written consent of the other Parties; and (iv) not otherwise engage in any practice, take
any action, fail to take any action or enter into any transaction which could cause any
representation or warranty of such Party to be untrue or result in a breach of any covenant made by
such Party in this Share Purchase Agreement.




     (c) Without limiting the generality of the foregoing, between the date hereof and the Closing
Date, each Party shall not, and the Seller shall cause the Company not to, do the following in
respect of its respective Business: (i) grant, extend, amend (except as required in the diligent
prosecution of its Intellectual Property), waive or modify any material rights in or to, nor sell,
assign, lease, transfer, license, let lapse, abandon, cancel or otherwise dispose of, or extend or
exercise any option to sell, assign, lease, transfer, license or otherwise dispose of, any of its
Business Intellectual Property or its Business IP Agreements (other than in the Ordinary Course of
Business); (ii) fail to diligently prosecute the such Party’s Patent applications; (iii) fail to
exercise a right of renewal or extension under any material Business IP Agreements.



     Section 5.10 Access and Information.



     (a) After the date hereof and until the Closing, each Party shall permit (or cause to be
permitted) the other Parties and their Representatives to have reasonable access, during regular
business hours and upon reasonable advance notice, to the offices, properties, plants, other
facilities, Books and Records and Material Contracts of the Business of such Party and to those
Representatives of such Party who have any knowledge relating to the Business of such Party, and
shall furnish, or cause to be furnished, to the other Parties and their Representatives relevant
financial and operating data and other information that is available with respect to its Business,
personnel, assets and liabilities as the other Parties shall from time to time reasonably request,
including any update to the Business Financial Statements and the Seller Historical Financial
Statements; provided however, that the foregoing shall be subject in all respects to applicable
Laws, including restraints and limitations on any such access to information imposed by any
Government Entity having jurisdiction in the matter on any Party.



     (b) The parties have established a preparatory committee for mutual consultation on matters
relating to the Contemplated Transactions and the Business.



     Section 5.11 No Solicitation or Negotiation. Each Party agrees that between the date
hereof and the earlier of (a) the Closing and (b) the termination of this Share Purchase Agreement,
no Party shall, and no Affiliates or Representatives of the respective Parties shall, directly or
indirectly, (i) solicit, initiate, consider, encourage, accept or otherwise facilitate any other
proposals or offers from any Person (A) relating to any acquisition or purchase of (1) all or any
portion of the equity interest or issued capital of the Company or the Seller or (2) their
respective Business Assets (other than Inventory to be sold in the Ordinary Course of Business) or
(B) to enter into any merger, consolidation, business combination, recapitalization, reorganization
or other extraordinary business transaction involving or otherwise relating to such Party or its
Business Assets (ii) participate in any discussions, negotiations and other communications
regarding, or furnish to any other Person any information with respect to, or otherwise cooperate
in any way with, assist or participate in, or facilitate or encourage any effort or attempt by any
other Person to seek to do any of the foregoing. Each Party immediately shall cease and cause to
be terminated all existing discussions, conversations, negotiations and other communications with
any Persons conducted heretofore with respect to any of the foregoing. Each Party shall notify the
other Parties promptly if any such proposal or offer, or any inquiry or other contact with any
Person with respect thereto, is made and shall, in any such notice to the other Parties, indicate
in reasonable detail the identity of the Person making such proposal, offer, inquiry or contact and
the terms and conditions of such proposal, offer, inquiry or other contact. Each Party agrees not
to without the prior written consent of the other Parties, release any Person (except the
Purchaser) from, or waive any provision of, any confidentiality or standstill agreement to which
such Party is a party.



50









 





     Section 5.12 Customers. Between the date hereof and the Closing Date, the Seller and
the Purchaser shall use, and shall cause their respective members of the Seller Group and the
Purchaser Group, as applicable, to use, commercially reasonable efforts to maintain the customers
of its Business, including those set forth in Section 3.15 of the Relevant Disclosure Schedule and
shall update such list of customers, upon any change thereto.



     Section 5.13 Transaction Documents. Subject to the satisfaction of the terms and
conditions to the Closing, at the Closing, each of the Purchaser and the Seller shall, and shall
ensure that the members of its Relevant Group shall, execute each Transaction Document to which any
of them is a party and the Purchaser shall, and shall ensure that members of its Relevant Groups
shall, execute and deliver each Transaction Document to which any of them is a party.



     Section 5.14 Tax Matters.



     (a) Seller Liability for Taxes. The Seller shall be liable for and shall indemnify
the Purchaser in accordance with Article VIII hereof for all Taxes imposed on the Company or any of
its Subsidiaries or for which the Company or any of its Subsidiaries may otherwise be liable for
any taxable year or period that ends on or before the Closing Date (the “Pre-Closing Tax
Period”) and, with respect to any taxable year or period beginning before and ending after the
Closing Date, the portion of such taxable year for any period ending on and including the Closing
Date (the “Stub Period”) including but not limited to, all Taxes imposed on the Purchaser
or the Company or any of its Subsidiaries in connection with the Restructuring and the transfer of
the 51% of the Equity Interest of the Company to the Purchaser, all several Liabilities under
applicable Law, including but not limited to US Treasury Regulation Section 1.1502-6, that the
Company or any of its Subsidiaries may be liable for Pre-Closing Tax Period and the Stub Period.
The Seller shall be entitled to any refund of Taxes of the Company or any of its Subsidiaries
received in respect of the Pre-Closing Tax Period or the Stub Period, but only to the extent that
the Purchaser did not pay such Taxes.



     (b) Company Liability for Taxes. The Company Group shall be liable for any Taxes for
any taxable period, or portion thereof, beginning after the Closing Date (the “Post-Closing Tax
Period”). The Company Group shall be entitled to any refund of Taxes of the Company Group
received with respect to the Post-Closing Tax Period.



     (c) Proration of Taxes. To the extent necessary to determine the liability for Taxes
for a portion of a taxable year or period that begins before and ends after the Closing Date, the
determination of the Taxes for the portion of the year or period ending on, and the portion of the
year or period beginning after, the Closing Date shall be determined by assuming that the taxable
year or period ended as of the close of business on the Closing Date.



     (d) Pre-Closing and Post-Closing Tax Returns. The Seller shall prepare and file all
Tax Returns required to be filed by the Seller or the Company Group with respect to any Pre-Closing
Tax Period (each such Tax Return, a “Seller Tax Return”), and shall pay and indemnify and
hold the Purchaser harmless against any Tax due in respect of any Pre-Closing Tax Period. None of
the Purchaser, the Company Group, nor any Affiliate thereof, shall amend, or take any action that
would cause the Seller or the Company Group to amend any Seller Tax Return without the Seller’s
prior written consent. The Purchaser shall make available to the Seller, during regular business
hours, any documents or other information that is necessary to prepare or file any Seller Tax
Return and shall otherwise cooperate with any reasonable request of the Seller in connection with
the preparation and filing of any Seller Tax Return. The Company Group shall prepare and file all
Tax Returns required to be filed with respect to any Post-Closing Tax Period.



