SHARE EXCHANGE AGREEMENT
EXHIBIT 10.1
This
SHARE EXCHANGE AGREEMENT (this “Agreement”), dated as
of December 1, 2009, is by and among Clavis Technologies International Co.,
Ltd., a Nevada corporation (the “Parent”), Clavis
Technologies Co., Ltd., a corporation formed under the laws of the Republic of
Korea (the “Company”), and the
Stockholders of the Company that are signatories hereto (the “Stockholders”).
The
Company has 245,800 shares of its capital stock (the “Company Stock”)
issued and outstanding, all of which are held by the
Stockholders. Each of the Stockholders is the record and beneficial
owner of the number of shares of Company Stock set forth opposite such
Stockholder’s name on Exhibit
A. Each of the Stockholders has agreed to transfer all of his,
her or its (hereinafter “its”) shares of
Company Stock in exchange for the number of newly issued shares of Common Stock,
par value $0.001 per share, of the Parent (the “Parent Stock”) listed
opposite such Stockholder’s name on Exhibit A, which in
the aggregate amount to a total of 45,000,000 shares of Parent Stock (the “Shares”).
The
exchange of Company Stock for Parent Stock is intended to constitute a
reorganization within the meaning of Section 368(a)(1)(B) of the Internal
Revenue Code of 1986 (the “Code”), as amended or
such other tax free reorganization exemptions that may be available under the
Code.
The Board
of Directors of the Parent and of the Company has determined that it is
desirable to effect this plan of reorganization and share exchange.
AGREEMENT
ARTICLE
I
SECTION
1.01. Exchange by
Stockholders. At the Closing (as defined in Section 1.02
below), each of the Stockholders shall sell, transfer, convey, assign and
deliver to the Parent its Company Stock free and clear of all Liens (as defined
in Section 2.01 below) in exchange for the number of Shares listed on Exhibit A opposite
such Stockholder’s name.
SECTION
1.02. Closing. The
closing (the “Closing”) of the
transactions contemplated hereby (the “Transactions”) shall
take place on the date hereof or on such later date as the parties hereto may
agree (the “Closing
Date”).
ARTICLE
II
Each of
the Stockholders hereby severally (and not jointly) represents and warrants to
the Parent with respect to itself, as follows:
SECTION
2.01. Good
Title. The Stockholder is the record and beneficial owner to
the shares of Company Stock held by him or her, and has good title to its
Company Stock, with the right and authority to sell and deliver such Company
Stock to the Parent. Upon delivery of any certificate or certificates
duly assigned, representing the same as herein contemplated and/or upon
registering of the Parent as the new owner of the Company Stock in the share
register of the Company, the Parent will receive good title to its Company
Stock, free and clear of all liens, security interests, mortgages, pledges,
charges, equities and claims of any kind or other encumbrances of any nature
whatsoever (collectively, “Liens”), voting
trusts or stockholder agreements.
SECTION
2.02. Enforceability. All
acts required to be taken by the Stockholders to enter into this Agreement and
to carry out the Transactions have been properly taken. This
Agreement constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against such Stockholder in accordance with the terms
hereof.
SECTION
2.03. No
Conflicts. The execution and delivery of this Agreement by the
Stockholder and the performance by the Stockholder of its obligations hereunder
in accordance with the terms hereof: (i) will not require the consent of any
third party or any federal, state, local or foreign government or any court of
competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (“Governmental Entity”)
under any statutes, laws, ordinances, rules, regulations, orders, writs,
injunctions, judgments, or decrees (collectively, “Laws”) applicable to
the Company, the Stockholder or its Company Stock; (ii) will not violate any
Laws applicable to such Stockholder or its Company Stock and (iii) will not
violate or breach any contractual obligation to which such Stockholder is a
party.
SECTION
2.04. No Finder’s
Fee. The Stockholder has not created any obligation for any
finder’s, investment banker’s or broker’s fee in connection with this Agreement
or with the Transactions.
SECTION
2.05. Purchase Entirely for Own
Account. The Parent Stock to be issued to the Stockholder
hereunder will be acquired for investment for the Stockholder’s own account, and
not with a view to the resale or distribution of any part thereof, and the
Stockholder has no present intention of selling or otherwise distributing the
Parent Stock, except in compliance with applicable securities laws.
SECTION
2.06. Available
Information. The Stockholder has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of investment in the Parent.
2
SECTION
2.07. Non-Registration. The
Stockholder understands that the Parent Stock issued to it under this
Agreement has not been registered under the Securities Act of 1933,
as amended (the “Securities Act”) and,
if issued in accordance with the provisions of this Agreement, will be issued by
reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Stockholder’s representations as
expressed herein.
SECTION
2.08. Restricted
Securities. The Stockholder understands that the Parent Stock is
characterized as “restricted securities” under the Securities Act inasmuch as
this Agreement contemplates that, if acquired by the Stockholder pursuant
hereto, the Parent Stock would be acquired in a transaction not involving a
public offering. The Stockholder further acknowledges that if the
Parent Stock is issued to the Stockholder in accordance with the provisions of
this Agreement, such Parent Stock may not be resold without registration under
the Securities Act or the existence of an exemption therefrom. In
this connection, the Stockholder represents that it is familiar with Rule 144
promulgated under the Securities Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Securities Act.
SECTION
2.09. Legends. The
Stockholder understands that the certificates representing Parent Stock to be
issued under this Agreement will bear one or all of the following legends or any
legend substantially similar to the following:
(a) “THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF
SUCH ACT.”
(b) Any
legend required by the “blue sky” laws of any state to the extent such laws are
applicable to the securities represented by the certificate so
legended.
ARTICLE
III
In order
to induce the Parent to enter into this Agreement and to issue the Shares to the
Stockholders, the Company and each of the Stockholders severally (and not
jointly) hereby make the following representations and warranties to the
Parent:
SECTION
3.01. Organization, Standing and
Power. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the Republic of Korea and has
the requisite corporate power to own, lease and operate its properties and
assets and to conduct its business as it is now being conducted. The
Company is duly qualified as a foreign corporation to do business and is in good
standing in every jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except for any
jurisdiction(s) (alone or in the aggregate) in which the failure to be so
qualified will not have a Material Adverse Effect. For the purposes
of this Agreement, “Material Adverse
Effect” shall mean any adverse effect on an entity’s business,
operations, assets, prospects or financial condition of such entity, taken as a
whole, and which is material to such entity or other entities controlling or
controlled by such entity or which is likely to materially hinder the
performance by such entity of its obligations hereunder.
3
SECTION
3.02. Company
Subsidiaries. The Company does not have any
Subsidiaries. For the purposes of this Agreement, “Subsidiary” shall
mean, with respect to any corporation or other entity, any corporation or other
entity of which at least a majority of the securities or other ownership
interest having ordinary voting power (absolutely or contingently) for the
election of directors or other persons performing similar functions are at the
time owned directly or indirectly by such corporation or other entity and/or any
of its other Subsidiaries
SECTION
3.03. Capital
Structure. The authorized capital stock of the Company
consists of 2,000,000 shares of common stock, of which, 238,334 shares are
issued and outstanding. Except as set forth above, no shares of
capital stock or other voting securities of the Company are issued, reserved for
issuance or outstanding. All outstanding shares of the capital stock
of the Company are duly authorized, validly issued, fully paid and nonassessable
and not subject to or issued in violation of any purchase option, call option,
right of first refusal, preemptive right, subscription right or any similar
right under any provision of the applicable corporation law or any contract to
which the Company is a party or otherwise bound. There are not any
bonds, debentures, notes or other indebtedness of Company having the right to
vote (or convertible into, or exchangeable for, securities having the right to
vote) on any matters on which holders of shares of common stock of the Company
may vote (“Voting
Company Debt”). Except as set forth on Schedule 3.03, as of
the date of this Agreement, there are not any options, warrants, rights,
convertible or exchangeable securities, “phantom” stock rights, stock
appreciation rights, stock-based performance units, commitments, Contracts,
arrangements or undertakings of any kind to which the Company is a party or by
which its is bound (i) obligating the Company to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock or
other equity interests in, or any security convertible or exercisable for or
exchangeable into any capital stock of or other equity interest in, the Company
or any Voting Company Debt, (ii) obligating the Company to issue, grant, extend
or enter into any such option, warrant, call, right, security, commitment,
contract, arrangement or undertaking or (iii) that give any person the right to
receive any economic benefit or right similar to or derived from the economic
benefits and rights occurring to holders of the capital stock of the
Company. As of the date of this Agreement, there are not any
outstanding contractual obligations of the Company to repurchase, redeem or
otherwise acquire any shares of capital stock of the Company.
SECTION
3.04. Authority; Execution and
Delivery; Enforceability. The Company has the requisite
corporate power and authority to enter into and perform this
Agreement. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated thereby have been duly and validly authorized by all necessary
corporate action, and no further consent or authorization of the Company or its
Board of Directors or stockholders is required. This Agreement has
been duly executed and delivered by the Company. This Agreement
constitutes a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, reorganization, moratorium, liquidation,
conservatorship, receivership or similar laws relating to, or affecting
generally the enforcement of, creditor’s rights and remedies or by equitable
principles or remedies of general application.
4
SECTION
3.05. No Conflicts;
Consents.
(a) The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not and
will not (i) violate any provision of the Articles of Incorporation or the
Bylaws of the Company, (ii) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond,
license, lease agreement, instrument or obligation to which the Company is a
party or by which the Company’s properties or assets are bound, (iii) create or
impose a lien, mortgage, security interest, charge or encumbrance of any nature
on any property or asset of the Company under any agreement or any commitment to
which the Company is a party or by which the Company is bound or by which any of
its properties or assets are bound, or (iv) result in a violation of any
federal, state, local or foreign statute, rule, regulation, order, judgment or
decree (including U.S. federal and state securities laws and regulations and the
securities laws and regulations of the Republic of Korea) applicable to the
Company or by which any property or asset of the Company is bound or affected,
except, in all cases other than violations pursuant to clause (iv) (with respect
to U.S. federal and state securities laws) above, for such conflicts, defaults,
terminations, amendments, acceleration, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse
Effect. The business of the Company is not being conducted in
violation of any Laws, except for possible violations which, singularly or in
the aggregate, do not and will not have a Material Adverse
Effect. The Company is not required under federal, state, foreign or
local law, rule or regulation to obtain any consent, authorization or order of,
or make any filing or registration with, any Governmental Entity in order for it
to execute, deliver or perform any of its obligations under the this
Agreement.
(b) Except as
set forth in Schedule
3.05 hereto, no material consent, approval, license, permit, order or
authorization (“Consent”) of, or
registration, declaration or filing with, or permit from, any Governmental
Entity is required to be obtained or made by or with respect to the Company in
connection with the execution, delivery and performance of this Agreement or the
consummation of the Transactions.
5
SECTION
3.06. Taxes. Except
as set forth on Schedule 3.06 hereto,
the Company has accurately prepared and filed all governmental and other tax
returns required by Korean or U.S. law to be filed by it, has paid or made
provisions for the payment of all taxes shown to be due and all additional
assessments, and adequate provisions have been and are reflected in the
financial statements of the Company for all current taxes and other charges to
which the Company is subject and which are not currently due and
payable. The Company has no knowledge of any additional assessments,
adjustments or contingent tax liability of any nature whatsoever, whether
pending or threatened against the Company for any period, nor of any basis for
any such assessment, adjustment or contingency.
SECTION
3.07. Employees. The
Company does not have any collective bargaining arrangements or agreements
covering any of its employees. Except as set forth on Schedule 3.07, the
Company does not have and, after giving effect to the Transactions, will not
have, any employment contract, agreement regarding proprietary information,
non-competition agreement, non-solicitation agreement, confidentiality
agreement, or any other similar contract or restrictive covenant, relating to
the right of any officer, employee or consultant to be employed or engaged by
the Company. Since September 30, 2009, no officer, consultant or
key employee of the Company whose termination, either individually or in the
aggregate, could have a Material Adverse Effect, has terminated or, to the
knowledge of the Company, has any present intention of terminating his or her
employment or engagement with the Company.
SECTION
3.08. Litigation. There
is no action, suit, claim, investigation, arbitration, alternate dispute
resolution proceeding or other proceeding pending or, to the knowledge of the
Company, threatened against the Company which questions the validity of this
Agreement or the Transactions or any action taken or to be taken pursuant
hereto. There is no action, suit, claim, investigation, arbitration,
alternate dispute resolution proceeding or other proceeding pending or, to the
knowledge of the Company, threatened against or involving the Company or any of
its properties or assets, which, individually or in the aggregate, would have a
Material Adverse Effect. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, arbitrator or governmental or
regulatory body against the Company or any officers or directors of the Company
in their capacities as such, which, individually or in the aggregate, would have
a Material Adverse Effect.
SECTION
3.09. Compliance with Applicable
Laws. The business of the Company has been and is presently
being conducted in accordance with all applicable Laws, except for any
noncompliance with such Laws that, individually or in the aggregate, would not
have a Material Adverse Effect. The Company has all franchises,
permits, licenses, consents and other governmental or regulatory authorizations
and approvals necessary for the conduct of its business as now being conducted
by it unless the failure to possess such franchises, permits, licenses, consents
and other governmental or regulatory authorizations and approvals, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
SECTION
3.10. Brokers. The
Company has not employed any broker or finder or incurred any liability for any
brokerage or investment banking fees, commissions, finders’ structuring fees,
financial advisory fees or other similar fees in connection with this Agreement
or the Transactions.
6
SECTION
3.11. Contracts. Except
for this Agreement and as set forth on Schedule 3.11 hereto,
the Company is not a party to any written or oral contract, instrument,
agreement, commitment, obligation, plan or arrangement, a copy of which would be
required to be filed with the Securities and Exchange Commission (the “Commission”) if the
Company were registering securities under the Securities Act (collectively,
“Company Material
Agreements”). Except as set forth on Schedule 3.11 hereto,
the Company has in all material respects performed all the obligations required
to be performed by it to date under its Company Material Agreements, has
received no notice of default and, to the best of the Company’s knowledge, is
not now, and after giving effect to the Transactions will not be, in default
under any the Company Material Agreement now in effect, the result of which
could cause a Material Adverse Effect.