     (e) Stub Period Taxes. The Seller shall deliver to the Purchaser all Tax Returns for
the Company or any of its Subsidiaries for the Stub Period (the “Stub Period Returns”),
together with all supporting workpapers and other documents necessary to verify the accuracy of the
Stub Period Returns not later than the earlier of (x) thirty (30) days after the Closing Date and
(y) thirty (30) days prior to the due date (including extensions) of each such Tax Return. Unless
the Purchaser shall notify the Sellers in writing, not later than twenty-five (25) days after
delivery of any such Stub Period Return, that the Purchaser objects to one or more positions taken
on such Stub Period Return, which notice shall include a description in reasonable detail of the
basis for such determination (any such notice, a “Stub Period Objection Notice”), the
Purchaser shall take any action reasonably requested by the



51









 




Seller in connection with filing such Stub Period Return. If the Purchaser shall deliver a
Stub Period Objection Notice, the Purchaser and the Seller shall attempt in good faith to resolve
any issue identified in the Stub Period Objection Notice. If unable to resolve any such issue, the
matter shall be referred to an internationally recognized accounting firm mutually acceptable to
the Purchaser and the Sellers, which firm shall determine whether there is or is not a reasonable
basis for the position maintained by the Seller. Such determination shall be final and binding on
the Purchaser and the Seller.




     (f) Contest Provisions. Each of the Purchaser and the Seller shall promptly notify
the other in writing upon receipt of notice of any pending or threatened audits or assessments with
respect to Taxes for which such other Party (or such other Party’s Affiliates) may be liable
hereunder. The Purchaser or the Seller, as applicable, shall be entitled to participate at its own
expense in the defense of any Tax audit or Action or other proceeding relating to Taxes with
respect to which it may be liable, and to employ counsel or other tax advisors of its choice at its
own expense. Subject to the immediately preceding sentence, neither Party may agree to settle any
claim for Taxes for which the other may be liable without the prior written consent of such other
Party, which consent shall not be unreasonably withheld.



     (g) Cooperation on Tax Matters. The Purchaser and the Seller shall cooperate fully,
as and to the extent reasonably requested by the other Party, in connection with the filing of Tax
Returns pursuant to this Section 5.13 and any audit, Action or other proceeding with respect to
Taxes. Such cooperation shall include the retention and (upon the other Party’s request) the
provision of records and information which are reasonably relevant to any such audit, Action or
other proceeding and causing employees or Representatives to be available on a mutually convenient
basis to provide additional information and explanation of any material provided hereunder. The
Purchaser and the Seller further agree, upon request, to use their reasonable best efforts to
obtain any certificate or other document from any Government Entity or any other Person as may be
necessary to mitigate, reduce or eliminate any Tax that could be imposed (including, but not
limited to, with respect to the transactions contemplated hereby).



     (h) Withholding Obligation. Prior to the Closing Date, the Purchaser and the Seller
shall and shall cause each member of their Relevant Group to properly and timely withhold, collect
and deposit all Taxes that are required to be withheld, collected and deposited under applicable
Law with respect to its Business.



     (i) Purchaser Liability for Taxes. The Purchaser shall be liable for and shall
indemnify the Seller in accordance with Article VIII hereof for all Taxes imposed on the Seller
Group or the Company or any of its Subsidiaries in connection with the Purchaser Restructuring,
including without limitation the transfer or license of Business Intellectual Property to Purchaser
Holdco without consideration, and the transfer of a 49% interest in Purchaser Holdco to the Seller.



     Section 5.15 Additional Covenants.



     (a) On the Closing Date, the Purchaser and the Seller shall cause the Company to (i) adopt the
Amended and Restated Articles of Association and (ii) in accordance with applicable Laws, Amended
and Restated Articles of Association and the Joint Venture Agreement, adopt resolutions of the
shareholders of the Company and of the board of directors of the Company for the purpose of
appointing nominees designated by the Purchaser to the board of directors of the Company.



     (b) Each of the Seller and the Purchaser shall ensure that all its Transferred Business Assets
are transferred or assigned to the Company Group as soon as practicable by the Closing Date. To
the extent that any Transferred Business Assets are not transferred or assigned to the Company
Group prior to the Closing Date, each of the Seller and the Purchaser shall, upon written demand by
the other, take all actions necessary to ensure that any such Business Assets are transferred as
soon as practicable after the Closing or to achieve an alternative solution by which the Company
shall receive the benefit of the relevant Transferred Business Assets.



     (c) To the extent that any Transferred Company Employees are not transferred to the employment
of the Company Group (or with respect to Seconded Non-U.S. Employees, assigned to the Company
Group),



52









 




immediately after the Closing Date, each of Seller and Purchaser shall, (i) upon written
demand by the other, take all actions necessary to ensure that any such Transferred Company
Employees are transferred or (if the Parties agree, seconded, pursuant to an appropriate
arrangement) within thirty (30) days after the Closing or to achieve an alternative solution by
which the Company Group shall receive the services of the relevant Transferred Company Employees.




     (d) Upon consummation of the Contemplated Transactions, the Company shall cause all Key
Business Employees to be bound by a written agreement or policy of the Company Group to maintain in
confidence all confidential or proprietary information acquired by them in the course of their
employment with the Company and to assign to the Company all inventions made by them within the
scope of their employment during such employment and for a reasonable period thereafter.



     (e) Each of the Seller and the Purchaser shall (i) hold its Transferred Business Assets in
trust for the Company and account for and pay or deliver to the Company (as soon as practicable
after receipt) any moneys, goods and other benefits which any member of its Relevant Group receives
after the Closing to the extent that they relate to its Business and/or its Business Assets; and
(ii) forward and transfer to the Company, as soon as practicable, any documents, information,
communications or correspondence which any member of its Relevant Group may receive from time to
time in relation to its Business, its Transferred Business Assets or its Transferred Company
Employees.



     (f) Without limiting the generality of Sections 5.15(b) and (c), the Seller and the Purchaser
agree that, in the event that any Consent necessary or desirable to preserve for the Business or
the Company any right or benefit under any Contract in respect of the Business is not obtained
prior to the Closing, each of the Purchaser and the Seller shall, subsequent to the Closing,
cooperate with the Company in attempting to obtain such Consent as promptly thereafter as
practicable.



     (g) The parties shall take all necessary actions to nominate and elect the Persons nominated
by the Purchaser and the Seller pursuant to the terms of the Joint Venture Agreement to the
Company’s board of directors, effective as soon as possible following the Closing.