SECTION
3.12. Title to
Properties. The Company has and, after giving effect to the
Transactions, will continue to have, good and marketable title to all of its
real and personal property, free and clear of any Liens, except for those
indicated on Schedule
3.12 hereto or such Liens that, individually or in the aggregate, do not
have a Material Adverse Effect. All material leases of the Company
are valid and subsisting and in full force and effect.
SECTION
3.13. Intellectual
Property. Schedule 3.13
contains a complete and correct list of all patents, trademarks, patent and/or
trademark applications, domain names (whether or not registered) and any
patentable improvements or copyrightable derivative works thereof, websites and
intellectual property rights relating thereto, service marks, trade names,
copyrights, licenses and authorizations, and all rights with respect to the
foregoing owned or licensed by the Company (collectively, the “Company Proprietary
Rights”). The Company owns or possesses and, after giving
effect to the Transactions, will continue to own or possess, all the Company
Proprietary Rights which are necessary for the conduct of its business as now
conducted without any conflict with the rights of others. Except as
disclosed on Schedule
3.13 hereto, (i) as of the date of this Agreement, the Company has not
received any written notice that any Company Proprietary Rights have been
declared unenforceable or otherwise invalid by any court or governmental agency
or will become unenforceable or otherwise invalid as a result of the
Transactions, and (ii) as of the date of this Agreement, there is, to the
knowledge of the Company, no material existing infringement, misuse or
misappropriation of any Company Proprietary Rights by others that could have a
Material Adverse Effect. The Company has not received any written
notice alleging that the operation of the business of the Company infringes in
any material respect upon the intellectual property rights of
others.
SECTION
3.14. Environmental
Compliance. Except as disclosed on Schedule 3.14 hereto,
the Company has obtained all material approvals, authorization, certificates,
consents, licenses, orders and permits or other similar authorizations of all
governmental authorities, or from any other person, that are required under any
Company Environmental Laws for the operation of its business as currently
conducted and for the consummation of the Transactions. Schedule 3.14 hereto
sets forth all material permits, licenses and other authorizations issued under
any Company Environmental Laws to the Company. “Company Environmental
Laws” shall mean all governmental laws applicable to the Company relating
to the protection of the environment including, without limitation, all
requirements pertaining to reporting, licensing, permitting, controlling,
investigating or remediating emissions, discharges, releases or threatened
releases of hazardous substances, chemical substances, pollutants, contaminants
or toxic substances, materials or wastes, whether solid, liquid or gaseous in
nature, into the air, surface water, groundwater or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of hazardous substances, chemical substances, pollutants,
contaminants or toxic substances, material or wastes, whether solid, liquid or
gaseous in nature. Except as set forth on Schedule 3.14
7
hereto,
the Company has and, after giving effect to the Transactions, will continue to
have, all necessary governmental approvals required under all the Company
Environmental Laws and used in its business, except for such instances as would
not, individually or in the aggregate, have a Material Adverse
Effect. The Company is also in compliance with all other limitations,
restrictions, conditions, standards, requirements, schedules and timetables
required or imposed under all Company Environmental Laws where non-compliance
could have a Material Adverse Effect. Except for such instances as
would not individually or in the aggregate have a Material Adverse Effect, there
are no past or present events, conditions, circumstances, incidents, actions or
omissions relating to or in any way affecting the Company that violate or may
violate any Company Environmental Law after the Closing or that may give rise to
any Environmental Liabilities, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study or investigation (i) under any Company
Environmental Law, or (ii) based on or related to the manufacture, processing,
distribution, use, treatment, storage (including, without limitation,
underground storage tanks), disposal, transport or handling, or the emission,
discharge, release or threatened release of any hazardous substance. “Company Environmental
Liabilities” means all liabilities of a person (whether such liabilities
are owed by such person to governmental authorities, third parties or otherwise)
currently in existence or arising hereafter and which arise under or relate to
any Company Environmental Law.
SECTION
3.15. Financial
Statements. As of their respective dates, the financial
statements of the Company annexed to Schedule 3.15 hereto
and previously delivered to the Parent (the “Company Financial
Statements”) comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with U.S. generally
accepted accounting principles (“GAAP”) applied on a
consistent basis during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto, or (ii) in the case
of unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements), and fairly present in all material
respects the financial position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit
adjustments).
SECTION
3.16. No Material Adverse
Change. Since September 30, 2009, no event or condition has occurred with
respect to the Company which has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION
3.17. Transactions With Affiliates
and Employees. Except as set forth on Schedule 3.17 hereto,
there are no loans, leases, agreements, contracts, royalty agreements,
management contracts or arrangements or other continuing transactions between
(i) the Company or any of its customers or suppliers, on the one hand, and (ii)
on the other hand, any officer, employee, consultant or director of the Company,
or any person owning any capital stock of the Company or any member of the
immediate family of such officer, employee, consultant, director or stockholder
or any corporation or other entity controlled by such officer, employee,
consultant, director or stockholder.
8
SECTION
3.18. Internal Accounting
Controls. The books, records and documents of the Company
accurately reflect in all material respects the information relating to the
business of the Company, the location and collection of its assets, and the
nature of all transactions giving rise to the obligations or accounts receivable
of the Company. The Company maintains a system of internal accounting
controls sufficient, in the judgment of the Company’s board of directors, to
provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate actions are taken
with respect to any differences.
SECTION
3.19. No Undisclosed
Liabilities. Except as disclosed on Schedule 3.19 hereto,
the Company has no liabilities, obligations, claims or losses (whether
liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent
or otherwise) other than those set forth on the balance sheet as of September
30, 2009 included in the Company Financial Statements or incurred in the
ordinary course of the Company’s business since September 30, 2009, and which,
individually or in the aggregate, do not or would not have a Material Adverse
Effect on the Company.
SECTION
3.20. Indebtedness. Schedule 3.20 hereto
sets forth as of the date hereof all outstanding secured and unsecured
Indebtedness of the Company, or for which the Company has commitments, which is
not disclosed in the Company Financial Statements. The Company is not
in default with respect to any Indebtedness. For the purposes of this
Agreement, “Indebtedness” shall
mean (i) any liabilities for borrowed money in excess of $25,000 (other than
trade accounts payable incurred in the ordinary course of business), (ii) all
guaranties, endorsements and other contingent obligations in respect of
Indebtedness of others in excess of $25,000, whether or not the same are or
should be reflected in the Company’s balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business, and (iii)
the present value of any lease payments in excess of $25,000 due under leases
required to be capitalized in accordance with GAAP.
SECTION
3.21. Disclosure. To
the best of the Company’s knowledge, neither this Agreement nor any other
documents, certificates or instruments furnished to the Parent by or on behalf
of the Company in connection with this Agreement and/or the Transactions
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements made herein or therein, in the
light of the circumstances under which they were made herein or therein, not
misleading.
SECTION
3.22. Additional
Agreements. Other than this
Agreement, the Company does not have any agreement or understanding with the
Parent, any Stockholder or any other person or entity with respect to the
Transactions or any other transactions contemplated by this
Agreement.
9
SECTION
3.23. Absence of Certain
Developments. Except as set forth on Schedule 3.22 hereto,
since September 30, 2009, the Company has not:
(a) issued
any stock, bonds or other corporate securities or any rights, options or
warrants with respect thereto;
(b) borrowed
any amount or incurred or become subject to any liabilities (absolute or
contingent) except current liabilities incurred in the ordinary course of
business which are comparable in nature and amount to the current liabilities
incurred in the ordinary course of business during the comparable portion of its
prior fiscal year, as adjusted to reflect the current nature and volume of the
Company’s business;
(c) discharged
or satisfied any material lien or encumbrance or paid a material amount of any
obligation or liability (absolute or contingent), other than current liabilities
paid in the ordinary course of business;
(d) declared
or made any payment or distribution of cash or other property to any Stockholder
with respect to its stock, or purchased or redeemed, or made any agreements so
to purchase or redeem, any shares of its capital stock;
(e) sold,
assigned or transferred any other tangible assets, or canceled any debts or
claims, except in the ordinary course of business;
(f) sold,
assigned or transferred any Company Proprietary Rights, which sale, assignment
or transfer has had a Material Adverse Effect, or disclosed any proprietary
confidential information to any person except in the ordinary course of business
or to the Parent or its representatives;
(g) suffered
any substantial losses or waived any rights of material value, whether or not in
the ordinary course of business, or suffered the loss of any material amount of
prospective business;
(h) made any
changes in employee compensation except in the ordinary course of business and
consistent with past practices;
(i) made
capital expenditures or commitments therefor that aggregate in excess of
$25,000;
(j) entered
into any other transaction other than in the ordinary course of business, or
entered into any other material transaction, whether or not in the ordinary
course of business;
(k) suffered
any material damage, destruction or casualty loss, whether or not covered by
insurance; and/or
10
(l) experienced
any material problems with labor or management in connection with the terms and
conditions of their employment, or entered into an agreement, written or
otherwise, to take any of the foregoing actions.
ARTICLE
IV
In order
to induce the Company and the Stockholders to enter into this Agreement and to
induce the Stockholders to exchange their Company Stock for the Shares, the
Parent hereby makes the following representations and warranties to the Company
and the Stockholders:
SECTION
4.01. Organization, Good Standing
and Power. Parent is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Nevada and has the
requisite corporate power to own, lease and operate its properties and assets
and to conduct its business as it is now being conducted. Parent does
not have any Subsidiaries or own securities of any kind in any other
entity. Prior to giving effect to the Transactions, Parent is not
duly qualified as a foreign corporation to do business in any jurisdiction and
such failure to be so qualified does not have a Material Adverse
Effect.
SECTION
4.02. Subsidiaries. Prior
to giving effect to the Transactions, the Parent has no
Subsidiaries.
SECTION
4.03. Capitalization. The
authorized capital stock of Parent consists of (i) One Hundred Million
(100,000,000) shares of Common Stock, par value $0.001 per share, and (ii) Ten
Million (10,000,000) shares of Preferred Stock, par value $0.001 per
share. The Parent has 15,000,000 shares of Common Stock issued and
outstanding as of the date of this Agreement. The Parent Stock to be
issued to the Stockholders pursuant to this Agreement, when issued hereunder,
will be duly and validly authorized and are validly issued, fully paid and
non-assessable. No shares of Parent Stock (including, but not
limited to the shares of Parent Stock to be issued to the Stockholders pursuant
to this Agreement) or any other security of Parent are entitled to preemptive
rights or registration rights and, except for this Agreement, there are no
outstanding options, warrants, scrip, rights to subscribe to, call or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of Parent. Except as
provided on Schedule
4.03 hereto, there are no contracts, commitments, understandings, or
arrangements by which Parent is or may become bound to issue additional shares
of the capital stock of Parent or options, securities or rights convertible into
shares of capital stock of Parent. Except as provided in this
Agreement, Parent is not a party to or bound by any agreement or understanding
granting registration or anti-dilution rights to any person with respect to any
of its equity or debt securities. Parent is not a party to, and it
has no knowledge of, any agreement or understanding restricting the voting or
transfer of any shares of the capital stock of Parent. Parent has furnished or
made available to the Stockholders and the Company true and correct copies of
Parent’s Articles of Incorporation as in effect on the date hereof (the “Parent Charter”), and
Parent’s Bylaws as in effect on the date hereof (the “Parent
Bylaws”).
11
SECTION
4.04. Authority;
Enforcement. Parent has the requisite corporate power and
authority to enter into and perform this Agreement and to issue and sell the
Shares in accordance with the terms hereof. The execution, delivery
and performance of this Agreement by Parent and the consummation by Parent of
the Transactions have been duly and validly authorized by all necessary
corporate action, and no further consent or authorization of Parent or its Board
of Directors or stockholders is required. This Agreement has been
duly executed and delivered by Parent. This Agreement constitutes a
valid and binding obligation of Parent enforceable against Parent in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, reorganization, moratorium, liquidation, conservatorship,
receivership or similar laws relating to, or affecting generally the enforcement
of, creditor’s rights and remedies or by equitable principles or remedies of
general application
SECTION
4.05. No
Conflicts. The execution, delivery and performance of this
Agreement by Parent and the consummation by Parent of the Transactions do not
and will not (i) violate any provision of the Parent Charter or Parent Bylaws,
(ii) conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
agreement, mortgage, deed of trust, indenture, note, bond, license, lease
agreement, instrument or obligation to which Parent is a party or by which
Parent’s properties or assets are bound, (iii) create or impose any Liens on any
property or asset of Parent under any agreement or any commitment to which
Parent is a party or by which Parent is bound or by which any of its properties
or assets are bound, or (iv) result in a violation of any result in a violation
of any federal, state, local or foreign statute, rule, regulation, order,
judgment or decree (including U.S. federal and state securities laws and
regulations and the securities laws and regulations of the Republic of Korea)
applicable to the Parent or by which any property or asset of the Parent is
bound or affected, except, in the case of (i) above and in all cases other than
violations pursuant to clause (iv) (with respect to U.S. federal and state
securities laws) above, for such conflicts, defaults, terminations, amendments,
acceleration, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect. The business of Parent is
not being conducted in violation of any Laws, except for possible violations,
which singularly or in the aggregate, do not and will not have a Material
Adverse Effect. Parent is not required under federal, state, foreign
or local law, rule or regulation to obtain any consent, authorization or order
of, or make any filing or registration with, any Governmental Entity in order
for it to execute, deliver or perform any of its obligations under this
Agreement or issue and sell the Shares, in accordance with the terms hereof
(other than any filings which may be required to be made by Parent with the
Commission or state securities administrators subsequent to the Closing, or any
registration statement which may be filed by the Parent).