     Section 5.16 Further Assurances.



     (a) At any time and from time to time after the Closing Date, each Party hereto agrees to: (a)
furnish upon request to each other such further assurances, information, documents, instruments of
transfer or assignment, files and books and records; (b) promptly execute, acknowledge and deliver
any such further assurances, documents, instruments of transfer or assignment, files and books and
records; (c) do all such further acts and things as such other Parties may reasonably request for
the purpose of carrying out the intent of this Share Purchase Agreement and the documents referred
to herein, including any filings and applications with any Government Entity to rescind or modify
any initial approvals by such Government Entity and (d) upon reasonable prior notice, make
available for consultation during normal business hours with representatives of the Company its
employees involved in the development of Transferred Owned Intellectual Property so as to permit
the Company to enjoy the full benefit of such Transferred Owned Intellectual Property.



     (b) The Seller shall use commercially reasonable efforts to assist the Company in the
collection of the Receivables set forth in Section 3.10(b) of the Seller and Company Disclosure
Schedules.



     Section 5.17 Breach by the Company Group. Any breach and/or nonfulfillment prior to
the Closing of any covenant, agreement and/or obligation of any member of the Company Group
contained in this Article V shall be deemed to be a breach and/or nonfulfillment of such covenant,
agreement and/or obligation by the Seller.



ARTICLE VI

CONDITIONS TO CLOSING







53









 








     Section 6.1 Conditions to the Obligations of the Purchaser and the Seller. The
respective obligations of the Purchaser and the Seller to consummate the transactions contemplated
hereby are subject to the satisfaction, at or prior to the Closing, of the following conditions:



     (a) Regulatory Matters. The Seller and Company Required Approvals and the Purchaser
Required Approvals shall have been obtained;



     (b) Merger Control Requirements. The consummation of the Purchase and the other
Contemplated Transactions shall be permissible pursuant to applicable merger control clearance
requirements, or the applicable waiting periods (and any extension thereof) under applicable merger
control provisions shall have expired or shall have been terminated and no investigation shall have
been instituted under any such merger control provision; and



     (c) No Prohibition. No Law or Order shall be in effect prohibiting the consummation
of the Purchase.



     (d) Other Transactions. The consummation of the transactions contemplated in the
Stock Purchase Agreement and the Refinancing has occurred or will occur simultaneously with the
consummation of the Contemplated Transactions.



     Section 6.2 Conditions to the Purchaser’s Obligations at the Closing. The Purchaser’s
obligations to purchase the Purchased Equity Interest at the Closing are subject to the
satisfaction, at or prior to the Closing, of the following additional conditions, any of which may
be waived in whole or in part by the Purchaser:



     (a) Representations and Warranties. The representations and warranties made by the
Seller and the Company in Article III and Article IV hereof shall be true and correct as of the
date hereof and as of the Closing Date in all material respects (without giving effect to any
limitation as to “materiality” or “Material Adverse Effect” set forth therein) in all material
respects as though made on and as of such date (except that representations and warranties that are
made as of a specific date need only be true and correct as of such dates). The Purchaser shall
have received a certificate signed by the chief executive officer of each of the Seller and the
Company to such effect.



     (b) Covenants. Each of the covenants, agreements, obligations and conditions of the
Seller to be performed and complied with on or prior to the Closing Date shall have been duly
performed or complied with in all material respects.



     (c) Restructuring. The Restructuring as contemplated in Section 5.7 shall be
complete, including:




     (i) the assignment, transfer, conveyance and delivery of the Seller Group’s Transferred
Business Assets;




     (ii) the entering into of the Pre-Closing Restructuring Agreements; and




     (iii) arrangements with respect to Key Business Employees of the Business of the Seller
Group being made pursuant to Section 5.7(d), including any relevant Key Business Employee
Agreements.



     (d) Transaction Documents. Members of the Seller Group and the Company Group shall
have executed and delivered the Transaction Documents to which they are a party.



     (e) Secretary’s Certificate. The Seller shall have delivered to the Purchaser (i)
copies of the resolutions of the board of directors (or other similar governing body) of the Seller
authorizing the execution, delivery and performance of this Share Purchase Agreement and each
Transaction Document to which the Seller is a party and approving the Contemplated Transactions and
(ii) a certificate of the Corporate Secretary of the Seller, dated as of the Closing Date, to the
effect that such resolutions were duly adopted and are in full force and effect.



54









 





     (f) Officer’s Certificate. The Company and the Seller shall each deliver to the
Purchaser a certificate executed by a duly authorized officer of the Seller, dated as of the
Closing Date, to the effect that the conditions specified in subsections (b), (c) and (g) of this
Section 6.2 have been satisfied.



     (g) No Material Adverse Effect. No event or events shall have occurred, or be
reasonably likely to occur, which, individually or in the aggregate, have, or could have, a
Material Adverse Effect with respect to the Seller or its Business.



     Section 6.3 Conditions to Obligations of the Seller. The Seller’s obligations to sell
the Purchased Equity Interest at the Closing to the Purchaser are subject to the satisfaction, at
or prior to such Closing, of the following additional conditions, any of which may be waived in
whole or in part by the Seller:



     (a) Representations and Warranties. The representations and warranties made by the
Purchaser in Article III and IV hereof shall be true and correct as of the date hereof and as of
the Closing Date (without giving effect to any limitation as to “materiality” or “Material Adverse
Effect” set forth therein) in all material respects as though made on and as of such date (except
that representations and warranties that are made as of a specific date need only be true and
correct as of such dates). The Seller shall have received a certificate signed by the chief
executive officer or equivalent functionary of the Purchaser to such effect.



     (b) Covenants. Each of the covenants, agreements, obligations and conditions of the
Purchaser to be performed and complied with on or prior to the Closing Date shall have been duly
performed or complied with in all material respects.



     (c) Transaction Documents. The Purchaser and its Affiliates shall have executed and
delivered the Transaction Documents to which they are a party.



     (d) Certificate. The Purchaser shall have delivered to the Seller (i) copies of the
resolutions of its governing body authorizing the execution, delivery and performance of this Share
Purchase Agreement and each Transaction Document to which the Purchaser is a party and approving
the Contemplated Transactions and (ii) a certificate executed by an authorized Person of the
Purchaser, dated as of the Closing Date, to the effect that such resolutions were duly adopted and
are in full force and effect.



     (e) Officer’s Certificate. The Purchaser shall have delivered to the Seller a
certificate executed by a duly authorized officer of the Purchaser, dated as of the Closing Date,
to the effect that the conditions specified in subsections (b) and (g) of this Section 6.3 have
been satisfied.



     (f) No Material Adverse Effect. No event or events shall have occurred, or be
reasonably likely to occur, which, individually or in the aggregate, have, or could have, a
Material Adverse Effect with respect to the Seller or its Business.



ARTICLE VII

TERMINATION




     Section 7.1 Termination. This Share Purchase Agreement may be terminated at any time
prior to the Closing:



     (a) by mutual agreement in writing among the Seller, the Company and the Purchaser;



     (b) by either the Purchaser or the Seller by giving notice of such termination to the other
Parties, if the Closing has not occurred by March 31, 2010 (the “Outside Date”);
provided, however, that the Seller or the Purchaser, as the case may be, has not
committed a material breach of this Share Purchase Agreement that shall have been the cause of, or
shall have resulted in, the failure of a condition to the consummation of the transactions
contemplated by this Share Purchase Agreement;



55









 





     (c) by the Purchaser at its sole discretion if, between the date hereof and the Closing: (i)
an event or condition occurs that has resulted in a Material Adverse Effect with respect to the
Seller’s Business or the Seller; (ii) any representations and warranties of the Seller contained in
this Share Purchase Agreement (A) that are not qualified by materiality or Material Adverse Effect
shall have become untrue in any material respect or (B) that are qualified by materiality or
Material Adverse Effect shall have become untrue, in either case such that the condition set forth
in Section 6.2(a) would not be satisfied as of the time such representation or warranty shall have
become untrue; (iii) the Seller shall not have complied in all material respects with the covenants
or agreements contained in this Share Purchase Agreement to be complied with by it (each of (ii)
and (iii), a “Terminating Seller Breach”); or (iv) any of the Seller or the Company makes a
general assignment for the benefit of creditors, or any bona fide proceeding shall be instituted by
or against any of the Seller or the Company seeking to adjudicate any of them as bankrupt or
insolvent, or seeking any of their liquidation, winding up or reorganization, or seeking any
arrangement, adjustment, protection, relief or composition of any of their debts under any Law
relating to bankruptcy, insolvency or reorganization; provided that, if the Terminating
Seller Breach is curable by the Seller, the Purchaser may not terminate this Share Purchase
Agreement under this Section 7.1(c) for so long as the Seller continues to exercise its reasonable
best efforts to cure such breach, unless such breach is not cured within twenty (20) Business Days
after notice of such breach is provided by the Purchaser to Seller;



     (d) by the Seller at its sole discretion if, between the date hereof and the Closing: (i) an
event or condition occurs that has resulted in a Material Adverse Effect with respect to the
Purchaser; (ii) any representations and warranties of the Purchaser contained in this Share
Purchase Agreement (A) that are not qualified by materiality shall have become untrue in any
material respect or (B) that are qualified by materiality shall have become untrue, in either case
such that the condition set forth in Section 6.3(a) would not be satisfied as of the time such
representation or warranty shall have become untrue; (iii) the Purchaser shall not have complied in
all material respects with the covenants or agreements contained in this Share Purchase Agreement
to be complied with by it (each of (ii) and (iii), a “Terminating Purchaser Breach”); or
(iv) the Purchaser makes a general assignment for the benefit of creditors, or any bona fide
proceeding shall be instituted by or against the Purchaser seeking to adjudicate any of them as
bankrupt or insolvent, or seeking any of their liquidation, winding up or reorganization, or
seeking any arrangement, adjustment, protection, relief or composition of any of their debts under
any Law relating to bankruptcy, insolvency or reorganization; provided that, if the
Terminating Purchaser Breach is curable by the Purchaser, the Seller may not terminate this Share
Purchase Agreement under this Section 7.1(d) for so long as the Purchaser continues to exercise its
reasonable best efforts to cure such breach, unless such breach is not cured within twenty (20)
Business Days after notice of such breach is provided by the Seller to the Purchaser.



     Section 7.2 Effect of Termination.



     (a) In the event of the termination of this Share Purchase Agreement by the Purchaser or by
the Seller in accordance with Section 7.1 hereof, this Share Purchase Agreement shall thereafter
become void and have no effect, and no Party hereto shall have any liability to the other Parties
hereto or their respective Affiliates, directors, officers or employees, except for the obligation
of the Parties hereto contained in this Section 7.2, in Sections 1.1 (Specific Definitions), 5.4
(Publicity), 5.5 (Expenses), 5.8 (Confidentiality), 5.16 (Further Assurances), Article VIII
(Survival; Indemnification; Certain Remedies), 9.9 (Notices), 9.10 (Dispute Resolution) and 9.12
(GOVERNING LAW).



     (b) The Purchaser agrees that if the Seller shall terminate this Share Purchase Agreement
pursuant to Section 7.1(d) hereof and at the time of such termination there is no state of facts or
circumstances that would cause the conditions set forth in Sections 6.1, 6.2(a) or 6.2(b) not to be
satisfied by the Outside Date (other than as a result of a material breach by the Purchaser of its
obligations under this Share Purchase Agreement) , then the Seller shall be entitled to receive
from the Purchaser US $5 million (the “Default Fee”).



     (c) The Seller agrees that if the Purchaser shall terminate this Share Purchase Agreement
pursuant to Section 7.1(c) hereof and at the time of such termination there is no state of facts or
circumstances that would cause the conditions set forth in Sections 6.1, 6.3(a) or 6.3(b) not to be
satisfied by the Outside Date (other than as a result of a material breach by the Purchaser of its
obligations under this Share Purchase Agreement) , then the Purchaser shall, together, be entitled
to receive from the Seller the Default Fee.



56









 





     (d) For the avoidance of doubt, neither the Seller nor the Purchaser is entitled to the
Default Fee if this Share Purchase Agreement is terminated under either Section 7.1(a) or (b) and,
except as provided in Section 7.1(a), the Company shall not be entitled to any right to terminate
or prevent any termination of this Share Purchase Agreement pursuant to Section 7.1.



     (e) The Default Fee shall be payable by the Purchaser or the Seller, as the case may be, in
immediately available funds as soon as practicable following such termination and, in any event, no
later than five (5) Business Days after such termination.



     (f) In addition to the Default Fee, each Party acknowledges and agrees that each Party retains
any and all of its rights under Law or equity under this Share Purchase Agreement prior to the
effective date of its termination; provided, however, that the amount that a Party
has a right to receive for a breach of this Share Purchase Agreement by the other Parties shall be
offset by the amount of the Default Fee, if any, paid to such other Parties.