SECTION
4.06. Commission Documents;
Commission Filings; Financial Statements. The Parent Stock is
not currently registered pursuant to Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”). The Parent will use its reasonable best efforts to
register the Parent Stock under the Exchange Act and, thereafter, the Parent
will timely file all reports, schedules, forms, statements and other documents
required to be filed by it with the Commission pursuant to the reporting
requirements of the Exchange Act, including material filed pursuant to Section
13(a) or 15(d) of the Exchange Act.
12
SECTION
4.07. Issuance of
Securities. The Shares to be issued at the Closing have been
duly authorized by all necessary corporate action and, when paid for or issued
in accordance with the terms hereof, the Shares shall be validly issued and
outstanding, fully paid and nonassessable and free and clear of all Liens and
the holders shall be entitled to all rights accorded to a holder of Parent
Stock.
SECTION
4.08. Absence of Certain
Developments. Except as set forth on Schedule 4.08 hereto,
since September 11, 2009 (the date of formation of the Parent), the Parent has
not:
(a) issued
any stock, bonds or other corporate securities or any rights, options or
warrants with respect thereto;
(b) borrowed
any amount or incurred or become subject to any liabilities (absolute or
contingent) except current liabilities incurred in the ordinary course of
business which are comparable in nature and amount to the current liabilities
incurred in the ordinary course of business during the comparable portion of its
prior fiscal year, as adjusted to reflect the current nature and volume of
Parent’s business;
(c) discharged
or satisfied any material lien or encumbrance or paid a material amount of any
obligation or liability (absolute or contingent), other than current liabilities
paid in the ordinary course of business;
(d) declared
or made any payment or distribution of cash or other property to stockholders
with respect to its stock, or purchased or redeemed, or made any agreements so
to purchase or redeem, any shares of its capital stock;
(e) sold,
assigned or transferred any other tangible assets, or canceled any debts or
claims, except in the ordinary course of business;
(f) sold,
assigned or transferred any patent rights, trademarks, trade names, copyrights,
trade secrets or other intangible assets or intellectual property rights, which
sale, assignment or transfer has had a Material Adverse Effect, or disclosed any
proprietary confidential information to any person except in the ordinary course
of business or to the Purchasers or their representatives;
(g) suffered
any substantial losses or waived any rights of material value, whether or not in
the ordinary course of business, or suffered the loss of any material amount of
prospective business;
(h) made any
changes in employee compensation except in the ordinary course of business and
consistent with past practices;
(i) made
capital expenditures or commitments therefor that aggregate in excess of
$25,000;
13
(j) entered
into any other transaction other than in the ordinary course of business, or
entered into any other material transaction, whether or not in the ordinary
course of business;
(k) suffered
any material damage, destruction or casualty loss, whether or not covered by
insurance;
(l) experienced
any material problems with labor or management in connection with the terms and
conditions of their employment; or
(m) entered
into an agreement, written or otherwise, to take any of the foregoing
actions.
SECTION
4.09. Taxes. As
of the date of this Agreement, Parent (i) is not required to prepare and file
any federal, state and other tax returns required by law to be filed by
corporations and/or (ii) pay or make provisions for the payment of any taxes or
assessments. Parent has no knowledge of any additional assessments,
adjustments or contingent tax liability (whether federal or state) of any nature
whatsoever, whether pending or threatened against Parent for any period, nor of
any basis for any such assessment, adjustment or contingency.
SECTION
4.10. Employees. Parent
has no employees.
SECTION
4.11. ERISA. No
liability to the Pension Benefit Guaranty Corporation has been incurred with
respect to any Plan by the Parent which is or would cause a Material Adverse
Effect. The execution and delivery of this Agreement and the issue
and sale of the Shares will not involve any transaction which is subject to the
prohibitions of Section 406 of ERISA or in connection with which a tax could be
imposed pursuant to Section 4975 of the Internal Revenue Code of 1986, as
amended (the “Code”); provided
that, if any Stockholder, or any person or entity that owns a beneficial
interest in any Stockholder, is an “employee pension benefit plan” (within the
meaning of Section 3(2) of ERISA) with respect to which Parent is a “party in
interest” (within the meaning of Section 3(14) of ERISA), the requirements of
Sections 407(d)(5) and 408(e) of ERISA, if applicable, are met. As
used in this Section 4.11, the term “Plan” shall mean an
“employee pension benefit plan” (as defined in Section 3 of ERISA) which is or
has been established or maintained, or to which contributions are or have been
made, by Parent or by any trade or business, whether or not incorporated, which,
together with Parent or any Subsidiary, is under common control, as described in
Section 414(b) or (c) of the Code.
SECTION
4.12. Litigation. There
is no action, suit, claim, investigation, arbitration, alternate dispute
resolution proceeding or other proceeding pending or, to the knowledge of the
Parent, threatened against the Parent which questions the validity of this
Agreement or any of the Transactions or any action taken or to be taken pursuant
hereto. There is no action, suit, claim, investigation, arbitration,
alternate dispute resolution proceeding or other proceeding pending or, to the
knowledge of the Parent, threatened against or involving the Parent or any of
its properties or assets, which individually or in the aggregate, would have a
Material Adverse Effect. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, arbitrator or governmental or
regulatory body against the Parent or any officers or directors of the Parent in
their capacities as such, which, individually or in the aggregate, would have a
Material Adverse Effect.
14
SECTION
4.13. Compliance with
Law. The business of the Parent has been and is presently
being conducted in accordance with all applicable federal, state and local
governmental laws, rules, regulations and ordinances, except as set forth in
Schedule 4.13
or such that, individually or in the aggregate, the noncompliance therewith
would not have a Material Adverse Effect. The Parent has all
franchises, permits, licenses, consents and other governmental or regulatory
authorizations and approvals necessary for the conduct of its business as now
being conducted by it unless the failure to possess such franchises, permits,
licenses, consents and other governmental or regulatory authorizations and
approvals, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
SECTION
4.14. Contracts. Except
for this Agreement, the Parent is not a party to any written or oral contract,
instrument, agreement, commitment, obligation, plan or arrangement.
SECTION
4.15. Title to
Assets. The Parent does not own or lease any real and/or
personal property.
SECTION
4.16. Intellectual
Property. The Parent does not own or license any patents,
trademarks, domain names (whether or not registered) and any patentable
improvements or copyrightable derivative works thereof, websites and
intellectual property rights relating thereto, service marks, trade names,
copyrights, licenses and authorizations, and all rights with respect to the
foregoing held by Parent.
SECTION
4.17. No Material Adverse
Change. Since September 11, 2009, no event has occurred which
has or could reasonably be expected to have a Material Adverse
Effect.
SECTION
4.18. No Undisclosed
Liabilities. The Parent has no liabilities, obligations,
claims or losses (whether liquidated or unliquidated, secured or unsecured,
absolute, accrued, contingent or otherwise) other than those incurred in the
ordinary course of the Parent’s business since September 11, 2009, and which,
individually or in the aggregate, do not or would not have a Material Adverse
Effect on Parent.