ARTICLE VIII

SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES




     Section 8.1 Survival. All of the representations and warranties of the Parties hereto
contained in this Share Purchase Agreement and all claims and causes of action with respect thereto
(whether in contract, tort or otherwise) shall survive the Closing and shall terminate eighteen
(18) months after the Closing Date; provided, however, that (i) the representations
and warranties made pursuant to Sections 3.2 (Organization and Qualification), 3.3 (Corporate Power
and Binding Effect), the first sentence (solely to the extent relating to Relevant Required
Approvals) of 3.4 (Consents and Approvals), 3.5 (Non-Contravention), 4.1(a) (Organization and
Qualification of the Company Group), 4.1(b) (Capitalization of the Company), 4.1(c) (Valid Issuance
and Preemptive Rights), 4.2(a) (Organization and Qualification of Purchaser Holdco), 4.2(b)
(Capitalization of Purchaser Holdco) and 4.2(c) (Valid Issuance; Preemptive Rights) shall survive
indefinitely; (ii) the representations and warranties (x) dealing with Tax matters and (y) set
forth in Section 3.17 shall survive until one hundred and twenty (120) days after the expiration of
the relevant statute of limitations in question (giving effect to any waiver, mitigation or
extension thereof); (iii) insofar as any claim is made by the Purchaser for the breach of any
representation or warranty of the Seller contained herein relating to environmental matters, such
representations and warranties shall, for purposes of such claims by the Purchaser, survive the
Closing until the tenth (10th) anniversary of the Closing and (iv) insofar as any claim is made by
the Seller for the breach of any representation or warranty of the Purchaser contained herein
relating to environmental matters, such representations and warranties shall, for purposes of such
claims by the Seller, survive the Closing until the tenth (10th) anniversary of the
Closing. Section 8.2(h) shall survive the Closing or any termination of this Agreement for a
period of three (3) years after such event and Section 8.2(i) shall survive the Closing or any
termination of this Agreement for a period of two (2) years after such event. Neither the period of
survival nor the liability of the Seller or Purchaser with respect to the Seller’s or Purchaser’s,
as applicable, representations and warranties shall be reduced by any investigation made at any
time by or on behalf of the Purchaser or Seller, as applicable. If written notice of a claim has
been given prior to the expiration of the applicable representations and warranties by the
Purchaser to the Seller or vice versa, then the relevant representations and warranties shall
survive as to such claim, until such claim has been finally resolved.



     Section 8.2 Indemnification.



     (a) The Seller hereby agrees that it shall indemnify, defend and hold harmless the Purchaser
and its Affiliates and, if applicable, their respective directors, officers, shareholders,
partners, agents and employees and their successors and assigns (the “Purchaser Indemnified
Parties”) from, against and in respect of any damages, claims, losses, charges, actions, suits,
penalties and reasonable costs and expenses (including reasonable attorney’s fees), to the extent
determined by the final judgment or award of a court of competent jurisdiction or arbitration
tribunal or in connection with a settlement entered into in accordance with the terms and
conditions of this Share Purchase Agreement (collectively, the “Losses”), imposed on,
sustained, incurred or suffered by or asserted against any of the Purchaser Indemnified Parties,
relating to or arising out of: (i) any breach of any representation or warranty made by the Seller
contained in this Share Purchase Agreement, (ii) the breach of any covenant or



57









 




agreement (including those with respect to the Restructuring) of the Seller Group contained in
this Share Purchase Agreement, other than those, if any, that have been waived by the Purchaser and
(iii) any of the Seller Group’s Excluded Liabilities. The Seller agrees that, after the Closing,
it may not seek recovery against the Company, pursuant to any theory of subrogation, contribution
or otherwise of any Losses payable for any such breach, inaccuracy or nonfulfillment by the
Company.




     (b) The Purchaser hereby agrees that it shall indemnify, defend and hold harmless the Seller,
its Affiliates (including, for the avoidance of doubt, the Company prior to the Closing for
purposes of inclusion as a Seller Indemnified Party) and, if applicable, their respective
directors, officers, shareholders, partners, agents and employees and their successors and assigns
(the “Seller Indemnified Parties” and, together with the Purchaser Indemnified Parties, the
“Indemnified Parties”) from, against and in respect of any Losses, imposed on, sustained,
incurred or suffered by or asserted against any of the Seller Indemnified Parties, relating to or
arising out of: (i) any breach of any representation or warranty made by the Purchaser Group
contained in this Share Purchase Agreement; (ii) the breach of any covenant or agreement of the
Purchaser Group contained in this Share Purchase Agreement, other than those, if any, that have
been waived by the Seller; and (iii) any of the Purchaser Group’s Excluded Liabilities. The
Purchaser agrees that, after the Closing, it may not seek recovery against the Company, pursuant to
any theory of subrogation, contribution or otherwise of any Losses payable for any such breach,
inaccuracy or nonfulfillment by the Company.



     (c) The Company hereby agrees that it shall indemnify, defend and hold harmless the Purchaser
Indemnified Parties or the Seller Indemnified Parties, as applicable, from, against and in respect
of any Losses, imposed on, sustained, incurred or suffered by or asserted against any of the
Purchaser Indemnified Parties or the Seller Indemnified Parties, as applicable, relating to or
arising out of any of the Company Assumed Liabilities or any failure by the Company to assume and
discharge the Company Assumed Liabilities. The Company agrees that, after the Closing, it may not
seek recovery against the Purchaser Indemnified Parties or the Seller Indemnified Parties pursuant
to any theory of subrogation, contribution or otherwise of any Losses payable in connection with
the Company Assumed Liabilities.



     (d) The Indemnifying Party shall not be liable to the Indemnified Parties for any Losses
arising out of or resulting from any corrective or remedial action taken or permitted to be taken
by the Indemnified Parties unless the Indemnifying Party shall have consented to such corrective or
remedial action (such consent not to be unreasonably withheld). In determining whether a proposed
corrective or remedial action is reasonable, the parties shall take into account, among other
relevant factors, (A) the requirements of Law, (B) what is reasonably advisable in order to avoid a
material potential liability, (C) the industry standards and practices in respect of similar facts
and circumstances and (D) the monetary costs and benefits of such action (as opposed to no action
or alternative possible actions) to the Indemnified Parties (without regard to the existence of any
indemnification obligation of the Indemnifying Party under this Article VIII).



     (e) Notwithstanding anything to the contrary in this Share Purchase Agreement, the maximum
aggregate amount of Losses that may be recovered from any Party shall be limited to fifty percent
(50%) of the Cash Purchase Price; provided, however, that such limitation shall not
apply to Losses relating to or arising out any Excluded Liability or any Company Assumed Liability.



     (f) If the Closing occurs, no Party will have any Liability for Losses related to
breaches of the representations and warranties contained in Article III or Article IV and any
certificate related to such representations and warranties:




     (i) unless and until the aggregate Losses claimed under such Articles exceeds
US$1,000,000 (the “Threshold Amount”); provided, however, if the
aggregate amount of Losses claimed under Section 8.2(a) or (b) (as applicable) exceeds the
Threshold Amount, the Indemnifying Party will be obligated to indemnify the Indemnified
Parties from and against all such Losses relating back to and including the first dollar of
aggregate Losses so claimed; or



58









 






     (ii) unless the indemnification Claim arising as a result of a breach by a Party of a
representation or warranty made in this Share Purchase Agreement or any other certificate or
document that a Party has delivered pursuant to this Share Purchase Agreement, is made in
writing no later than the date on which the survival period as set forth herein for such
representation or warranty has expired.



     (g) Notwithstanding the foregoing in Section 8.2(e), the limitations on each Party’s Liability
for Losses set forth above in Section 8.2(e) shall not apply to (A) Losses related to any breach of
the representations and warranties set forth in 3.2 (Organization and Qualification), 3.3
(Corporate Power and Binding Effect), 3.5 (Non-Contravention), 3.7(c) (Title), 3.17 (Tax Matters),
3.25 (Environmental Matters), as to the Seller, 4.1(a) (Organization and Qualification of the
Company Group), 4.1(b) (Capitalization of the Company), 4.1(c) (Valid Issuance and Preemptive
Rights), and as to the Purchaser, 4.2(a) (Organization and Qualification of Purchaser Holdco),
4.2(b) (Capitalization of Purchaser Holdco) and 4.2(c) (Valid Issuance and Preemptive Rights) or
(B) any Losses resulting from any fraudulent act or willful misconduct by such Party liable for
such Loss.



     (h) Notwithstanding anything else to the contrary in this Section 8.2 and in this Agreement,
the Seller hereby agrees that it shall indemnify, defend and hold harmless the Purchaser, its
Affiliates, the Company Group and their respective directors, officers, shareholders, partners,
advisors, attorneys, agents, employees and other representatives and their successors and assigns
(the “Purchaser Representatives”) from, against and in respect of any and all damages,
claims, losses, charges, actions, suits, penalties and costs and expenses (including attorney’s
fees) imposed on, sustained, incurred or suffered by or asserted against any of the Purchaser
Representatives, relating to or arising out of any Actions or Claims by present or former
stockholders of the Seller in connection with the Contemplated Transactions, the transactions
contemplated by the Stock Purchase Agreement, the Warrants, the Convertible Promissory Notes, the
Refinancing and any other transactions contemplated by the Transaction Term Sheet (the
“Pingpong Transaction”).



     (i) The Seller shall use its commercially reasonable efforts to fully and finally resolve all
pending Claims or Actions by stockholders of the Seller in connection with the Pingpong Transaction
as soon as practicable after the Closing.



     Section 8.3 Third-Party Claim Indemnification Procedures.



     (a) In the event that any written claim or demand for which the Seller, the Purchaser or the
Company (each, an “Indemnifying Party”) may have liability to any Indemnified Party
hereunder is asserted against or sought to be collected from any Indemnified Party by a third party
(a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than
ten (10) calendar days following such Indemnified Party’s receipt of a Third-Party Claim, notify
the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of
damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive
of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant
time constraints relating thereto and, to the extent practicable, any other material details
pertaining thereto (a “Claim Notice”). The Indemnifying Party shall have thirty (30)
calendar days (or such lesser number of days set forth in the Claim Notice as may be required by
court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the
“Notice Period”) to notify the Indemnified Party that it desires to defend the Indemnified
Party against such Third-Party Claim.



     (b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice
Period that it desires to defend the Indemnified Party against a Third-Party Claim, the
Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings
and shall have the sole power to direct and control such defense at its expense. Once the
Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall
have the right, but not the obligation, to participate in any such defense and to employ separate
counsel of its choosing. The Indemnified Party shall participate in any such defense at its own
expense unless the Indemnifying Party and the Indemnified Party are both named parties to the
proceedings and the Indemnified Party shall have reasonably concluded that representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. The Indemnifying Party shall not, without the prior written consent of the
Indemnified Party, settle, compromise or offer to settle or compromise any Third-



59









 




Party Claim on a basis that would result in (i) the imposition of a consent order, injunction
or decree that would restrict the future activity or conduct of the Indemnified Party or any of its
Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any
Person by the Indemnified Party or any of its Affiliates, or (iii) any monetary liability of the
Indemnified Party that will not be paid or reimbursed by the Indemnifying Party. The Indemnifying
Party shall not be liable for fees and expenses of more than one counsel for the Indemnified Party
(except for fees and expenses of any local counsel).




     (c) If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party
Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or
otherwise, the Indemnified Party shall have the right but not the obligation to assume its own
defense; it being understood that the Indemnified Party’s right to indemnification
for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party
Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.



     (d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the
proper and adequate defense of a Third-Party Claim, including by providing access to each other’s
relevant business records and other documents and employees; it being
understood that the costs and expenses of the Indemnified Party relating thereto shall be
Losses for purposes of Section 8.2(a).



     (e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to
avoid production of confidential information (except as required by applicable Law and accorded
appropriate confidentiality protection), and to cause all communications among employees, counsel
and others representing any party to a Third-Party Claim to be made so as to preserve any
applicable attorney-client or work-product privileges.



     Section 8.4 No Consequential Damages. Subject to the rights and remedies under
Section 7.2, notwithstanding anything to the contrary contained in this Share Purchase Agreement
(other than Section 7.2) or provided for under any applicable Law, in no event shall the Parties
hereto have any liability as against any Indemnified Party for any indirect, incidental,
consequential, special, exemplary or punitive damages whether based on breach of contract, tort
(including negligence) or otherwise, or any loss of future revenue, income or profits or any
diminution of value relating to the breach or alleged breach hereof, whether or not the possibility
of such damages has been disclosed to the other Parties in advance or could have been reasonably
foreseen by such other Parties; and any such damages in the foregoing shall not be included in the
Losses hereunder.



     Section 8.5 Adjustments to Losses.



     (a) Insurance. In calculating the amount of any Losses, the proceeds actually
received by the Indemnified Party or any of its Affiliates under any insurance policy or pursuant
to any claim, recovery, settlement or payment by or against any other Person, net of any actual
costs, expenses or premiums incurred in connection with securing or obtaining such proceeds, shall
be deducted therefrom. In the event that an Indemnified Party has any rights against a third party
with respect to any occurrence, claim or loss that results in a payment by an Indemnifying Party
under this Article VIII, such Indemnifying Party shall, except as provided in Section 8.2, be
subrogated to such rights to the extent of such payment; provided that until the
Indemnified Party recovers full payment of the Losses related to any such claim, any and all claims
of the Indemnifying Party against any such third party on account of said indemnity payment are
hereby expressly made subordinate and subject in right of payment to the Indemnified Party’s rights
against such third party. Without limiting the generality or effect of any other provision hereof,
each Indemnified Party and Indemnifying Party shall duly execute upon request all instruments
reasonably necessary to evidence and perfect the subrogation and subordination rights detailed
herein, and otherwise cooperate in the prosecution of such claims.