SECTION
4.19. Transactions With
Affiliates. Except for this Agreement, there are no loans,
leases, agreements, contracts, royalty agreements, management contracts or
arrangements or other continuing transactions between (i) the Parent or any of
its customers or suppliers, on the one hand, and (ii) on the other hand, any
officer, employee, consultant or director of the Parent, or any person owning
any capital stock of the Parent or any member of the immediate family of such
officer, employee, consultant, director or stockholder or any corporation or
other entity controlled by such officer, employee, consultant, director or
stockholder.
SECTION
4.20. Books and Records; Internal
Accounting Controls. The books, records and documents of the
Parent accurately reflect in all material respects the information relating to
the business of the Parent, the location and collection of its assets, and the
nature of all transactions giving rise to the obligations or accounts receivable
of the Parent.
15
SECTION
4.21. No Undisclosed Events or
Circumstances. Since September 11, 2009, except as disclosed
on Schedule
4.21 hereto, no event or circumstance has occurred or exists with respect
to the Parent or its business, properties, prospects, operations or financial
condition, which, under applicable law, rule or regulation, requires public
disclosure or announcement by the Parent but which has not been so publicly
announced or disclosed.
SECTION
4.22. Governmental
Approvals. Except for the filing of any notice prior or
subsequent to the Closing that may be required under applicable state and/or
federal securities laws (which if required, shall be filed on a timely basis),
no authorization, consent, approval, license, exemption of, filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, is or will be necessary
for, or in connection with, the Transactions, or, except as set forth in this
Agreement, for the performance by the Parent of its obligations under this
Agreement.
SECTION
4.23. Indebtedness. The
Parent has no secured or unsecured Indebtedness, and has no Indebtedness for
which the Parent has commitments.
SECTION
4.24. Public Utility Holding
Company Act and Investment Company Act Status. The Parent is
not a “holding company” or a “public utility company” as such terms are defined
in the Public Utility Holding Company Act of 1935, as amended. The Parent is
not, and as a result of and immediately upon Closing and after giving effect to
the Transactions will not be, an “investment company” or a company “controlled”
by an “investment company”, within the meaning of the Investment Company Act of
1940, as amended.
SECTION
4.25. Disclosure. To
the best of the Parent’s knowledge, neither this Agreement nor any other
documents, certificates or instruments furnished to the Company or the
Stockholders by or on behalf of the Parent in connection with the Transactions
and this Agreement contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements made herein or
therein, in the light of the circumstances under which they were made herein or
therein, not misleading.
SECTION
4.26. Certain
Fees. The Parent has not employed any broker or finder or
incurred any liability for any brokerage or investment banking fees,
commissions, finders’ structuring fees, financial advisory fees or other similar
fees in connection with the Transactions or this Agreement.
SECTION
4.27. Securities Act of
1933. Assuming the accuracy and completeness of the
representations, warranties and covenants of the Stockholders contained herein,
the Parent has complied and will comply with all applicable federal and state
securities laws in connection with the offer, issuance and sale of the Shares
hereunder and no registration under the Securities Act is required for the offer
and sale of the Shares by the Parent to the Stockholders under this
Agreement. Neither Parent nor anyone acting on its behalf, directly
or indirectly, has or will sell, offer to sell or solicit offers to buy any of
the Shares, or similar securities to, or solicit offers with respect thereto
from, or enter into any preliminary conversations or negotiations relating
thereto with, any person, or has taken or will take any action so as to require
registration of the issuance and sale of any of the Shares under the
registration provisions of the Securities Act and applicable state securities
laws. Neither Parent nor any of its affiliates, nor any person acting
on its or their behalf, has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D under the Securities
Act) in connection with the offer or sale of any of the Shares. The Parent is eligible to register the Parent Stock for
resale by any holder thereof (including, but not limited to, the Stockholders)
under Form S-1 promulgated under the Securities Act. Except as set
forth on Schedule 4.27 hereto, the Parent has not granted or agreed to grant
to any person any rights (including “piggy-back” registration rights) to have
any securities of the Parent registered with the Commission or any other
governmental authority that have not been satisfied.
16
SECTION
4.28. Application of Takeover
Protections. The Parent has
taken all necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the
Parent's Charter (or similar charter documents) or the laws of its state of
incorporation that is or could become applicable to the Stockholders as a result
of the Stockholders and the Parent fulfilling their obligations or exercising
their rights under this Agreement, including, without limitation, the Parent's
issuance of the Shares and the Stockholders’ ownership of the
Shares.
SECTION
4.29. No Additional
Agreements. The Parent does not
have any agreement or understanding with any Stockholder with respect to the
transactions contemplated by this Agreement other than as specified in this
Agreement.
ARTICLE
V
SECTION
5.01. Deliveries of the
Stockholders.
(a) Concurrently
herewith each Stockholder is delivering to the Parent this Agreement executed by
such Stockholder along with the Schedules to the representations and warranties
of the Stockholders.
(b) At or
prior to the Closing, each Stockholder shall deliver to the Parent (subject to
the provisions of Section 6.01):
(i) certificates
representing such Stockholder’s Company Stock; and
(ii) duly
executed stock powers for transfer by the Stockholder of its Company Stock to
the Parent.
SECTION
5.02. Deliveries of the
Parent.
(a) Concurrently
herewith, the Parent is delivering:
(i) to each
Stockholder and to the Company, a copy of this Agreement executed by the Parent
along with the Schedules to the representations and warranties of the
Parent;
17
(ii) to the
Company, a certificate from the Parent, signed by its Secretary or Assistant
Secretary certifying that the attached copies of the Parent Charter, Parent
Bylaws and resolutions of the Board of Directors and stockholders of the Parent
approving the Agreement and the Transactions are all true, complete and correct
and remain in full force and effect;
(iii) to the
Company, an opinion of counsel to the Parent and substantially in the form
attached hereto as Exhibit
B;
(iv) to the
Company, all books and records of the Parent.
(b) At or
immediately after the Closing, the Parent shall deliver (subject to the
provisions of Section 6.02):
(i) to each
Stockholder, certificates representing the Shares issued to such Stockholder as
set forth on Exhibit
A.
SECTION
5.03. Deliveries of the
Company.
(a) Concurrently
herewith, the Company is delivering to the Parent:
(i) this
Agreement executed by Company along with the Schedules to the representations
and warranties of the Company; and
(ii) a
certificate from the Company, signed by its authorized officer certifying that
the attached copies (in English) of the Company’s Articles of Incorporation and
Bylaws and resolutions of the Board of Directors of the Company approving this
Agreement and the Transactions are all true, complete and correct and remain in
full force and effect.
ARTICLE
VI
SECTION
6.01. Stockholder and the Company
Conditions Precedent. The obligations of the Stockholders and
the Company to enter into and complete the Closing is subject, at the option of
the Stockholders and the Company, to the fulfillment on or prior to the Closing
Date of the following conditions:
(a) Representations and
Covenants. The representations and warranties of the Parent
contained in this Agreement shall be true in all material respects on and as of
the Closing Date with the same force and effect as though made on and as of the
Closing Date. The Parent shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by the Parent on or prior to the Closing
Date. The Parent shall have delivered to the Company, if requested, a
certificate, dated the Closing Date, to the foregoing effect.