     (b) Taxes. In calculating the amount of any Losses, there shall be deducted an amount
equal to any net Tax benefit actually realized (including the utilization of a Tax loss or Tax
credit carried forward but ignoring the effect of any shortfall in payment or provision for Tax
payable) as a result of such Losses by the Party claiming such Losses.



60









 





     (c) Reimbursement. If an Indemnified Party recovers an amount from a third party in
respect of any Losses that is the subject of indemnification hereunder after all or a portion of
such Losses has been paid by an Indemnifying Party pursuant to this Article VIII, the Indemnified
Party shall promptly remit to the Indemnifying Party the excess (if any) of (i) the amount paid by
the Indemnifying Party in respect of such Losses, plus the amount received from the third party in
respect thereof, less (ii) the full amount of Losses. For the avoidance of doubt, no Indemnified
Party shall be entitled to recover damages or obtain payment, reimbursement, restitution or
indemnity more than once in respect of any one fact, matter, event or circumstance that gives rise
to more than one claim.



     Section 8.6 Payments. The Indemnifying Party shall pay all amounts payable pursuant
to this Article VIII, by wire transfer of immediately available funds, promptly following receipt
from an Indemnified Party of a bill, together with all accompanying reasonably detailed back-up
documentation, for any Losses that are the subject of indemnification hereunder, unless the
Indemnifying Party in good faith disputes such Losses, in which event it shall so notify the
Indemnified Party. In any event, the Indemnifying Party shall pay to the Indemnified Party, by
wire transfer of immediately available funds, the amount of any Losses for which it is liable
hereunder no later than ten (10) days following any final determination of such Losses and the
Indemnifying Party’s liability therefor. A “final determination” shall exist when (i) the parties
to the dispute have reached an agreement in writing, or (ii) an arbitration panel shall have
rendered a final non-appealable determination with respect to disputes the parties have agreed to
submit thereto pursuant to Section 9.10.



     Section 8.7 Mitigation. Each Indemnified Party shall use its commercially reasonable
efforts to mitigate any indemnifiable Losses. In the event an Indemnified Party fails to so
mitigate any indemnifiable Losses, the Indemnifying Party shall have no liability for any portion
of such Losses that reasonably could have been avoided had the Indemnified Party made such efforts.
Without limiting the foregoing, after any Indemnified Party acquires knowledge of any fact or
circumstance that results in or would be reasonably expected to result in any indemnifiable Losses
or Third-Party Claim hereunder, the Indemnified Party shall notify the Indemnifying Party promptly
and implement, and cause each other Indemnified Party to implement, such commercially reasonable
actions as the Indemnified Party shall request in writing for the purposes of mitigating the
possible Losses arising therefrom (such actions, “Mitigation Actions”). In determining
whether a proposed Mitigation Action is reasonable, the Parties will take into account, among other
relevant factors, (i) the requirements of Law, (ii) what is reasonably advisable in order to avoid
a material potential liability, (iii) the industry standards and practices in respect of similar
facts and circumstances and (iv) the monetary costs and benefits of such action (as opposed to no
action or alternative possible actions), without regard to the existence of any indemnification
obligation of the Parties under this Article VIII.



     Section 8.8 Tax Treatment of Indemnity Payments. The Parties agree to treat all
payments made by any of them to or for the benefit of any other Party (including any payments to
the Company) under any indemnity provisions of this Share Purchase Agreement and for any
misrepresentations or breaches of warranties or covenants as adjustments to the Cash Purchase Price
or as capital contributions for Tax purposes and that such treatment shall govern for purposes
hereof except to the extent that the Laws of a particular jurisdiction provide otherwise, in which
case such payments shall be made in an amount sufficient to indemnify the relevant Party on an
after Tax basis.



     Section 8.9 Seller’s and Purchaser’s Tax Obligations. The Seller and the Purchaser
shall be responsible for all their Relevant Group’s Taxes with respect to the Contemplated
Transactions. The Seller shall indemnify the Purchaser Indemnified Parties for any Losses of the
Purchaser or the Company Group suffered by or asserted against the Purchaser or the Company Group
in respect of such Taxes of the Seller and the Purchaser shall indemnify the Seller Indemnified
Parties for any Losses of the Seller Group suffered by or asserted against the Seller in respect of
such Taxes of the Purchaser Group.



ARTICLE IX

MISCELLANEOUS




     Section 9.1 Amendment and Waiver. Any provision of this Share Purchase Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the
case of an amendment, by the Seller and the Purchaser, or, in the case of a waiver, by the Party
against whom the waiver is to be effective.



61









 




Any amendment or waiver in accordance with this Section 9.1 shall be binding on all Parties
hereto, including all of their successors and permitted assigns and transferees, even if they do
not execute any consent with respect to such amendment or waiver.




     Section 9.2 No Waiver. No waiver of any provision of this Share Purchase Agreement
shall be effective unless set forth in a written instrument signed by the Party waiving such
provision. No failure or delay by a Party in exercising any right, power or remedy under this
Share Purchase Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or remedy hereunder preclude any further exercise thereof or the
exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party
of any breach by any other Party of any provision hereof shall be deemed to be a waiver of a
subsequent breach of that or any other provision hereof.



     Section 9.3 Assignment. No Party to this Share Purchase Agreement may, whether by
contract, operation of law or otherwise, assign any of its rights or delegate any of its
obligations under this Share Purchase Agreement without the prior written consent of the other
Parties hereto, and any purported assignment without such consent shall be void and without effect.



     Section 9.4 Parties in Interest; No Third Party Beneficiaries. This Share Purchase
Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective
successors and permitted assigns. Nothing in this Share Purchase Agreement, express or implied, is
intended to confer upon any Person other than the Purchaser, the Seller, the Company, the
Indemnified Parties or their respective successors or permitted assigns, any rights or remedies
under or by reason of this Share Purchase Agreement.



     Section 9.5 Entire Agreement. This Share Purchase Agreement and the additional
agreements and instruments referenced herein contain the entire understanding of the Parties with
respect to the subject matter covered herein and therein and supersede all prior agreements and
understandings (whether written or oral) between the Parties with respect to the subject matter
hereof, including, but not limited to, the Transaction Term Sheet (which shall, upon the execution
and delivery hereof, terminate and be rendered null and void); provided however, that
notwithstanding the foregoing, the terms of the Confidentiality Agreement shall remain in full
force and effect. Except as specifically set forth herein or therein, no Party makes any
representation, warranty, covenant or undertaking with respect to any such matters. Each Party
expressly represents and warrants that it is not relying on any oral or written representations,
warranties, covenants or agreements outside of this Share Purchase Agreement.