18
(b) Litigation. No
action, suit or proceeding shall have been instituted before any court or
governmental or regulatory body or instituted or threatened by any governmental
or regulatory body to restrain, modify or prevent the carrying out of the
Transactions or to seek damages or a discovery order in connection with such
Transactions, or which has or may have, in the reasonable opinion of the
Company, a materially adverse effect on the assets, properties, business,
operations or condition (financial or otherwise) of the Parent.
(c) No Material Adverse
Change. There shall not have been any occurrence, event,
incident, action, failure to act, or transaction since September 11, 2009 which
has had or is reasonably likely to cause a Material Adverse Effect with respect
to the Parent.
(d) Post-Closing
Capitalization. At, and immediately after, the Closing, the
authorized capitalization, and the number of issued and outstanding shares of
the capital stock of the Company and the Parent, on a fully-diluted basis, shall
be as specified in Schedule
6.01(d).
(e) Deliveries. The
deliveries specified in Section 5.02 shall have been made by the
Parent.
SECTION
6.02. Parent Conditions
Precedent. The obligations of the Parent to enter into and
complete the Closing is subject, at the option of the Parent, to the fulfillment
on or prior to the Closing Date of the following conditions, any one or more of
which may be waived by the Parent in writing.
(a) Representations and
Covenants. The representations and warranties of the
Stockholders and the Company contained in this Agreement shall be true in all
material respects on and as of the Closing Date with the same force and effect
as though made on and as of the Closing Date. The Stockholders and
the Company shall have performed and complied in all material respects with all
covenants and agreements required by this Agreement to be performed or complied
with by the Stockholders and the Company on or prior to the Closing
Date. The Company shall have delivered to the Parent, if requested, a
certificate, dated the Closing Date, to the foregoing effect.
(b) Litigation. No
action, suit or proceeding shall have been instituted before any court or
governmental or regulatory body or instituted or threatened by any governmental
or regulatory body to restrain, modify or prevent the carrying out of the
Transactions or to seek damages or a discovery order in connection with such
Transactions, or which has or may have, in the reasonable opinion of the Parent,
a materially adverse effect on the assets, properties, business, operations or
condition (financial or otherwise) of the Company.
(c) No Material Adverse
Change. There shall not have been any occurrence, event,
incident, action, failure to act, or transaction since September 30, 2009 which
has had or is reasonably likely to cause a Material Adverse Effect with respect
to the Company and/or the Company Stock.
19
(d) Deliveries. The
deliveries specified in Section 5.01 and Section 5.03 shall have been made by
the Stockholders and the Company, respectively.
(e) Post-Closing
Capitalization. At, and immediately after, the Closing, the
authorized capitalization, and the number of issued and outstanding shares of
the capital stock of the Company and the Parent, on a fully-diluted basis, shall
be as specified in Schedule
6.01(d).
ARTICLE
VII
SECTION
7.01. Blue Sky
Laws. The Parent shall take any action (other than qualifying
to do business in any jurisdiction in which it is not now so qualified) required
to be taken under any applicable state securities laws in connection with the
issuance of the Shares in connection with this Agreement and pursuant to the
Transactions.
SECTION
7.02. Public
Announcements. The Parent and the Company will consult with
each other before issuing, and provide each other the opportunity to review and
comment upon, any press release or other public statements with respect to the
Agreement and the Transactions and shall not issue any such press release or
make any such public statement prior to such consultation, except as may be
required by applicable Law, court process or by obligations pursuant to any
listing agreement with any national securities exchange.
SECTION
7.03. Fees and
Expenses. All fees and expenses incurred in connection with
this Agreement shall be paid by the party incurring such fees or expenses,
whether or not this Agreement is consummated.
SECTION
7.04. Continued
Efforts. Each party hereto shall use commercially reasonable
efforts to (a) take all action reasonably necessary to consummate the
Transactions, and (b) take such steps and do such acts as may be necessary
to keep all of its representations and warranties true and correct as of the
Closing Date with the same effect as if the same had been made, and this
Agreement had been dated, as of the Closing Date.
SECTION
7.05. Conduct of
Business.
During the period from the date hereof through the Closing Date, the Parent and
the Company shall carry on their respective businesses in the ordinary and usual
course consistent with past practice.
SECTION
7.06. Furnishing of
Information. As long as any Stockholder owns any Shares and is
not eligible to sell any Shares under Rule 144(b) promulgated under the
Securities Act, upon and after the registration of the Parent Stock under the
Exchange Act, the Parent covenants to use its reasonable best efforts to timely
file (or obtain extensions in respect thereof and file within the applicable
grace period) all reports that the Parent will be required to file pursuant to
the Exchange Act. As long as any Stockholder owns Shares and is not
eligible to sell any Shares under Rule 144(b), if the Parent is not required to
file reports pursuant to such laws, it will prepare and furnish to the
Stockholders and make publicly available in accordance with Rule 144(c)
promulgated by the Commission pursuant to the Securities Act, such information
as is required for the Stockholder to sell the Shares under Rule
144. The Parent further covenants that it will take such further
action as any holder of Shares may reasonably request, all to the extent
required from time to time to enable such person to sell the Shares without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144.
20
SECTION
7.07. Integration. The
Company shall not, and shall use its best efforts to ensure that no affiliate of
the Company shall, sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Shares in a manner
that would require the registration under the Securities Act of the acquisition
of the Shares by the Stockholders pursuant to the Agreement, or that would be
integrated with the offer or sale of the Shares for purposes of the rules and
regulations of any trading market in a manner that would require stockholder
approval of the sale of the securities to the Stockholders.
SECTION
7.08. Listing of Parent
Stock. The Parent agrees that (i) if the Parent applies to
have Parent Stock listed for trading on any exchange or any market operated by
NASDAQ or be eligible for quotation on the OTC Bulleting Board, the Parent will
include in such application the Shares, and will take such other action as is
necessary or desirable to cause the Shares to be listed on such exchange or
NASDAQ market or be eligible for such quotation, in each case as
promptly as possible, and (ii) the Parent will take all action reasonably
necessary to continue the listing and trading of Parent Stock on any such
exchange or NASDAQ market or continue the eligibility for quotation and will
comply in all material respects with the Parent’s reporting, filing and other
obligations under the bylaws or rules of the trading market or OTC Bulletin
Board, as the case may be.
ARTICLE
VIII
SECTION
8.01. Notices. All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given upon receipt by the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to the
Parent, to:
c/o Fox
Law Offices, P.A.
000
Xxxxxx Xxxxxx, Xxxx #00
Xxxxxx,
XX 00000
Attention: Xxxxxxx
Xxx, Esq.
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
21
If to the
Stockholders or the Company, to:
c/o Clavis Technologies Co., Ltd.
#0000-0,
Xxxxxx Xxxx., 0xx Xxxxx
Xxxxxx0-Xxxx
Xxxxxx-Xx,
Xxxxx, Xxxxx 137-874
Attention: Ki-Young
You
Telecopy: (000)
00-0-0000-0000
Telephone: (000)
00-0-0000-0000
with a
copy to:
000
Xxxxxx Xxxxxx, Xxxx #00
Xxxxxx,
XX 00000
Attention: Xxxxxxx
Xxx, Esq.
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
SECTION
8.02. Amendments; Waivers; No
Additional Consideration. No provision of this Agreement may
be waived or amended except in a written instrument signed by the Company, the
Parent and the Stockholders holding a majority of the Shares. No
waiver of any default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right. No consideration shall be offered or paid to any Stockholder
to amend or consent to a waiver or modification of any provision of any
transaction document unless the same consideration is also offered to all
Stockholders who then hold Shares.
SECTION
8.03. Replacement of
Shares. If any certificate or instrument evidencing any Shares
is mutilated, lost, stolen or destroyed, the Parent shall issue or cause to be
issued in exchange and substitution for and upon cancellation thereof, or in
lieu of and substitution therefor, a new certificate or instrument, but only
upon receipt of evidence reasonably satisfactory to the Parent of such loss,
theft or destruction and customary and reasonable indemnity, if
requested. The applicants for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs associated
with the issuance of such replacement Shares. If a replacement
certificate or instrument evidencing any Shares is requested due to a mutilation
thereof, the Parent may require delivery of such mutilated certificate or
instrument as a condition precedent to any issuance of a
replacement.
SECTION
8.04. Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Stockholders, the Parent and the
Company will be entitled to specific performance under this
Agreement. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
22
SECTION
8.05. Independent Nature of
Stockholders' Obligations and Rights. The obligations of each
Stockholder under this Agreement are several and not joint with the obligations
of any other Stockholder, and no Stockholder shall be responsible in any way for
the performance of the obligations of any other Stockholder under this
Agreement. The decision of each Stockholder to acquire Shares
pursuant to this Agreement has been made by such Stockholder independently of
any other Stockholder. Nothing contained herein, and no action taken
by any Stockholder pursuant thereto, shall be deemed to constitute the
Stockholders as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Stockholders are in any way acting
in concert or as a group with respect to such obligations or the transactions
contemplated herein. Each Stockholders acknowledges that no other
Stockholder has acted as agent for such Stockholder in connection with making
its investment hereunder and that no Stockholder will be acting as agent of such
Stockholder in connection with monitoring its investment in the Shares or
enforcing its rights under this Agreement. Each Stockholder shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Stockholder to be joined as an additional party in any
proceeding for such purpose. Each of the Company and the Parent
acknowledge that each of the Stockholders has been provided with this same
Agreement for the purpose of closing a transaction with multiple Stockholders
and not because it was required or requested to do so by any
Stockholder.
SECTION
8.06. Limitation of
Liability. Notwithstanding anything herein to the contrary,
each of the Parent and the Company acknowledge and agree that the liability of a
Stockholder arising directly or indirectly, under any transaction document of
any and every nature whatsoever shall be satisfied solely out of the assets of
such Stockholder, and that no trustee, officer, other investment vehicle or any
other affiliate of such Stockholder or any investor, shareholder or holder of
shares of beneficial interest of such Stockholder shall be personally liable for
any liabilities of such Stockholder.
SECTION
8.07. Interpretation. When
a reference is made in this Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated. Whenever the
words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”.
SECTION
8.08. Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule or Law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the Transactions contemplated
hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that Transactions contemplated hereby are fulfilled to the extent
possible.
23
SECTION
8.09. Counterparts; Facsimile
Execution. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties. Facsimile execution
and delivery of this Agreement is legal, valid and binding for all
purposes.
SECTION
8.10. Entire Agreement; Third
Party Beneficiaries. This Agreement (a) constitutes the entire agreement,
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the Transactions and (b) is not intended to
confer upon any person other than the parties any rights or
remedies.
SECTION
8.11. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof,
except to the extent the laws of Delaware are mandatorily applicable to the
Transactions.
SECTION
8.12. Assignment. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise by any of the parties without the prior written consent of the other
parties. Any purported assignment without such consent shall be
void. Subject to the preceding sentences, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
[Signatures appear on the
next page]
24
The parties hereto have executed and
delivered this Share Exchange Agreement as of the date first above
written.
The Parent: | CLAVIS TECHNOLOGIES INTERNATIONAL CO., LTD. | ||
|
By:
|
/s/ Hwan Sup Xxx | |
Name: Hwan Sup Xxx | |||
Title: C.E.O. | |||
The Company: | CLAVIS TECHNOLOGIES CO., LTD. | ||
|
By:
|
/s/ Hwan Sup Xxx | |
Name: Hwan Sup Xxx | |||
Title: C.E.O. |
The Stockholders: | ||
|
/s/ Hwan Sup Xxx | |
Xxxx Sup Xxx | ||
/s/ Xxxx San Xxx | ||
Xxxx San Xxx | ||
/s/ Xxx Xx Seo | ||
Xxx Xx Seo | ||
/s/ Tai Jong Xxxxxx | ||
Xxx Xxxx Xxxxxx | ||
/s/ Dong Hoon Oh | ||
Dong Hoon Oh | ||
/s/ Sung Eun Uh | ||
Sung Eun Uh | ||
/s/ Seung Sub Xxx | ||
Xxxxx Sub Xxx | ||
/s/ Sun Xxx Xxx | ||
Sun Xxx Xxx | ||
/s/ Hyun Xxxx Xxxx | ||
Hyun Xxxx Xxxx |
25
/s/ Soo Xxxx Xxx | ||
Soo Xxxx Xxx | ||
Chakatis Viboolcharern | ||
/s/ Xxx Xxx Xxx | ||
Xxx Xxx Xxx | ||
/s/ Yong Geun Son | ||
Yong Geun Son | ||
/s/ Seung Bum Xxxx | ||
Xxxxx Bum Xxxx | ||
/s/ Pill Gui Kang | ||
Pill Gui Kang | ||
/s/ Ki Young You | ||
Ki Young You | ||
/s/ Hyo Gon Xxx | ||
Xxx Gon Xxx | ||
/s/ Xxxxx Xxxx Kong | ||
Xxxxx Xxxx Kong | ||
/s/ Xxxxxx Xxxx Xxx | ||
Xxxxxx Xxxx Xxx | ||
/s/ Ji Xxx Xxxx | ||
Ji Xxx Xxxx | ||
/s/ Hyun Xxxxx Xxx | ||
Hyun Xxxxx Xxx | ||
/s/ Oung Sek Xxx | ||
Xxxx Sek Xxx | ||
/s/ So Xxx Xxx | ||
So Xxx Xxx | ||
/s/ Xxxx Xxxxx Jeon | ||
Xxxx Xxxxx Xxxx |
26
/s/ Xxxx Xxxx Xxx | ||
Xxxx Xxxx Xxx | ||
/s/ Gyung Il Xxx | ||
Xxxxx Il Xxx | ||
/s/ Xxxxx Xx Xxx | ||
Xxxxx Ho Xxx | ||
/s/ Ki Jun Seo | ||
Ki Jun Seo | ||
/s/ Ki Don Seo | ||
Ki Don Seo | ||
/s/ E Joo Seo | ||
E Joo Seo | ||
/s/ E Joung Seo | ||
E Joung Seo | ||
/s/ Xxxxx Wha La | ||
Xxxxx Wha La |
27