     Section 9.6 Schedules. The inclusion of any matter in any schedule to this Share
Purchase Agreement shall expressly not be deemed to constitute an admission by the Company, or
otherwise imply, that any such matter is material or creates a measure for materiality for the
purposes of this Share Purchase Agreement. Any updating or amendment of schedules in the Relevant
Disclosure Schedule in this Share Purchase Agreement shall be for informational purposes only and
shall not modify or otherwise qualify the representations and warranties associated with such
Relevant Disclosure Schedule.



     Section 9.7 Counterparts. This Share Purchase Agreement (or any agreement that
amends, modifies or supplements this Share Purchase Agreement) may be executed in any number of
counterparts and by the Parties in separate counterparts, including counterparts transmitted by
telecopier or facsimile, in Chinese or English, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the same agreement.



     Section 9.8 Section Headings. The section and paragraph headings and table of
contents contained in this Share Purchase Agreement are for reference purposes only and shall not
in any way affect the meaning or interpretation of this Share Purchase Agreement.



     Section 9.9 Notices. All notices or other communications required or permitted to be
given under this Share Purchase Agreement shall be in writing in both Chinese and English and shall
be deemed to have been fully given on the date delivered by hand or by a generally recognized
courier service (with relevant fees prepaid), or by other messenger (or, if delivery is refused,
upon presentment) or upon receipt by facsimile transmission



62









 





(provided, that the confirmation of such facsimile transmission is delivered by hand
or by a generally recognized courier service to the addressee of the facsimile within five (5) days
of the delivery of the facsimile), or upon delivery by registered or certified mail (return receipt
requested), postage prepaid, to the Parties at the following addresses (or at such other address as
such Party may designate by fifteen (15) days’ advance written notice to the other Parties to this
Share Purchase Agreement given in accordance with this Section 9.9):



If to the Seller:

ION Geophysical Corporation

2105 CityWest Blvd. Suite 400

Houston, Texas 77042-2839

United States of America

Attention: Mr. David L. Roland

Facsimile: (+001-281) 879 3600



If to the Purchaser:



BGP Inc., China National Petroleum Corporation

No. 189, West Fanyang Street,

Zhuo Zhou 072751, Hebei

People’s Republic of China

Attention: Mr. Huasheng Zheng

Facsimile: (+86-10) 8120 1392



If to the Company:



Prior to the Closing: (same as the Seller)



Following the Closing:



INOVA Geophysical Equipment Limited 

Room 612, Sixth Floor, E5-C1 Building, Finance Street

No.20 Guangchang East Road

Tianjin Economic Development Area, Tianjin

People’s Republic of China



Attention: Mr. Zhu Qiang

Facsimile: (+86-10) 8120 1392



or to such other Persons or addresses as the Person to whom notice is given may have previously
furnished in writing to the Party giving such notice in the manner set forth above
(provided that notice of any change of address shall be effective only upon receipt
thereof).




     Section 9.10 Dispute Resolution.



     (a) Each of the Parties hereto agrees all disputes arising among the Parties in connection
with the Transaction Documents, or the breach, termination, interpretation or validity thereof,
shall be finally settled by the Hong Kong International Arbitration Centre (the “HKIAC”)
pursuant to UNCITRAL Rules with the Seller, on the one hand, being entitled to designate one
arbitrator, and with the Purchaser, on the other hand, being entitled to designate one arbitrator,
while the third arbitrator will be selected by agreement between the two designated arbitrators or,
failing such agreement, within ten (10) calendar days of initial consultation between the two
arbitrators, by the HKIAC pursuant to its arbitration rules. If any Party fails to designate its
arbitrator within twenty (20) calendar days after the designation of the first of the three
arbitrators, the HKIAC shall have the authority to



63









 




designate any person whose interests are neutral to the Parties as the second of the three
arbitrators. The arbitration shall be conducted in Chinese and English. To the extent consistent
with UNCITRAL Rules, each of the Parties hereto shall cooperate with the others in provision of
information during any discovery process relating to arbitrations in connection with the
Transaction Documents. The Parties hereto further agree that, to the extent consistent with
UNCITRAL Rules, the Parties shall be entitled to seek temporary and permanent injunctive relief
from the arbitrators without the necessity of proving actual damages and without posting a bond or
other security.




     (b) Each of the Parties hereto agrees that notice may be served upon such Party at the address
and in the manner set forth for such Party in Section 9.9.



     (c) To the extent permitted by applicable laws, each of the Parties hereto hereby
unconditionally waives trial by jury in any legal action or proceeding relating to the Transaction
Documents or the Contemplated Transactions.



     Section 9.11 Specific Performance. The Parties agree and acknowledge that either
Party shall be entitled to an injunction or injunctions or other equitable relief to prevent any
breach or threatened breach of this Share Purchase Agreement or to enforce specifically any of the
terms and provisions hereof.



     Section 9.12 GOVERNING LAW. THIS SHARE PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.



     Section 9.13 Language. This Share Purchase Agreement and any amendments hereto shall
be in Chinese and English. The Chinese version and the English version shall be given equal weight
in the interpretation of this Share Purchase Agreement and shall have equal validity and legal
effect.



     Section 9.14 Severability. The provisions of this Share Purchase Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof. If any provision of this Share Purchase
Agreement, or the application thereof to any Person or any circumstance, is found to be invalid or
unenforceable: (a) a suitable and equitable provision shall be substituted therefor in order to
carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Share Purchase Agreement and the application
of such provision to other Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof, in any other jurisdiction.



     Section 9.15 No Strict Construction. The Parties have participated jointly in the
negotiation and drafting of this Share Purchase Agreement. In the event an ambiguity or question
of intent or interpretation arises under any provision of this Share Purchase Agreement, this Share
Purchase Agreement shall be construed as if drafted jointly by the Parties, and no presumption or
burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any
provision of this Share Purchase Agreement.



[Remainder of page intentionally left blank]



64









 





     IN WITNESS WHEREOF, this Share Purchase Agreement has been signed on behalf of each of the
Parties hereto as of the date first written above.



	 	 	 	 	 
	 	ION GEOPHYSICAL CORPORATION

 	 
	 	By:  	\s\ Robert P. Peebler
 	 
	 	 	Name:  	Robert P. Peebler 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	INOVA GEOPHYSICAL EQUIPMENT LIMITED

 	 
	 	By:  	\s\ Robert P. Peebler
 	 
	 	 	Name:  	Robert P. Peebler 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	BGP INC., CHINA NATIONAL PETROLEUM CORPORATION

 	 
	 	By:  	\s\ Wang Tiejun
 	 
	 	 	Name:  	Wang Tiejun 	 
	 	 	Title:  	President & Executive Director